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.
In papers filed yesterday, Plaintiffs Michael Chamness, Daniel Frederick, and Rich Wilson asked the U.S. Court of Appeals for the Ninth Circuit to hear their historic case on Nov. 18, 2011.
Currently, the Top Two Primary is scheduled to kick in for the 2012 statewide election beginning Dec. 30, 2011, the first date on which California candidates may take out papers to run for federal and state office.
To date, the Top Two Primary law has disenfranchised voters in two consecutive special elections: in Congressional District 36 and Assembly District 4. Specifically, the law allows voters to cast write-in votes in the general election, but then bans those votes from being counted.
In a related development, 2012 Tea Party candidate Julius Galacki asked the Ninth Circuit to allow him to join Plaintiffs’ lawsuit. On top of disenfranchising voters, the Top Two Primary law illegally censors minor-party candidates, by forcing them to falsely state on the ballot that they have “No Party Preference”. To challenge this injustice, Mr. Galacki has switched his party registration from the Democratic Party to the Tea Party.
The Ninth Circuit is expected to rule on Plaintiffs’ hearing request next month.
MEDIA RELEASE – August 24, 2011
For Immediate Release
August 24, 2011
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.”
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.
On Thursday, Aug. 18, 2011, please join Gautam Dutta, Attorney-at-Law for an exclusive presentation: “Five Ways to Avoid Lawsuits”. How can you reduce your legal costs AND improve your bottom line? A good business lawyer can help you with not only the former, but also the latter.
A Yale, Georgetown and SEC-trained lawyer, Mr. Dutta will share his insights on how businesses can reduce legal costs, build goodwill, and improve their bottom line. Come join us! Learn more about Mr. Dutta at BusinessandElectionLaw.com.
Mr. Dutta will be speaking at the Fremont Chamber of Commerce, 39488 Stevenson Place # 100 (just west of the corner of Stevenson Blvd. and Mission Blvd.), Fremont, CA 94539.
Please call 415.236.2048 or email Dutta@BusinessandElectionLaw.com with any questions. See you on the 18th!
About GAUTAM DUTTA, Attorney-at-Law
A Yale and Georgetown-educated lawyer, Gautam Dutta specializes in corporate, securities, regulatory/public entity, election, and voting rights law.
Mr. Dutta was an enforcement attorney for the U.S. Securities and Exchange Commission (SEC) in Washington, DC for several years. After clerking at a federal district court in DC, Mr. Dutta worked as a commercial litigator at the Los Angeles firm of Buchalter Nemer. He has also served as tax counsel at the California Board of Equalization.
Between 2007 and 2010, Mr. Dutta was Deputy Director of the Political Reform Program at the New America Foundation. That program educated opinion leaders and the public about electoral alternatives (including Instant Runoff Voting and Proportional Representation). In this capacity, Mr. Dutta worked closely with the Los Angeles, Long Beach, and Pasadena City Councils. Last spring, Mr. Dutta wrote an amicus brief in federal court that successfully defended San Francisco’s innovative Instant Runoff Voting (IRV) system. Furthermore, he drafted and spearheaded legislative strategy for IRV bills in both the California Senate and Assembly.
Throughout his career, Mr. Dutta has played a prominent role in civic affairs. Mayor Antonio Villaraigosa appointed him to the position of commissioner on the Los Angeles Industrial Development Authority, which he served in from 2006 to 2007. Between 2005 and 2010, Mr. Dutta served on the Board of the American Civil Liberties Union (Southern California), where he was elected to the Executive Board. Mr. Dutta currently serves as Executive Director of Asian American Action Fund, a national political organization.
A prolific writer and political commentator, Mr. Dutta has been featured and quoted in top media outlets, including the San Francisco Chronicle, Sacramento Bee, San Jose Mercury News, Boston Globe, Associated Press, Los Angeles Daily News, Orange County Register, Huffington Post, Politico, and AAA-Fund Blog (of which he is Publisher).
In Washington, D.C., Mr. Dutta was President of the Asian Pacific American Bar Association Educational Fund, as well as Vice Chair of the District of Columbia’s Commission on Asian and Pacific Islander Affairs.
Mr. Dutta received his undergraduate degree in economics and German literature from Yale University and his law degree from Georgetown University. He was Editor-in-Chief of the Yale Political Monthly, and is fluent in Spanish, German, Hindi, and Bengali. Mr. Dutta is a member of the State Bar of California, the South Asian Bar Association, and the Asian Pacific American Bar Association.
From Ballot Access News:
On August 5, Julius Galacki asked the 9th circuit to let him intervene in the lawsuit called Chamness v. Bowen, which challenges two particular aspects of California’s top-two system. Galacki tried to file as a declared write-in candidate in last month’s run-off election for Congress in California’s 36th district, but his write-in declaration was rejected because California election law says that write-ins can’t be counted in the second round of Congressional elections.
The U.S. District Court then refused to let Galacki intervene, even though if he were allowed to intervene, he would be the only person in that lawsuit who has run, or attempted to run, for Congress as a write-in candidate. He is also the only person associated with the case who has declared an intent to run in 2012. Here is Galacki’s filing. Here is a very short procedural filing that was filed a few hours later.