May 17, 2012

CA Election Law Fight Heads to Appeals Court

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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Court Refuses to Allow Candidate to Join Top Two Primary Lawsuit

This afternoon, a federal court in Los Angeles court refused to allow a Tea Party candidate to join the lawsuit against a core part of California’s new Top Two Primary.

To call attention to the troubling flaws of the Top Two Primary, Julius Galacki had earlier switched his party registration from the Democratic Party to the Tea Party.  In fact, his constitutional rights have already been violated in two troubling ways.  First, he was deprived of his fundamental right to run as a write-in candidate in the July 12, 2011 special congressional election.  Second, the write-in vote that he had cast for himself was not counted — a brazen violation of his fundamental right to vote.

Mr. Galacki intends to run for Congress next year as a Tea Party candidate.  Unless the Top Two Primary’s rules are put on hold, he will be forced to falsely state on the ballot that he has “No Party Preference” — an outright violation of his right to free speech.

Mr. Galacki will appeal the court’s decision at an appropriate time.  The court will hold a hearing in this litigation (Chamness v. Bowen) on Aug. 22, 2011, 2:30 pm.

– Gautam Dutta

Tea Party Candidate Seeks to Join Top Two Primary Lawsuit

For Immediate Release
July 19, 2011

CONTACT:

Gautam Dutta (415) 236-2048, Dutta AT 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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Court Cancels Hearing on CA's Top Two Primary

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.  Click here for more detailed information about this important case.

– Gautam Dutta

SF Chronicle Called on the Carpet

Ed. Note:  This piece by our friend Steven Hill was first published at BeyondChron.com.

Community Leaders Accuse Chronicle of Attacks on Minority Representation

In a hard-hitting exposé, two community leaders from the Bay Area have accused the San Francisco Chronicle and the Chamber of Commerce of attacks on political reforms that have boosted minority representation. Writing for the New America Media, a collaboration of over 2000 ethnic news organizations across the United States, Esperanza Tervalon-Daumont, executive director of Oakland Rising and Alicia Garza, co-executive director of People Organized to Win Employment Rights (POWER) in San Francisco, have criticized the Chronicle and Chamber for their current campaign to repeal political reforms like ranked choice voting and public financing of campaigns that have resulted in greater minority representation (see “Reforms That Helped Elect Candidates of Color in SF, Oakland Under Attack.”)

Ranked choice voting (RCV, also known as instant runoff voting) allows voters to rank their first-, second- and third- choice candidates when they cast their ballots for city officials, thus avoiding costly runoff elections. In last November’s mayoral election in Oakland, RCV helped Jean Quan overcome a 4-to-1 spending disadvantage by the favored candidate, former Senate pro tem and state powerbroker Don Perata, to become the first Asian-American woman directly elected mayor of a major U.S. city. In San Francisco, RCV and public financing have helped elect the most diverse Board of Supervisors in the city’s history. Currently, 8 out of 11 supervisors are people of color, including four Asians (three of whom are Chinese); three are female and two are openly gay. Since RCV and public financing became the law, the number of ethnic minorities elected to the Board of Supervisors has doubled.

“What do the Chronicle and the Chamber of Commerce have against representation from communities of color?” ask Tervalon-Daumont and Garza in their article. They provide an account of the Chronicle’s recent reporting, showing that the Chronicle has published more than three dozen articles, columns and blog posts since the November 2010 election highlighting RCV, many with a negative slant. One column calling for repeal of RCV was written by the Chronicle’s editorial page editor. Another recent anti-RCV article, featured on the top of page one as the Chronicle’s lead story, was based on a methodologically dubious poll commissioned by the Chamber of Commerce, a known RCV opponent. In that poll, a confusing question unsurprisingly led most respondents to say “I don’t know” which was then spun as evidence of massive voter confusion (one close source says that the Chamber refused to release other polling results that showed RCV in a positive light).

Not coincidentally, “voter confusion” is one of the claims that the San Francisco Chronicle has consistently featured in its anti-RCV reporting. Yet the Chronicle has entirely ignored the fact that a highly respected research organization at San Francisco State University has conducted exit polls following two different RCV elections and both showed the same result – 87% of respondents said they “understood” RCV. And those positive results cut across all ethnic and racial lines. The Chronicle also ignored an exit poll conducted by the Asian Law Caucus which had similar findings as the SFSU polls. “Wouldn’t those SFSU polls have been worth a mention in an article about voter confusion?” ask Tervalon-Daumont and Garza in their article. “If the Chronicle truly believes RCV is confusing, why didn’t it publish more articles aimed at educating voters before last November’s election?”

Their article also connects the dots to reveal the collusion between the Chronicle and the Chamber of Commerce by pointing out that the president of the Chamber of Commerce, Steve Falk, is the Chronicle’s former publisher. In addition, the Chronicle’s current president, Mark Adkins, is on the Chamber’s board of directors, a type of interlocking directorship that is frowned upon by media watchdogs.

A doubling of minority representation is not the only “RCV positive” that the Chronicle has ignored. Tervalon-Daumont and Garza point out that ranked choice voting has significantly boosted voter turnout, especially in communities of color. In the November 2010 election for Oakland’s mayor that elected Jean Quan, nearly 119,000 voters participated, compared to 84,000 voters in the June 2006 mayoral election. That’s a huge increase of 42% in voter turnout (see this report on the Oakland election, and this one on turnout in city council districts, which all saw large increases in voter turnout). By holding the decisive election in November, when minority voters turn out in far greater numbers to vote for president and governor than they do in June elections, a lot more Oaklanders voted in the mayoral contest.

In the 34 races held in San Francisco since the first RCV elections in 2004, nearly all of them have seen more voters participating in the final RCV tally than in the old December runoffs. A study of the 2005 Assessor Recorder’s race found that RCV had increased citywide voter participation in the decisive round of that race by 168%, or 120,000 voters more than likely would have voted in a December runoff. Moreover, the study found that voter participation tripled in six of the poorest and most minority neighborhoods due to having a RCV election in November rather than a December runoff. In short, a lot more voters in San Francisco and Oakland are having a say in who their local elected officials are, and that has been especially true for ethnic minorities. Yet the Chronicle has never reported on any of this.

Tervalon-Daumont and Garza also point out that ranked choice voting has been good for communities of color because the ranked ballots allow these communities to build coalitions and prevent vote-splitting if there are multiple minority candidates. For example, RCV allowed four major Latino candidates to run in San Francisco’s District 9 supervisorial race in 2008. Under the old December runoff system, the four Latino candidates likely would have split the Latino vote. But with RCV, voters were able to rank several of those candidates on their ballot. In 2010 in San Francisco’s District 10 race, an African-American candidate won by picking up the second and third rankings from many of the supporters of other black, Asian and white candidates in a district that historically has elected a black supervisor. In the 2005 assessor recorder’s race, people feared that the Asian vote would split between Phil Ting and Ron Chun, but that didn’t happen when Ting won by picking up second rankings from most Chun supporters.

In short, minority voters and their candidates have preserved the voting cohesiveness of their communities by making smart, strategic use of ranked ballots. That ability will be particularly important in the November 2011 mayoral election in San Francisco where there are three Asian candidates running – State Senator Leland Yee, Assessor-Recorder Phil Ting, and Board of Supervisors president David Chiu. If San Francisco was still using the old December runoff system, write Tervalon-Daumont and Garza – which the San Francisco Chronicle and Chamber of Commerce want to go back to – there is no doubt that the Asian vote would split among these three candidates, possibly resulting in none of them making a separate runoff. “To prevent that from happening, the Asian community would have already seen all sorts of backroom wheeling and dealing,” they write, “as powerbrokers twisted arms to keep two of those candidates out of the race. But with RCV, all of them can run—generating unprecedented excitement in the Asian community. Whichever candidate proves strongest will emerge with the most Asian first-, second- and third-place votes.”

I asked nearly a dozen San Francisco Chronicle editors and reporters to respond to these pointed accusations from these minority leaders. I specifically asked them why their articles had never mentioned the fact that ethnic minority representation on the San Francisco Board of Supervisors has doubled since the onset of RCV and public financing of campaigns. I’ve always thought that the Chronicle employs a few decent reporters, yet not a single one of them was able to articulate a coherent response to that very specific question. Instead, one editor at the Chronicle got very defensive and testy, calling the charge “nonsensical” and saying my e-mail to her was “unprofessional and attacking.”

Tervalon-Daumont and Garza concluded, “Apparently the Chronicle does not value diversity and broad representation.” That’s putting it mildly. In fact, the Chronicle’s masthead, editorial office, columnists and newsroom are still for the most part as white as the Pillsbury Dough Boy. So it should be no surprise that communities of color see the Chronicle as not very “representative” of the diversity of the Bay area. Which is a shame, because this region badly needs a good daily newspaper. San Francisco is the 12th largest city in the nation by population, but the Audit Bureau of Circulation ranks the Hearst-owned Chronicle 24th in the nation in circulation. So the Chronicle is clearly punching far below its weight when it comes to selling its newspaper. Indeed, the Chronicle is a mere shadow of its former self, having lost half of its readership since 2004, with a whopping 26% loss in 2009 alone, reportedly the largest percentage drop in circulation of any major newspaper in the United States.

While many newspapers have lost readership to online news sources, I really believe that the Chronicle’s ill fortunes also stem from the fact that it is so woefully out of touch with the broad array of communities that inhabit this region. The demographics of the Bay Area are changing rapidly, and the Chronicle would receive a desperately needed boost in its readership if these diverse communities thought the Chronicle reflected their interests. Look at the San Francisco Board of Supervisors — 8 out of 11 members are ethnic minorities. Do the Chronicle editors and reporters really think their newspaper reflects the values and priorities of this city’s diverse communities as much as the San Francisco Board of Supervisors, elected by ranked choice voting?

If the Chronicle can’t figure out how to represent and serve this region, it might as well go the way of newspaper dinosaurs like the Seattle Post-Intelligencer, another Hearst-owned daily, and the Rocky Mountain News (Denver), which not that long ago closed up daily operations and shriveled to online-only newspapers.

[Steven Hill (www.Steven-Hill.com) is a political writer and columnist whose books include “Europe’s Promise: Why the European Way is the Best Hope in an Insecure Age” and “10 Steps to Repair American Democracy.” His op-eds and articles have been published by the New York Times, Los Angeles Times, Wall Street Journal, Washington Post, the Guardian, Financial Times, The Nation, Beyond Chron, and many others, including the San Francisco Chronicle.]

CA Top Two Primary Hearing Set for June 13

From our friends at Ballot Access News:

On May 30, the plaintiffs in Chamness v Bowen filed this rebuttal brief. Chamness v Bowen is the federal lawsuit that challenges two particular details of California’s top-two primary election system: (1) although California prints write-in space on November ballots for Congress and state office, those write-ins can never be counted, even if a write-in candidate receives the most votes; (2) California lets some party members list their party on the ballot but won’t let others do so.

All briefs are now in, and the hearing will be on June 13 in Los Angeles.

Detailed information about this important lawsuit can be found here.

CA's Top Two Election Foibles

Will Top Two Primary Ever Get Its Shot?

Will Top Two Primary Ever Get Its Shot?

By Joe Mathews

Ed. Note:  This piece was first published at NBC Bay Area.com.

The top-two primary, also known as the open primary, was approved last year by voters as part of an effort to produce more moderate elected officials in California. In these primaries, the top-two candidates, regardless of party, advance to the genearl election. The theory behind top-two is that, in a partisan district, the top two candidates might be from the same party, so the winner would likely be the more moderate candidate — the one most appealing to independents and voters of the other party.

The problem in the first few elections under top-two has been that there’s no test of the theory. The top two candidates have been one Democrat and one Republican in a handful of special legislative elections this year. The 36th Congressional District primary this Tuesday was supposed to end this trend, with two Democrats — LA City Councilwoman Janice Hahn and California Secretary of State Debra Bowen– favored to advance.

But a little known Republican, businessman Craig Huey, may have spoiled the party. He holds a narrow lead over Bowen for second place — and a spot in the general election — with provisional ballots to be counted later this week.

If Huey triumphs, it will be a reminder of a fundamental problem with top-two. There are few districts and elections that will produce the conditions that could produce a moderate winner.

– Joe Mathews

BREAKING: Debra Bowen Fails to Make the Cut

California Secretary of State Debra Bowen has been eliminated from the congressional race to succeed former Rep. Jane Harman.  According to numbers just released by LA County Registrar Dean Logan, Bowen’s now 750 votes behind second-place finisher Craig Huey.

While Bowen may ask for a recount, it’s unlikely that the outcome will change.  Under California’s new (and controversial) Top Two Primary rules, only the top two votegetters will advance to the general election:  Los Angeles Councilmember Janice Hahn (a Democrat) and publisher Craig Huey (a Republican).

Hahn will be strongly favored to win the July 12, 2011 special general election in the heavily Democratic 36th Congressional District.  We’ll keep you posted.

Update (4:51 pm PST): According to breaking reports, Bowen has conceded.

– Gautam Dutta

Judge Quashes Debra Bowen's Bid to Delay Voting Rights Case

On Friday evening, a federal judge rejected Secretary of State Debra Bowen’s bid to delay a case involving Proposition 14 (the Top Two Primary).  Secretary Bowen is running for Congress from the 36th Congressional District, in the first federal election to be run under Proposition 14′s controversial rules.

The lawsuit — which was filed by Coffee Party candidate Michael Chamness, write-in candidate Daniel Frederick, and voter Rich Wilson — challenges the constitutionality of Senate Bill 6, a core part of Proposition 14.

Specifically, SB 6 disenfranchises voters by banning write-in votes from being counted in the general election, and harms independent candidates by forcing them to state on the ballot that they have “No Party Preference”.  If the plaintiffs prevail, Proposition 14 will be put on hold until the Legislature fixes the defects of Senate Bill 6.

In an emergency (ex parte) motion, Ms. Bowen had essentially asked the court to delay the litigation until the end of the year.  The plaintiffs vigorously opposed her bid to delay this important case, and the court agreed that it should not be delayed.

The court has set the hearing on the plaintiffs’ Motion for Summary Judgment for June 13, one month before the July 12 general election in Congressional District 36.

Detailed information about this important case can be found here.

– Gautam Dutta

E-Signatures on the Rise

Ed’s Note: As Joe Mathews recently reported, e-signatures are gaining traction in politics, especially for initiatives. For this reason, AAA-Fund recently submitted an amicus brief in a high-profile California case.

February 7, 2011

The Honorable James J. Marchiano
California Court of Appeal, First Appellate District, Division 1
350 McAllister Street
San Francisco, CA  94102-4712

Re:       Request to File Amicus Letter in Support of Appellant Michael Ni

(Ni v. Slocum, Case No. A128721)

Dear Presiding Justice Marchiano and Associate Justices:

On behalf of Asian American Action Fund, we respectfully ask the Court’s permission to file this amicus letter.

We ask the Court to rule in favor of Appellant Michael Ni, because a fundamental right is at stake for Asian Americans and other emerging communities:  the right to fully participate in the initiative process.  Because this right is a matter of great “public concern”, this Court may exercise “great liberality” in admitting this amicus letter.[1]

Asian Americans and Pacific Islanders, who make up over one-seventh of California’s residents, comprise one of our nation’s fastest growing communities.  Since 1999, AAA-Fund, a national political organization (aaa-fund.org & aaa-fund.com), has given Asian Americans and Pacific Islanders a powerful voice in the political process.  Towards that end, we spearhead grassroots events and discussions that enable more Asian Americans to participate in the political process, including a recent Candidates Town Hall in Los Angeles on the 2010 California Attorney General race.

We wish to underscore one critical point raised by Mr. Ni in his appeal.  Namely, Elections Code §100 should be interpreted broadly, so that it enables more voters to take part in the political process.  In this manner, the Court will enable a rising generation of voters to actively partake in the initiative process.

The Problem:  Currently, a substantial number of younger Asian Americans (ages 18 to 30) do not actively participate in the political process.  Making matters worse, the 1913-vintage, signature-gathering system marginalizes many Asian Americans and other emerging communities.  Specifically, most signature gatherers collect signatures at mainstream venues, where voters of emerging communities are under-represented.

Fortunately, technology can play a critical role in helping signature-gatherers reach Asian American voters.  An eye-popping 90 percent of Asian Americans have access to the internet – and a large number of them regularly use touchscreen mobile devices.

The Solution:  If voters are permitted to sign petitions using touchscreen mobile devices, more Asian Americans will take part in the initiative-signing process for two reasons.  First, by gaining the ability to download the text of a petition, they could more easily decide whether they wish to sign and support it.  Furthermore, a growing number of younger Asian Americans prefer to sign documents using an electronic stylus, instead of the traditional ink pen.

By broadly reading Elections Code §100, the Court will give ample incentive for petition-gatherers to seek signatures from voters in every community – and thereby make it possible for emerging communities to play a meaningful role in the initiative process.

For these reasons, we respectfully ask the Court for permission to file this amicus letter.  Please feel free to contact me at 415.236.2048 if we may be of any further assistance.

Sincerely,

Gautam Dutta, Esq.
Executive Director
Asian American Action Fund


[1] 3B C.J.S. Amicus Curiae §3; see also State v. Medicine Bird Black Bear White Eagle (Tenn.Ct.App. 2001) 63 S.W.3d 734; 4 Am.Jur.2d Amicus Curiae §3.