From Ballot Access News (http://www.ballot-access.org/?p=34745):

On July 3, the Ninth Circuit upheld California law that requires independent candidates for Congress and partisan state office to have “No party preference” on the ballot instead of the label “independent.” However, the ruling leaves open for a future lawsuit the related issue of whether the law is unconstitutional as applied to members of unqualified parties; the law requires “no party preference” for them as well. The case is Chamness v Bowen, 11-56303.

The 26-page opinion says there is no evidence that “no party preference”, instead of “independent”, injures independent candidates. The decision does not mention the point that California still permits independent presidential candidates to use the word “independent” on the ballot. The opinion suggests that it is rational for California to bar the word “independent”, because otherwise there might be confusion with candidates who are members of the American Independent Party. The decision does not mention the decisions of the Massachusetts Supreme Court and the Minnesota Supreme Court that ruled “independent” is too basic a word to be banned for independent candidates.

Footnotes four and five of the decision both say that this opinion does not express any opinion as to whether or not it is unconstitutional to force a member of an unqualified party to be forced to have “no party preference” on the ballot. Footnote five, on page 18, says that the 1980 California Supreme Court decision Libertarian Party of California v Eu does not control that issue, and ends by saying, “We therefore express no views as to the validity of California’s restriction against stating preferences for non-qualified parties.” The largest and most active non-qualified parties in California are the Reform Party, the Constitution Party, and the Justice Party; all three of them are political bodies, which means the Secretary of State recognizes that they are trying to qualify and instructs county election officials to keep a tally of their registration figures, so the state will know if they ever do qualify or re-qualify.

Yesterday a federal court quashed Pivotal Payments’ bid to move our client’s case from state to federal court.

Last November, our client sued Pivotal Payments (a credit-card processing company), because Pivotal had taken nearly $20,000 from his bank account without his permission.

Over the winter holidays, Pivotal moved the case from state court to federal court.  In January, we asked a federal court to return the case to state court.

In response, Judge Edward J. Davila granted our request without even holding a hearing.  Judge Davila ruled that his court did not have jurisdiction over our client’s case.  In other words, this case must be heard in state court, not federal court.

Judge Davila’s ruling can be accessed here.

Recently, one of our clients sued Pivotal Payments (a credit-card processing company), because Pivotal had taken nearly $20,000 from his bank account without his permission.

Over the winter holidays, Pivotal moved the case from state court to federal court.  Last week, we asked a federal judge to send the case back to state courtClick here to read our court papers.

Update (Feb. 11, 2012):  Last week, the briefing process concluded when we filed our Reply Brief, which you can read here.  A federal judge in San Jose is scheduled to hear this matter on March 16, 2012, 9 am.

Update (Mar. 16, 2012):  The federal judge granted our request to return this case to state court.

Disclaimer:  This column does not provide legal advice.  Please consult with a lawyer to discuss how best to handle your specific legal issue.

As civic leaders, we care not only about the success of our business, but the welfare of our clients, staff and community-at-large.  And as a lawyer, I will be the first to admit the obvious:  many of you would rather get a root canal than see a lawyer.

On that note, I would like to share five time-honored ways to minimize your legal budget:

1. Treat your customers and business partners with candor and respect. Goodwill will not only improve your bottom line, but can save you from being served with a lawsuit.  Contrary to conventional wisdom, it’s not “fun” to take a case to court:  most people try to avoid doing so at all costs.  The bottom line:  if someone feels that he or she has been treated with respect, he or she will be less likely to sue – and will be far more willing to compromise.

2. Listen to your staff’s concerns. A respectful relationship with your staff will not only boost morale, but nip potential problems in the bud.  People seek out a lawyer only as a last resort.  If they have serious concerns, it is important to hear them out.  By keeping an open-door policy with your staff, you can help ensure that you (and not an outside lawyer) will be the first person that they approach when a serious issue arises.

3. Confirm “handshake” deals with a short email. Because business relationships are based on trust, it sometimes makes sense to seal some agreements with a handshake.  But as Ronald Reagan was fond of saying:  Trust, but verify. If a particular part of the agreement was critical to a deal, you should memorialize it in a short email to the other party – immediately after the deal has been struck.  This will not only ensure that everyone is on the same page, but help prevent misunderstandings that could later lead to costly litigation.

4. Imitate, but don’t infringe. Imitation is the highest form of flattery – until you are accused of infringing a copyright or patent.  Today, every business must have a robust online presence.  But when designing your website, make sure to dot your i’s and cross your t’s – because many photographs and images that are publicly available are copyrighted.  If you post them without permission, you could face stiff penalties.

5. Don’t sue (unless it makes business sense). Beyond costing thousands of dollars, lawsuits divert time and energy away from your business.  Before you file a lawsuit, ask yourself (and your lawyer) two questions.  First, do we have a case? And second, does it make business sense to sue? If the answer to the second question is no, you should strongly consider other alternatives.

A Yale and Georgetown-trained attorney, Gautam Dutta has served as an Enforcement Attorney with the U.S. Securities and Exchange Commission and as a Tax Attorney to former State Board of Equalization Chair (and current State Controller) John Chiang.  He may be contacted at Dutta AT BusinessandElectionLaw.com, or click here for his contact information.

This evening, the West Coast’s top federal appeals court asked the Attorney General’s office to defend a core part of California’s Top Two Primary Law.

At 4:40 today, Congressional candidate Michael Chamness filed an emergency appeal with the Ninth Circuit Court of Appeals in San Francisco.  Thirty minutes later, we learned some interesting news:  The Court has asked the Attorney General to file a brief — by 12 noon tomorrow (Friday).

Why the rush?  Because unless the Court acts, ballots for the May 17 Congressional race to replace Jane Harman will be mailed in 48 hours to overseas and military voters.  Those ballots will falsely say that Coffee Party candidate Michael Chamness has “No Party Preference”.

Basically, we have asked the Court for an injunction to stop the overseas ballots from being mailed until our appeal has been decided.  We’ll find out by tomorrow evening what it decides.

You can access the emergency brief we filed here.

Note:  This piece was first published on Mar. 12, 2011 at AAA-Fund Blog.

Another $pecial Election in CA

A couple weeks back, Jane Harman unexpectedly resigned from her seat in Congress.  As a result, about 750,000 folks in Los Angeles County’s South Bay do not currently have anyone looking out for their interests in the halls of Congress — until a special election is held to elect Harman’s successor.

On Monday, residents of California’s 36th Congressional District will get a mixed blessing.  The good news:  the Governor will finally set the first round of the special election for May 17.  (The Governor had hoped to combine it with a statewide election on the budget, but it doesn’t look like a budget deal will come together in time.)

But here’s the bad news:  LA County will have to shell out anywhere from $2 to $4 million of taxpayer dollars to pay for the special election.  You see, this race will probably go to two rounds.  Here’s the rule:  if someone gets a majority (50% plus 1) in round 1, she wins outright.  Otherwise, the election will go to a second round.

Although the district leans strongly Democratic, three prominent Democrats have thrown their hat in the ring:  Los Angeles Councilmember Janice Hahn, California Secretary of State Debra Bowen, and progressive activist Marcy Winograd.  Because the three will fracture the Democratic vote, it’s virtually certain that the election will go to a July 12 runoff.

Could this election be decided in one round instead of two?  It sure could.  Last year, State Senator Loni Hancock introduced a bill (SB 1346) that would have given counties the option of using Instant Runoff Voting for special elections.  Had that bill passed, LA County voters and taxpayers could have been spared the hassle and cost of a second election.

With Instant Runoff Voting, voters can elect a consensus winner in one election, not two:  by ranking their choices (1-2-3).  (Yep, that’s the very same way the Oscars pick their Best Picture winner.)  The savings?  Up to $2.5 million per election.  (Full disclosure:  last year, I educated civic leaders and elected officials about SB 1346.)

Unfortunately,  SB 1346 died in the Senate Appropriations Committee.  Secretary of State Debra Bowen, the State’s chief elections officer, took no position on the bill.

Over the past two decades, California has had nearly five special elections per year for state or federal office — and this year’s no exception.  As of Monday, we have already seen four special elections called to replace state and federal lawmakers.  In these challenging economic times, wouldn’t it make sense to give both voters and taxpayers a break?

Where do the candidates in Congressional District 36 stand on Instant Runoff Voting, especially when it comes to costly special elections?  Do they support adopting a voting method that will save taxpayer dollars while making our votes more meaningful?

It’s time for someone to step up and lead.

– Gautam Dutta

Update (Mar. 13, 2011): We just received the following response from candidate Marcy Winograd:

I support instant run-off voting because it saves the taxpayer money,  engages campaigns in coalition-building, and encourages voters to cast ballots for preferred candidates, rather than candidates perceived as most-likely to win.  Count me in on IRV.

Marcy Winograd

Candidate, 36th Congressional District

This post was published at ZocaloPublicSquare.org and Huffington Post.

Who should prevail in a popularity contest featuring several choices? Should one measure depth or breadth of support?

Consider the classic “What movie should we see?” conundrum. Five guys want to go see a movie, two of them want to see Black Swan, but the other three say that’s the last movie they’d ever want to see. Trouble is, they’ve each offered up a different first choice (though they can all agree on an alternative). Do they go see Black Swan regardless, because it was the sole movie to receive 2 votes?
The American political system would dictate that they all go experience Natalie Portman’s angst. It’s the top vote getter, period. See Bill Clinton, 1992. But the Academy Awards, knowing a thing or two about movies, offers a rebuke to our political tradition: a voting system at the Oscars that values consensus and seeks to avoid the discomfort of a majority.

To understand what the Academy of Motion Pictures Arts and Sciences is up to, consider this year’s 10 nominees for best picture. By the accounts of the legions of journalists and websites who track this race, three films are mostly likely to win the Oscar. They are:

  1. The King’s Speech: The crowd-pleasing classic about a monarch who finds his voice is the leading contender for the Academy’s largest statuette. It’s that rare thing – an uplifting, art house period piece!
  2. Black Swan: This edgy drama about a ballet dancer’s unraveling has received both brickbats and bouquets. It’s like “The Piano,” one of those movies that is either hauntingly moving, or just plain annoying, depending on your sensibility.
  3. The Social Network: This fast-paced and widely respected chronicle of how Harvard geeks changed the way we live is a solid contender, timely and widely respected.

The top three span the gamut of genres. So how will Hollywood’s “deciders” pick the winner?

If the vote were conducted as most American elections are — where everyone picking their favorite from a long list of candidates — a film wouldn’t need a majority to win. In a field of 10, a candidate could win with as little as 11 percent of the vote — a far cry from consensus.

Two years ago, however, as the Academy expanded the number of best picture nominees from five to 10, it also adopted a new way of voting for the finest film of the year. It’s called Ranked Choice Voting.

Here’s how it works. RCV allows voters to rank one’s top choices (1-2-3). If a nominee is the first choice of the majority of all voters, it will win outright. But if no one receives a majority (as is likely this year), the interesting part begins. The last-place finisher will be eliminated, and voters who had picked it as their first choice will have their votes transferred to their second choice. This process continues until one nominee gets a majority.

The Academy is onto something. The five guys in my opening hypothetical wouldn’t have gone, in all likelihood, to see Black Swan. It’s desirable in any selection process — be it about dinner, the Oscars or a political election — to satisfy a majority of those making the decision. Because winning a majority helps confer legitimacy. A system that allows voters to cast only one vote, for one person, can produce an outcome that a majority doesn’t like. That makes life difficult in a democracy. Think of the political wars that stemmed from the elections of Bill Clinton and George W. Bush, who both won despite the fact that most of the country wanted someone else.

The benefits of ranking choices extend beyond legitimacy to the value of getting a fuller, more accurate picture of voter sentiment. In the current Oscar race, “younger” voters (in the case of the Academy that means anyone under 50) may be torn between The Social Network and the techno-thriller Inception. In such a scenario, Inception could siphon off enough votes from Social Network, spoiling the latter’s chances. This is not unlike the “spoiler” roles Ralph Nader and Ross Perot played in past Presidential elections.

So what if a voter really likes Inception but doesn’t want to hurt Social Network‘s chances? On the one hand, he could vote his conscience and go with Inception. On the other, he could “strategically” vote for his second choice, which has a real chance to win.

But by ranking choices, Academy members can vote their conscience, without having to worry about sinking the chances of their second choice. If you like both Inception and Social Network, you can register both preferences.

Questions are often raised about such a system, whether the setting is the Oscars or the American cities that use some form of ranked choice voting (Among them: Oakland and San Francisco).

Such questions are about the nature of excellence. A novel film or an unusually forward-thinking politician might also be divisive. Should we care if a film does not have a consensus of support?

This brings me back to Black Swan. On a ballot where you could pick only one film, Black Swan, backed by its ardent supporters, might have a chance of obtaining out a few more votes than The King’s Speech, which may be more broadly liked by the Academy members. But would that be a desirable outcome, even if the winner got only 15 or 20 percent of the votes? Compared to Social NetworkBlack Swan would likely be the second choice of exceedingly few Oscar voters. To nameBlack Swan best picture would be to say that a vocal minority should have more of a say than a broad majority.

Can this sort of analysis help you win your Oscar pool? Perhaps.

I’ve studied and advocated for ranked choice voting systems for years. Here is my educated guess of how this race breaks down — and how the use of ranked choice voting will shape the result.

Although King’s Speech probably heads into the polls as the top vote getter, it will fall short of a majority of first place votes (50 percent plus 1) in a crowded field.
So Best Picture will come down to whether King’s Speech or Social Network get enough second-choice rankings to push either over 50 percent.

Here’s my take on which of these Oscar favorites would be the second choice of the other seven nominees:

The King’s Speech - second choice of fans of Toy Story 3127 Hours and The Fighter
The Social Network – second choice of fans of Inception and The Kids Are All Right
Black Swan - second choice of fans of True Grit and Winter’s Bone

Based on this lineup, I would give King’s Speech the edge. It is the sort of contestant built for a ranked choice contest, in that it offers something for everyone, and is likely to pile up second-choice and third-choice rankings.

That being said, Social Network is far from being out of the running. Without Ranked Choice Voting, Social Network would not have stood a chance against King’s Speech. But since a film must now garner majority support via second and perhaps third choice rankings, it now has a viable shot at winning — if it can attract enough of those votes. Unlike Black Swan, hardly anyone had an unkind word for this Facebook tale.

Meanwhile, no matter what you think of Hollywood’s new voting process — which I believe is fairer and more democratic (small “d”) — here’s one thing we can all agree on: it will help the Oscars make more money. Put simply, Ranked Choice Voting has made it feasible to select from ten Best Picture nominees. With more movies to draw fans to the telecasts, the Oscars can secure higher TV ratings and ad revenues.

Hmm, a decision-making process that builds consensus and helps make money? Perhaps that’s something that our elected officials should look into.

– Gautam Dutta

Gautam Dutta

Business and Election Lawyer

Posted: January 17, 2011 01:10 PM

A few weeks back, the California Supreme Court declined to hear an appeal about a core part of Proposition 14 (aka, the “Top Two” Primary).  As a result, a state appeals court in San Francisco will soon hear legal arguments on two troubling flaws of what we affectionately call the Humpty-Dumpty Law:  Senate Bill 6, which fleshes out crucial details of Prop 14.

Here are the two questions the court will look at:

1.             Can a law disenfranchise voters who mark their ballots for write-in candidates?

2.             Can Tea Party and other minor-party candidates be forced to say that they have “No Party Preference”?

Both of these issues could play a prominent role in two looming elections in Southern California.  On February 15, 2011, voters will be asked to decide who will succeed the late State Senator Jenny Oropeza (who was re-elected two weeks after she died) and former State Senator George Runner (who resigned after being elected to another office).  If no candidate wins a majority, the top two votegetters (even if they are from the same party) will advance to a runoff election on April 19, 2011.

How did we get here? The Legislature passed Senate Bill 6 (SB 6) on February 19, 2009, between the “business” hours of 3:40 am and 6:55 am.  Needless to say, state lawmakers held no debate or public hearings before putting SB 6 to a vote.  One year later, Proposition 14 was approved by a narrow majority of voters.  Why were voters never given the chance to also vote on SB 6, which fleshes out critical details of Prop 14’s new election rules?

Do write-in candidates really matter? Look no further than Lisa Murkowski, who was just re-elected to the U.S. Senate from Alaska — as a write-in candidate.  SB 6 explicitly states that all write-in votes cast “at the general election … shall not be counted.”  Thus, SB 6 would have robbed Senator Murkowski of her hard fought victory, because all votes cast for her would have been thrown away.  Here in California, write-in candidate Donna Frye nearly won the San Diego mayoral election in 2004.

Why should we care about minor-party candidates? Think caffeine.  Like it or not, the Tea Party has already made its mark on American politics.  Until last year, Tea Party and other minor-party candidates were allowed to describe themselves on the ballot as “Independent”.  But once SB 6 kicks in, candidates from every minor (i.e., non-state-recognized) party will be foisted with the ballot label of “No Party Preference”.  By illegally forcing candidates to make misleading statements on the ballot, SB 6 will do voters a grave disservice.

How much will it cost taxpayers to implement SB 6? According to the California Association of Clerks and Election Officials, SB 6 will cost millions of taxpayer dollars at a time when teachers and police officers are being laid off.  Does it make sense to waste precious tax dollars on an unconstitutional law?

Who filed this lawsuit? A broad coalition of civic leaders and political reformers brought this case to defend the fundamental rights of all Californians.  We have not accepted funding from any political party.

What happens if this case succeeds? If we prevail, SB 6 will be struck down because it is unconstitutional.  In turn, Proposition 14 – which would remain on the books – would be placed on hold until a new law is passed to replace SB 6.

Can the two flaws identified by this lawsuit be immediately fixed? Yes.  Although SB 6 is sitting on a wall, its Humpty-Dumpty election rules do not have to fall.  In fact, the Legislature could have fixed SB 6’s defects last year - and it still has one last chance to do so before the courts decide SB 6’s fate.

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