[EL] Calif. legislature passes election bill that violates Calif. Constitution?

[Richard Winger]

I think the California Constitution does now prevent California from enforcing any sore loser laws for Congress and state office, if the sore losers are running just as write-ins in November.

As to people who vote early, the 9th circuit wrestled with that in Voting Integrity Project v Keisling, 259 F 3d 1169 (2001), and said that the federal law mandating congressional voting in November is satisfied when states let voters vote early, because the US Supreme Court in Foster v Love had interpreted the federal law to require that congressional voting be "consumated" in November.  But the 9th circuit opinion says it is a difficult and close question.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Tue, 1/31/12, David A. Holtzman <David at HoltzmanLaw.com> wrote:

From: David A. Holtzman <David at HoltzmanLaw.com>
Subject: Re: [EL] Calif. legislature passes election bill that violates Calif. Constitution?
To: law-election at department-lists.uci.edu
Date: Tuesday, January 31, 2012, 3:22 PM


  

    
  
  
    
    
    Top Two is in the Calif. Constitution
        now, and Top Two
        requires no write-ins -- cannot admit write-ins -- in the
        top-two (final)
        round. 
    The Ballot Access News (BAN) post
        argues that without
        write-ins in November, June-November Top Two violates federal
        law which “tells
        the states to hold congressional elections in November of
        even-numbered years.”  The
        BAN post reasons that therefore “the
        November event ‘is’ the ‘election’; the election is not in
        June.” 
    And so (here’s the state constitutional
        part of the argument):
        voters whose candidates (write-in or otherwise) lost or didn’t
        compete in the
        June round can’t, as required by the Calif. Constitution
      -- in a phrase
      that predates the Top Two amendment -- “vote for the candidate of their
      choice in all state
      and congressional elections.”
    By this reasoning, pre-November
        primaries can never be
        part of elections, and sore loser laws violate state
        constitutions in states
        with similar phrases in their constitutions. 
    The reasoning also suggests that
        ballots cast in
        October should not be counted as part of congressional
        elections. 
    I would bet against the BAN argument. 
      -
        dah 
    

    On 1/31/2012 7:40 AM, Richard Winger wrote:
    
      
        
          
            http://www.ballot-access.org/2012/01/31/california-legislature-passes-bill-eliminating-write-in-space-from-general-election-ballot-for-congress-and-partisan-state-office/

              

              Richard Winger

              415-922-9779

              PO Box 470296, San Francisco Ca 94147
          
        
      
      

      
      

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      -- 

        David
          A. Holtzman, M.P.H., J.D.

          david at holtzmanlaw.com
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