This post is somewhat lengthy. My purpose is to get
feedback to my own conclusion that a particular
California election law proposal would be held
unconstitutional, at least relative to congressional
elections.
An initiative petition is now circulating in
California called the "Voter Choice Open Primary",
which would apply to congressional and state
elections. All candidates would run on a single
ballot in March. Even if someone got over 50% of the
vote, the top two vote-getters would run against each
other again in November. By contrast, in county and
city elections in California (which have been
non-partisan since 1913), if someone gets 50% of the
vote in the first round, that person is elected; no
run-off is held.
The reason that the proponents of the initiative
provide for a run-off between the top two vote-getters
(even when someone gets over 50% in the first round)is
Foster v Love, 522 US 67 (1997). That decision said
that Congress has told the states to hold their
congressional elections in November (with a run-off
following November permitted). As a result of that
decision, Louisiana now holds its first round of
congressional elections in November. In the few races
in which no one gets 50%, a run-off is held in
December.
I believe that the proponents of the California
initiative should have followed the Louisiana model.
Because they didn't, their initiative is probably
unconstitutional under Williams v Rhodes and its
progeny. No one believes that the Louisiana system of
congressional elections is unconstitutional. Minor
party members, major party members, and independent
candidates, all run in the November congressional
elections in November. No group is excluded from the
November campaign. Although many people don't like
the Louisiana system, no one argues that it
discriminates against minor parties, because minor
party congressional candidates are on the November
ballot.
Because Congress has mandated that states hold their
congressional elections in November, the March round
in the California initiative is not a true "election";
instead it is a screening device, determining how
candidates may qualify for the November ballot. There
are only three decisions, dealing with complaints from
minor parties or independent candidates about such
screening devices. Those cases are Socialist Workers
Party v Secretary of State of Michigan, 317 NW 2d 1
(1982); Munro v Socialist Workers Party, 479 US 189
(1986, from Washington state); and Erum v Cayetano,
881 F 2d 689 (9th cir. 1989, from Hawaii). In all
three cases, the plaintiff-candidate had to poll a
certain percentage of the vote in the first round, in
order to appear on the November ballot. The
thresholds were three-tenths of 1% in the Michigan
case; 1% in the Washington case; and the lesser of the
lowest vote cast for any party nominee, or 10%, in the
Hawaii case. The Hawaii law only applies to
independent candidates, not minor parties.
All three decisions analyzed the vote requirement in
the first round under the traditional ballot access
precedents. That is, all three courts evaluated the
percentage of votes needed in the first round, as
equivalent to petition signatures. As some of you
already know, the precedents on petitions in ballot
access cases are well established. 5% and lower
numbers are plainly constitutional; 15% and above are
plainly unconstitutional. Storer v Brown, 415 US 724
(1974) said anything substantially above 5% is
probably unconstitutional. Lower courts have
invalidated 10% petition requirements in North
Carolina and Arkansas, and have invalidated 7%
petitions in Ohio and Arkansas.
When California used a blanket primary in 1998 and
2000, and in all special congressional and legislative
elections 1967 to the present, the 2nd place finisher
in the first round polled, on the average, 25% of the
vote. Therefore, the initiative provides a screening
device that keeps all candidates off the November
ballot unless they show 25% support in March. And
under the ballot access precedents, it is
unconstitutional to have a "showing of support"
threshold greater than 10%.
Also, the US Supreme Court has said repeatedly that a
state can't keep all minor party and independent
candidates off its general election ballot. Yet when
one examines the 1998 and 2000 blanket primary results
from California, and the special elections 1967 to the
present (which use blanket primaries) one finds that
no minor party member ever placed first or second in
that first round, in all 398 elections (except for the
obvious 12 cases in which only one major party member
was running). Even Audie Bock, who was elected to the
legislature as a Green in a special election in 1999,
did not place first or second in the first round in
her election, so even a minor party member who
actually won the election, would have been barred,
under the initiative.
Professor Rick Hasen seems to say on page 96 of his
new book, The Supreme Court and Election Law, that in
1997, in Timmons v Twin Cities Area New Party, 520 US
351, the US Supreme Court ended ballot access
constitutional protection for minor parties and
independent candidates. If he is saying that, I don't
believe he is in the mainstream. Since Timmons came
out, minor parties and independent candidates have
overturned restrictive ballot access laws or practices
in court in 10 states (Alabama, Alaska, Arizona,
Arkansas, Kansas, Maryland, New Jersey, New York,
Pennsylvania and Wisconsin). I do not read Timmons to
mean that the Supreme Court's previous constitutional
protections for ballot access for minor party and
independent candidates are undermined.
Proponents of the initiative take comfort from Justice
Scalia's second-to-last paragraph in Calif. Democratic
Party v Jones, 530 US 567 (2000), saying a
"nonpartisan blanket primary" would be OK. But I
believe every neutral observer would agree that Scalia
was referring to the system Louisiana has been using
since 1997. As I mention above, no minor party or
independent candidate is disadvantaged by the
Louisiana system, but the Louisiana system is not the
system used by the California initiative.
In an earlier posting, Professor Dan Lowenstein
declined to express an opinion on the
constitutionality of the California initiative, but he
said he opposes the initiative and that those of us
who oppose it should concentrate on defeating it at
the ballot box, not in court. However, advertising
for the initiative says the proponents "recruited
nationally known constitutional scholars and election
law experts" to write the initiative. They say "The
current measure has been rewritten by constitutional
scholars and election-law experts to meet objections
laid out by the Court in its 2000 decision."
Since the proponents are claiming that experts agree
that the initiative is constitutional, the opponents
need to respond. I would be pleased if anyone would
respond to my argument that the initiative is likely
to be held unconstitutional, under Williams v Rhodes.
The proponents do not name any experts who feel the
initiative is constitutional. If you agree with me
that the initiative would be held unconstitutional,
are you comfortable being quoted in possible future
press releases by opponents of the initiative?
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