Business & Election Law | Gautam Dutta

MEDIA RELEASE – August 24, 2011

For Immediate Release
August 24, 2011

CONTACT:

Gautam Dutta (415) 236-2048, Dutta AT BusinessandElectionLaw.com

Top Two Primary Fight Heads to Federal Appeals Court

Appeals Court Allows In Critical Evidence Challenging the Legality of California’s Controversial New Election Law

Los Angeles, CA:  The legal battle surrounding California’s controversial Top Two Primary has reached an influential federal appeals court.

This afternoon, a federal trial court refused to declare that a core part of California’s controversial new election regime is unconstitutional.  In response, Plaintiffs Michael Chamness, Daniel Frederick, and Rich Wilson immediately asked the Ninth Circuit Court of Appeals to reverse the lower court’s decision.

Earlier, the Ninth Circuit Court of Appeals made a key ruling:  it allowed in critical evidence that directly challenges the legality of the Top Two Primary law.

Last summer, Secretary of State Debra Bowen’s office publicly stated that the Top Two Primary law — Senate Bill 6, passed by the Legislature in the middle of the night without any debate — would (a) trick candidates into believing they could run as write-in candidates, (b) trick voters into believing they could cast a write-in vote that would be counted, and (c) harm minor-party candidates by banning them from stating on the ballot that they are “Independent”:

Since … SB 6 precludes [write-in] votes from being counted, it makes no sense to give candidates the illusion that they can run as a write-in or give voters the illusion that they can write in a candidate’s name and have it counted.  Making these conforming changes is only controversial because there is a lawsuit on this issue that essentially states “SB 6 says don’t count the votes, so it’s misleading to let people think they can write in a candidate’s name and have it counted.”[1]

Proposition 14′s Top Two Primary was the brainchild of former Governor Arnold Schwarzenegger and former Lieutenant Governor Abel Maldonado.

To date, the Top Two Primary law has disenfranchised write-in voters in two straight elections:  the May 3, 2011 election for Assembly District 4 and the July 12, 2011 election for Congressional District 36.

Last month, the lower court also refused to allow 2012 Tea Party candidate Julius Galacki to challenge the Top Two Primary law, even though it will force him to falsely state on the ballot that he has “No Party Preference”.  In order to bring his constitutional challenge, Mr. Galacki had switched his voter registration from the Democratic Party to the Tea Party.  Mr. Galacki has filed an appeal with the Ninth Circuit.

Briefing on the Top Two Primary appeal will begin shortly.

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From Ballot Access News:

This afternoon, a federal court in Los Angeles court refused to allow a Tea Party candidate to join the lawsuit against a core part of California’s new Top Two Primary.

To call attention to the troubling flaws of the Top Two Primary, Julius Galacki had earlier switched his party registration from the Democratic Party to the Tea Party.  In fact, his constitutional rights have already been violated in two troubling ways.  First, he was deprived of his fundamental right to run as a write-in candidate in the July 12, 2011 special congressional election.  Second, the write-in vote that he had cast for himself was not counted — a brazen violation of his fundamental right to vote.

Mr. Galacki intends to run for Congress next year as a Tea Party candidate.  Unless the Top Two Primary’s rules are put on hold, he will be forced to falsely state on the ballot that he has “No Party Preference” — an outright violation of his right to free speech.

Mr. Galacki will appeal the court’s decision at an appropriate time.  The court will hold a hearing in this litigation (Chamness v. Bowen) on Aug. 22, 2011, 2:30 pm.

MEDIA RELEASE

For Immediate Release
July 19, 2011

CONTACT:

Gautam Dutta (415) 236-2048, Dutta@BusinessandElectionLaw.com

Tea Party Candidate Seeks to Join Top Two Primary Lawsuit

Prominent GOP Candidate Opposes Tea Party Candidate’s Effort; Court Hearing Set for Aug. 22

Tea Party candidate Julius Galacki has asked a federal court for permission to join a lawsuit against Proposition 14′s Top Two Primary.  Unless that lawsuit succeeds, Tea Party and all other minor-party candidates will be forced to falsely state on the ballot that they have “No Party Preference”.

Proposition 14′s Top Two Primary was the brainchild of former Governor Arnold Schwarzenegger and former Lieutenant Governor Abel Maldonado, who is running for Congress as a Republican.  On Friday, Maldonado and California Secretary of State Debra Bowen asked the court to ban Mr. Galacki from joining the lawsuit (Chamness v. Bowen).

To call attention to two illegal parts of Proposition 14′s Top Two Primary, Mr. Galacki has changed his party registration from the Democratic Party to the Tea Party — and intends to run for Congress next year as a Tea Party candidate.  Mr. Galacki, a Los Angeles resident and playwright, lives and votes in Congressional District 36.

“I’m making a point,” Mr. Galacki said, “that it’s a lie to say I have ‘No Party Preference’.  Of course, I have a preference!

“This law creates an inferior, second-class status for anyone from a small party, and that’s truly un-American, unconstitutional and just plain wrong,” Mr. Galacki said.  “It’s not just the Democrats and Republicans who have a right to label themselves as they see fit, but any American who qualifies to run for political office,” he added.

Chamness v. Bowen challenges the constitutionality of two core parts of the Top Two Primary:  (1) its Party Preference Ban, which forces minor-party candidates to falsely state on the ballot that they have “No Party Preference”, and (2) its Vote Counting Ban, which bans write-in candidates from running and bans lawfully cast write-in votes from being counted in every general election.

Earlier, Mr. Galacki sought to run as a write-in candidate in the July 12, 2011 special general election for Congressional District 36.  Even though state law allows write-in candidates to run in “any” election, Mr. Galacki was not allowed to run for Congressional office.

Subsequently, Mr. Galacki cast a write-in vote for himself in the July 12, 2011 Congressional election.  On July 12, 2011, his write-in vote was not counted.

“On top of censoring candidates, the Top Two Primary illegally disenfranchises voters and disqualifies candidates from running for office.  Simply put, the Top Two Primary must be put on hold until the Legislature has fixed its troubling flaws,” said Gautam Dutta, Mr. Galacki’s attorney.

Mr. Galacki filed his Motion to Intervene in this case late last week, and filed his Reply Brief this morning.  The court is expected to issue a ruling on his Motion to Intervene shortly.

On May 6, 2011, Plaintiffs Michael Chamness, Daniel Frederick, and Rich Wilson filed a Motion for Summary Judgment, which asked the trial court to declare that Proposition 14′s implementing law (Senate Bill 6) is unconstitutional.  On May 30, 2011, Plaintiffs filed their Reply Brief.

After cancelling oral argument earlier this summer, Judge Otis D. Wright II announced last week that he would reschedule oral argument for Aug. 22, 2011, 2:30 pm, in Courtroom 11, U.S. District Court, 312 N. Spring St., Los Angeles, CA  90012.  Judge Wright also indicated that he was inclined to rule against Plaintiffs.  If necessary, Plaintiffs will take this important case to the Ninth Circuit Court of Appeals.

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This morning, a federal judge cancelled oral argument in Chamness v. Bowen, which challenges the constitutionality of two core parts of Proposition 14′s Top Two Primary:  (1) its Vote Counting Ban, which bans lawfully cast write-in votes from being counted in every state and federal general election, and (2) its Party Preference Ban, which forces minor-party candidates to falsely state on the ballot that they have “No Party Preference”.

On May 6, 2011, Plaintiffs Michael Chamness, Daniel Frederick, and Rich Wilson filed a Motion for Summary Judgment, which asked the trial court to declare that Proposition 14′s implementing law (Senate Bill 6) is unconstitutional.  On May 30, 2011, Plaintiffs filed their Reply Brief.  Earlier, the trial court had set oral argument for June 13, 2011.

The trial court did not indicate when it would issue a ruling on Plaintiffs’ Motion for Summary Judgment.

On Friday evening, a federal judge rejected Secretary of State Debra Bowen’s bid to delay our case involving Proposition 14 (the Top Two Primary).  Secretary Bowen is running for Congress from the 36th Congressional District, in the first federal election to be run under Proposition 14′s controversial rules.

Our lawsuit — which was filed by Coffee Party candidate Michael Chamness, write-in candidate Daniel Frederick, and voter Rich Wilson — challenges the constitutionality of Senate Bill 6, a core part of Proposition 14.

Specifically, SB 6 disenfranchises voters by banning write-in votes from being counted in the general election, and harms independent candidates by forcing them to state on the ballot that they have “No Party Preference”.  If we prevail, Proposition 14 will be put on hold until the Legislature fixes the defects of Senate Bill 6.

In an emergency (ex parte) motion, Ms. Bowen had essentially asked the court to delay the litigation until the end of the year.  We vigorously opposed her bid to delay this important case, and the court agreed that it should not be delayed.

The court has set the hearing on our Motion for Summary Judgment for June 13, one month before the July 12 general election in Congressional District 36.

After a brief visit to the federal appeals court, Michael Chamness’ case has returned to the trial court in Los Angeles.

Earlier, Mr. Chamness had asked the appeals court to block overseas and military ballots from being mailed until it could rule on the case.  After the Ninth Circuit Court of Appeals declined to make an immediate ruling, Mr. Chamness decided to bring his case back to the trial court.  In this way, the trial court can fully consider the claims of all three plaintiffs in this case:  Michael Chamness, Daniel Frederick, and Rich Wilson.

More updates to come.