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MEDIA RELEASE – January 11, 2013
Federal Appeals Court Sets Hearing for California’s Top Two Primary
For Immediate Release
January 11, 2013
CONTACT:
Gautam Dutta (415) 236-2048, Dutta AT BusinessandElectionLaw.com
Federal Court Sets Hearing for Top Two Primary
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.
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.
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MEDIA RELEASE – March 17, 2012
Briefing Concludes in Top Two Primary Appeal
For Immediate Release
March 17, 2012
CONTACT:
Gautam Dutta (415) 236-2048, Dutta AT BusinessandElectionLaw.com
Briefing Concludes in Top Two Primary Appeal
Yesterday the final round of legal papers on California’s new Top Two Primary was filed in an influential federal appeals court.
On March 15, 2012, 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.
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.
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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MEDIA RELEASE – July 19, 2011
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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MEDIA RELEASE – June 8, 2011
For Immediate Release
June 8, 2011
CONTACT:
Gautam Dutta (415) 236-2048, dutta@businessandelectionlaw.com
Federal Court Cancels Oral Argument for Top Two Primary Case
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.
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MEDIA RELEASE – Mar. 29, 2011
For Immediate Release
Mar. 28, 2011
CONTACT:
Gautam Dutta (415) 236-2048, dutta@businessandelectionlaw.com
Congressional Candidate Asks Appeals Court To Delay Ballot Printing
Secretary of State Debra Bowen Defends, May Benefit from New Election Law
SAN FRANCISCO – A Congressional candidate has asked a federal appeals court to delay the printing of ballots in his race until his appeal is decided.
This evening, Michael Chamness, a candidate who is seeking to succeed former Congressmember Jane Harman, filed an emergency appeal with the Ninth Circuit Court of Appeals in San Francisco.
Although it has been set for May 17, 2011, ballots for the special primary election in Congressional District 36 will begin being printed on Wednesday (Mar. 30, 2011).
The first batch of the ballots will be mailed to overseas and military voters on Saturday (Apr. 2, 2011). Overseas and military voters account for 0.75 percent of all voters in Congressional District 36. The second, and larger, batch of vote-by-mail ballots must be mailed on April 23, 2011 – three weeks later.
“It is imperative that no ballots be printed or mailed until this case is decided. As soon as the first ballot in his election is mailed to voters, Michael Chamness will suffer irreparable harm,” said Gautam Dutta, Mr. Chamness’ attorney.
Unless the appeals court intervenes, Mr. Chamness will be forced to state on the ballot that he has “No Party Preference” – even though he is affiliated with the Coffee Party.
Like the better known Tea Party, the Coffee Party is not a state-recognized political party. Between 1891 and 2010, California law allowed minor-party candidates like Mr. Chamness to identify themselves on the ballot as “Independent”.
Senate Bill 6 (SB 6), a law that was passed by the Legislature without any hearings or debate, now bans minor-party candidates from identifying themselves as “Independent”
Secretary of State Debra Bowen, one of several candidates competing against Mr. Chamness, is expected to oppose Mr. Chamness’ appeal. Unlike Mr. Chamness, Ms. Bowen will be allowed to tell voters that she is a “Democrat” on the ballot for the Congressional special election.
“SB 6 violates my constitutional right to tell voters what I stand for,” Mr. Chamness said. “It’s just wrong to treat a candidate like myself worse just because I’m not a Democrat or Republican.”
Earlier today, Mr. Chamness was informed that he had qualified to appear on the ballot for the special election in Congressional District 36.
On February 18, 2011, Mr. Chamness had asked a trial court in Los Angeles to stop SB 6 from being used in the looming Congressional election. However, that court has not yet issued a ruling.
Click on the link below to download Mr. Chamness’ Petition for a Writ of Mandamus: http://gautamdutta.files.wordpress.com/2010/10/petition-for-mandamus-filed-3-28-11.pdf
More background on this case may be found at http://businessandelectionlaw.com/sb6/.
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MEDIA RELEASE – Feb. 23, 2011
For Immediate Release
Feb. 23, 2011
CONTACT:
Gautam Dutta (415) 236-2048, dutta@businessandelectionlaw.com
Candidate Files Federal Lawsuit to Block “Top Two” Primary
Secretary of State Debra Bowen May Benefit from Law She Has Defended
LOS ANGELES – A Coffee Party candidate running to succeed departing Congresswoman Jane Harman (CA-36) has filed a federal lawsuit to block the implementation of California’s new “Top Two” open primary.
SB 6 will be used in a special election to replace departing Congresswoman Harman; current Secretary of State Debra Bowen is among the half dozen candidates who have declared their intention to run in the special election. Vote-by-mail ballots in that election could be cast in a matter of weeks.
Unless an injunction is granted, voters will see a “no party preference” on the ballot for plaintiff Michael Chamness because the Coffee Party is not considered a “state recognized” political party. Under SB6, a “no party preference” label is applied to all minor-party candidates like Mr. Chamness and puts him at a disadvantage compared to Democratic or Republican candidates. Previously, minor-party candidates were allowed to use the ballot label of “Independent.”
Mr. Chamness’ lawsuit challenges the constitutionality of Senate Bill 6 (SB 6), the law that implements Proposition 14’s “Top Two” Primary. The lawsuit argues that SB 6, which was passed by the Legislature in the middle of the night without opportunity for public comment, unfairly discriminates against and deprives minor-party candidates like Mr. Chamness of their fundamental rights.
Secretary of State Debra Bowen, who announced her candidacy in the same Congressional race, will soon benefit from SB 6’s discriminatory election rules. Unlike Mr. Chamness, Secretary Bowen, the State’s chief elections officer who is responsible for defending this lawsuit, will be able to list her party’s name on the ballot – because she belongs to a major party.
“It’s unconstitutional, undemocratic, and just plain wrong to force any candidate to lie to voters,” said Gautam Dutta, Mr. Chamness’ attorney.
Mr. Chamness, a Los Angeles resident, is affiliated with the Coffee Party, a minor (non-state-recognized) party. A number of political groups, including the Tea Party, are minor parties.
“It’s unjust to discriminate against a candidate like myself just because I’m not a Democrat or Republican,” Mr. Chamness said. “SB 6 does a grave disservice to voters because it forces false information to be printed on the ballot.”
Last week, Mr. Chamness became the first candidate to fall victim to California’s new “Top Two” Primary law. On the Feb.15, 2011 special election ballot for Senate District 28, Mr. Chamness was forced to falsely state that he had “No Party Preference”.
On March 21, 2011, a federal judge in Los Angeles will hold a hearing on Mr. Chamness’ request to block SB 6’s new rules. If the judge grants his request, the Top Two Primary will be put on hold until a new law is passed to replace SB 6.
Click on the links below to download the most recent court documents:
More background on this case may be found at http://businessandelectionlaw.com/sb6/.
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MEDIA RELEASE – JAN. 25, 2011
For Immediate Release
Jan. 25, 2011
CONTACT:
Gautam Dutta (415) 236-2048, dutta@businessandelectionlaw.com
New California Election Law Claims First Victim
Minor-Party Candidate Forced to Lie to Voters
LOS ANGELES – California’s new “Top Two Primary” law has claimed its first victim: State Senate candidate Michael Chamness, who was forced to falsely tell voters that he has “No Party Preference”.
In a looming special election for Senate District 28, Mr. Chamness was forced to state on the ballot that he has “No Party Preference” – even though he is registered with the Coffee Party, a minor (i.e., non-state-recognized) party.
Vote-by-mail ballots have already been mailed to voters in Senate District 28, which extends from West Los Angeles to Los Angeles County’s South Bay. Voters can mail or hand-deliver those ballots anytime between now and February 15, 2011. A copy of the sample ballot can be downloaded here.
Senate Bill 6 – the core part of Proposition 14 which forced Mr. Chamness to make that false statement – was passed by the Legislature in the middle of the night two years ago. In stark contrast, Senate Bill 6 (SB 6) allows Democratic and Republican candidates to state their party’s name on the ballot.
“SB 6 forces minor-party candidates to lie to voters,” said Gautam Dutta, Mr. Chamness’ attorney. “It’s wrong to treat a candidate worse just because he’s not a Democrat or Republican,” Mr. Dutta added.
Before SB 6 took effect, minor-party candidates had the right to a party label of “Independent”. SB 6 now forces those candidates to say they have “No Party Preference”.
Last November, the late State Senator Jenny Oropeza was re-elected two weeks after she died – triggering the special election in Senate District 28. Vote-by-mail ballots were mailed to voters on Friday, and the special election will be held on Feb. 15, 2011.
Earlier this month, Mr. Chamness asked a state appeals court in San Francisco for permission to join a constitutional challenge against SB 6. Attorney General Kamala Harris’ office has until 5 pm today to decide whether it will challenge Mr. Chamness’ Motion to Intervene (Field v. Bowen, California Court of Appeal Case No. A129946).
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MEDIA RELEASE – DEC. 15, 2010
For Immediate Release
Dec. 15, 2010
CONTACTS:
Jenny Jiang (323) 761-9580, jenny.jiang@gmail.com
Gautam Dutta (415) 236-2048, dutta@businessandelectionlaw.com
Statement from Plaintiffs on Today’s California Supreme Court Decision Not to Hear Field vs. Bowen (SB 6 / Prop 14 Top Two Primary Lawsuit)
“Today the High Court decided not to take our case at this time. We do have an appeal pending in the California Court of Appeal, and we intend to pursue that appeal. We call upon the State Legislature and the Governor-Elect to fix the problems in SB 6 that have been identified by this lawsuit and conceded by the Secretary of State.”
- Gautam Dutta, attorney for the plaintiffs
For more information on the case, please visit http://businessandelectionlaw.com/sb6.
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MEDIA RELEASE – NOV. 30, 2010
BREAKING NEWS — The California Supreme Court schedules briefing for Field vs. Bowen, the SB 6 / Prop 14 “Top Two” primary lawsuit. Click here to download the California Supreme Court’s letter to the California Attorney General’s office, and here to read the plaintiffs’ opening brief. The Attorney General has until Dec. 6 to file an opposition on behalf of the Secretary of State, and the plaintiffs will have until Dec. 9 to file their reply brief.
MEDIA RELEASE – NOV. 29, 2010
FOR IMMEDIATE RELEASE
DATE: Nov. 29, 2010
CONTACTS:
Gautam Dutta (415) 236-2048, dutta@businessandelectionlaw.com
Jenny Jiang (323) 761-9580, jenny.jiang@gmail.com
Plaintiffs Ask California Supreme Court to Strike Down New Election Law
Appeal Could Affect Special Election To Replace Deceased Senator
SAN FRANCISCO – The plaintiffs in Field vs. Bowen have asked the California Supreme Court to strike down SB 6, the new state law that implements Proposition 14′s Top Two Open Primary. In their appeal, the plaintiffs argue that SB 6 will irreparably harm the constitutional rights of minor-party candidates throughout California.
“SB 6 will force minor-party candidates — but not major-party candidates — to tell voters they have ‘No Party Preference’. Simply put, it is unconstitutional to treat a candidate worse just because he or she is not from the ‘in crowd,’” said Gautam Dutta, the attorney for the plaintiffs.
The Governor could call the first election to implement SB 6 as early as next Monday, including a special election to replace State Senator Jenny Oropeza (District 28) who was re-elected two weeks after she unexpectedly died.
In their appeal, the plaintiffs are joined by two prospective candidates in Senate Districts 28 and 17, respectively: Michael Chamness and Carol Winkler.
Mr. Chamness, a prospective Coffee Party candidate, intends to run in the special election in Senate District 28 (formerly held by the late State Sen. Jenny Oropeza). That election could be held as early as Feb. 1, 2011. Candidate nomination papers in that special election could be due by Dec. 20, and requests for vote-by-mail ballots may have to be processed as early as Jan. 3, 2011.
Unless the state’s High Court intervenes, Mr. Chamness will be banned from identifying himself as a “Coffee Party” candidate on the ballot. Instead, he will be forced to falsely state that he has “No Party Preference.”
Ms. Winkler, a prospective Independent candidate, intends to run in the special election in Senate District 17 (to be vacated by the incumbent State Senator George Runner). That election could be held as early as Mar. 1, 2011. Candidate nomination papers in that special election could be due by Jan. 17, 2011, and requests for vote-by-mail ballots may have to be processed as early as Jan. 31, 2011.
Unless the state’s High Court intervenes, Ms. Winkler will be banned from identifying herself as an “Independent” candidate on the ballot. Instead, she will be forced to falsely state that she has “No Party Preference.”
Please click on the links below to download the court documents:
- SB 6 CA Supreme Court Case S188436 plaintiffs’ petition for writ of mandate (11.24.10).pdf
- SB 6 CA Supreme Court Case S188436 plaintiffs’ reply brief in support of petition for writ of mandate (12.9.10)
- SB 6 CA Supreme Court Case S188436 complaint in intervention (Chamness) lodged 11.24.10.pdf
- SB 6 CA Supreme Court Case S188436 motion to intervene (Chamness) 11.24.10.pdf
- SB 6 CA Supreme Court Case S188436 motion to intervene (Winkler) 11.29.10.pdf
Visit www.businessandelectionlaw.com/sb6 for updates.
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