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.
On Feb. 13, 2013, an influential federal appeals court will hold a hearing on whether a core part of the Top Two Primary law is unconstitutional.
Update (Feb. 1, 2013): The three judges who will hear the case: Marsha Berzon, Paul Watford, and James Carr (sitting by designation).
In Chamness v. Bowen, a number of candidates and voters have asked the U.S. Court of Appeals (Ninth Circuit) to decide whether the Top Two Primary’s implementing law is unconstitutional. In short, does the State have the power to force candidates to lie on the ballot, or to disenfranchise people who vote for write-in candidates?
The Ninth Circuit appeals court will devote a full 40 minutes of oral argument for Chamness — a large amount of time it reserves for only a small fraction of cases.
The Top Two Primary’s implementing law (Senate Bill 6) has violated the rights of Californians in two troubling ways. First, it violated the rights of minor-party candidates, by forcing them to falsely state on the ballot that they have “No Party Preference”. For example, Michael Chamness, who ran for U.S. Congress as a Coffee Party candidate, was forced to lie to voters that he had “No Party Preference”.
Second, Senate Bill 6 disenfranchised all voters who cast write-in votes in the general election. Earlier, Rich Wilson and Julius Galacki cast write-in votes that were not counted.
The hearing will be held at 9 am, Feb. 13, 2013, in Courtroom 3 of the Richard H. Chambers Courthouse, 125 South Grand Avenue, Pasadena, California.
The hearing is open to all members of the public. Parking is available in the lot opposite the courthouse.
Click here for more background on Chamness v. Bowen.
Update (Feb. 19, 2013): Click here to hear the audio transcript from the Feb. 13, 2013 hearing; and click here to read Ballot Access News’ account of the hearing.
Hear the story of our client Richard Winger (as told by Michael Hiltzik of the Los Angeles Times):
Here’s a question about Charles Munger Jr. that’s been buried by coverage of his $35 million in campaign spending to pass an anti-union initiative and torpedo Gov. Jerry Brown‘s tax initiative in next week’s election: Has he been maneuvering to bankrupt a public interest activist who had the temerity to mount a court challenge to one of his previous initiatives?
That’s the picture of the multimillionaire being painted by the activist, Richard Winger, 69, who has run San Francisco-based Ballot Access News since 1985. To say Winger’s efforts to track voter-rights litigation nationwide operate on a shoestring is to insult shoestrings; he says his income in each of the last two years came to $6,000.
Now he’s been hit with a $243,000 bill for legal fees incurred by Munger, Winger’s adversary in his unsuccessful lawsuit to overturn Proposition 14. That’s the Munger-backed 2010 “open primary” initiative that turned the general election into a runoff between the top two vote-getters in the primary, regardless of their party.
Experts in public interest law say the fee award, if it stands, will have a chilling effect on public advocates and community activists who use the courts to challenge government decisions and even private business deals. “If citizens who dare to challenge these corporate-funded propositions then have to pay these corporate lawyers, nobody’s going to do it,” Rosenfield observes.
The fee award astonishes even experts who disagree with Winger’s legal position, such as Richard Hasen, an election law expert at UC Irvine. In his authoritative Election Law Blog thus summer, Hasen called the award “absolutely outrageous,” arguing that such assessments against losing litigants are justified only when an action is frivolous or in bad faith. “This lawsuit was neither,” he wrote.
Read the rest of Richard’s compelling story here.
Yesterday the final round of legal papers on California’s new Top Two Primary was filed in an influential federal appeals court.
Mr. Chamness, Frederick, and Wilson filed their Opening Brief on January 31, 2012. One month later, Attorney General Kamala Harris filed opposition papers on behalf of Secretary of State Debra Bowen.
The U.S. Court of Appeals (Ninth Circuit) has not yet indicated when it will hear this case.
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.
This week, the first round of legal papers on California’s new Top Two Primary was filed in an influential federal appeals court. On January 31, 2012, Michael Chamness, Daniel Frederick, and Rich Wilson filed their Opening Brief, which you can read here. You can also access a number of background documents here.
Our Brief shows that California’s Top Two Primary Law violated the rights of Californians in two troubling ways. First, it unconstitutionally violated the rights of minor-party candidates, by forcing them to falsely state on the ballot that they have “No Party Preference”. Second, the Top Two Primary law disenfranchised all voters who cast write-in votes in the general election.
Secretary of State Debra Bowen, who is being represented by Attorney General Kamala Harris, will file her opposition papers on March 1, 2012. We will then file our Reply Brief on March 15, 2012.
The U.S. Court of Appeals (Ninth Circuit) has not yet indicated when it will hear this case.
Update (Mar. 16, 2012): Yesterday Plaintiffs Michael Chamness, Daniel Frederick, and Rich Wilson filed their Reply Brief, which you can access here. You can also access a number of background documents here.
– Gautam Dutta
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.
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.
Green and Libertarian candidates and voters have asked to join California’s Top Two Primary lawsuit, because party primaries could be restored for the looming 2012 statewide election.
Charles Richardson and David Steinman, who respectively belong to the Libertarian and Green Parties, will run for Congress in the 2012 statewide election. Randi Clausen and Andrew Arnold, who respectively belong to the Green and Libertarian Parties, intend to vote for them in the 2012 statewide election.
Steinman, Richardson, Arnold, and Clausen seek to immediately join the Top Two Primary lawsuit, because it could restore their right to participate in their respective party’s primary.
Previously, California elected its federal and state leaders through a party-primary system. During the June primary election, parties like the Libertarian and Green Parties had the constitutional right to nominate candidates for the November general election.
On January 1, 2011, Proposition 14 and Senate Bill 6 eliminated California’s party-primary system. Under the new Top Two Primary system, all federal and state candidates would square off against one another in the June 5, 2012 primary election. The top two votegetters, regardless of party, would then advance to the November 6, 2012 general election.
If the Court rules that Proposition 14 is unenforceable, California’s former party-primary system will likely be restored. That is, parties like the Green Party and the Libertarian Party will regain the right to nominate candidates for the 2012 general election.
Click here for a copy of the Motion to Intervene filed by Richardson, Steinman, Clausen and Arnold. The U.S. Court of Appeals for the Ninth Circuit is expected to rule on this matter shortly.
Pivotal Payments, a company that processes credit-card transactions for a number of California businesses, recently withdrew nearly $20,000 from the bank account of one of our clients without his permission.
Last week, we filed a lawsuit against Pivotal Payments in connection with this matter.
A disenfranchised voter new rules has asked a state court to allow her to join the Top Two Primary litigation.
Last spring, Placer County resident Linda Hall cast a write-in vote that was not counted. In that special election for Assembly District 4, the names of two candidates appeared on the ballot, along with a slot for write-in candidates.
Ms. Hall cast a write-in vote for Dennis Campanale, whose name also appeared on the ballot. However, her vote was not counted.
Under the Help America Vote Act of 2002 (HAVA), California adopted a special rule for write-in voting. If a voter writes in the name of a candidate whose name already appears on the ballot, her vote must be counted (see p.3 of 8, Item 8 here).
However, under the Top Two Primary’s rules, all write-in votes that are cast in a general election must be thrown away: “A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.”
To vindicate her fundamental right to vote, Ms. Hall filed court papers on Nov. 2, 2011. The California Superior Court is expected to rule on this matter on Dec. 2, 2011, 9:30 am, 400 McAllister St., Department 302, San Francisco, CA 94102.