Pursuing Richard's optimistic suggestion that I am capable of
speaking for myself, I did not intend to express an opinion on the
constitutional issues he has raised regarding minor parties. I gave reasons
for believing the proposal is not unconstitutional under a Tashjian/Jones
theory.
Among election-law scholars, I am no doubt very far over on the side
that is unsympathetic to constitutional claims of minor parties.
Furthermore, in general I would be happy if minor parties almost never
qualified for the ballot. Still, I believe they have a right to do so.
Belief in freedom means believing in the rights of people to do some things
that one does not believe have a constructive effect. I therefore believe
that Richard is persuasive in arguing that the freezing out of minor
parties' ability to appear on the ballot is a significant drawback of this
proposal. I have not thought through the question whether it renders the
proposal unconstitutional and do not offer an opinion on it.
My main reason for opposing the proposition is that although there
may be no constitutional right for elections to be structured around party
nominations, I believe it is very healthy that they should be so structured
at the state level.
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148
-----Original Message-----
From: ban@richardwinger.com [mailto:richardwinger@yahoo.com]
Sent: Friday, October 03, 2003 9:46 AM
To: election-law@majordomo.lls.edu
Subject: "Voter Choice Open Primary Act" in California
Dan Lowenstein can speak for himself, of course, but
in his first post on the "Voter choice open primary
act", he didn't say he thinks it is constitutional.
He said, "I do not think we should rely on the courts
this time. We should try to defeat it at the polls".
Of course minor party members have no automatic right
to appear on any state's general election ballot. The
U.S. Supreme Court has ruled that states may put
severe restrictions on their ability to get on the
general election ballot. But the Court has also said
that states can't make it impossible. In Storer v
Brown and Mandel v Bradley, the Court said that a
restriction should be judged on how often it is used.
And Williams v Rhodes says that even minor parties
without enough strength to win elections must still be
given a chance to be on the general election ballot.
In Munro v Socialist Workers Party, the Court upheld a requirement that
minor party members in the blanket primary poll 1%. The Court noted in
footnote 11 that, since the restriction had been imposed, 36 out of 40 such
minor party candidates had successfully qualified for the general election
ballot. That is a far cry from the California proposal, where in 398 actual
primary outcomes in California when this type of primary was used, no minor
party member ever placed first or second (except in 12 instances when only
one member of a major party was running, so obviously in those cases the
minor party couldn't fail to come in 2nd).
And, stepping aside from discussions of
constitutionality, and looking at good policy, how can
anyone support a measure that would eliminate all
minor party members from general election ballots? It
is a truism, but a true truism, that minor parties
introduce new ideas and then give everyone a chance to
find out how much appeal they have. Confining minor
party members to doing all their campaigning in the
months of January & February of an election year (when
most voters are most interested in the intra-party
struggles for the Democratic and Republican Parties),
and keeping them out of the general election campaign
season, is heavy-handededly repressive. At least
Washington state's system involved a primary in
mid-September, very dissimilar from California's early
March primary.
--- Rick Hasen <Rick.Hasen@lls.edu> wrote:
I have been working for some time as a consultant to
the committee sponsoringthe Voter Choice Open Primary
(VCOP). I won't comment extensively here,except to
say that I agree with Dan that the VCOP is
constitutional, andthat Tashjian and Jones are not an impediment to VCOP's
constitutionality. I also want to point Richard Winger to the Munro case,
where, in the contextof Washington's blanket party primary (thus different
from the VCOP),the Supreme Court said that so long as minor parties receive
reasonable accessto the primary ballot, it was no constitutional
infringement if they didnot have an automatic right to appear on the general
election ballot (thethreshold in Munro was 1% of all votes cast in the
blanket primary; the VCOPelevates the top two vote getters---which could
include candidates registeredwith major parties, minor parties, or no
parties---to the general electionballot). Rick
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