A group of voters and aspiring congressional candidates challenge the constitutionality of the open primary law, Proposition 14, approved by the voters in June 2010. Plaintiffs contest two aspects of Senate Bill No. 6, the legislation adopted to implement the proposition. (Sen. Bill No. 6 (2009-2010 Reg. Sess.); hereafter Senate Bill 6; see Legis. Counsel's Dig., Sen. Bill No. 6 (2009-2010 Reg. Sess.).) At issue are Elections Code section 13105, which precludes candidates from stating on the ballot a preference for a nonqualified political party, and Elections Code section 8606, which prohibits the counting of write-in votes at the general election for offices covered by Proposition 14.
At primary elections before approval of Proposition 14 (Legis. Counsel's Dig., Sen. Const. Amend. No. 4 (2009-2010 Reg. Sess.) pp. A-1 et seq.), voters affiliated with a qualified party, and, with permission of the party, voters who declined to state a party affiliation, would vote to select the party's nominee for the general election. The qualified party candidate with the highest vote advanced to the general election as the party's nominee. (See Cal. Const., art. II, former § 5, subd. (b) [amended by Prop. 14, § 3]; Elec. Code, former §§ 2151 [amended by Stats. 2009, ch. 1, § 9], 13102, subd. (b) [amended by Stats. 2009, ch. 1, § 45], 15451 [amended by Stats. 2009, ch. 1, § 57].) In addition to party nominees, the general election ballot included candidates who qualified through the process of independent nomination by petition. (See Libertarian Party, supra, 28 Cal.3d at pp. 541-542.) Separately, a person could run in the general election as a write-in candidate. (Id. at p. 541, fn. 7.)
Proposition 14 replaced party (partisan) primaries with one open primary for the following offices, referred to in the measure and legislation as "voter-nominated" offices: Governor, Lieutenant Governor, Secretary of State, Treasurer, Controller, Insurance Commissioner, Attorney General, state Senators, state Assembly members, state Board of Equalization members, United States Senators, and members of the United States House of Representatives. (Cal. Const., art. II, § 5, subd. (a); Elec. Code. § 359.5.) Candidates for the office are listed on a single primary ballot, voters may vote for any candidate without regard to the political party preference of the candidate or the voter, and the top two votegetters, regardless of party preference, advance to compete in the general election. (Cal. Const., art. II,
Proposition 14 became effective on January 1, 2011.
Plaintiffs filed suit in July 2010 against the Secretary of State (Secretary) and county election officials to have Senate Bill 6 declared unconstitutional and unenforceable, and Proposition 14 declared "inoperative" due to the unenforceability of Senate Bill 6.
Former Senator and Lieutenant Governor Abel Maldonado, the legislative sponsor of Proposition 14 and Senate Bill 6, the California Independent Voter Project, "an organization representing the interests of independent (`Decline-to-State') candidates," and Yes on 14—Californians for an Open Primary, the citizens committee that advocated for adoption of Proposition 14 (collectively, interveners), successfully intervened in the case.
Plaintiffs moved for a preliminary injunction against enforcement of Proposition 14 and Senate Bill 6. Arguments on the motion confirmed that plaintiffs were raising facial challenges to Senate Bill 6's constitutionality. The motion was denied, based primarily on plaintiffs' failure to show a likelihood of success on the merits.
An appeal from an order granting or denying a preliminary injunction "[o]rdinarily ... involves a very limited review of the trial court's exercise of discretion concerning two factors: (1) the likelihood that plaintiffs will ultimately prevail and (2) the interim harm plaintiffs will sustain if the preliminary injunction is denied compared to the interim harm defendant will suffer if the injunction is granted pending a final determination of the merits.
This case presents no reason to engage in an analysis of the parties' respective hardships. Because plaintiffs' likelihood of prevailing turns entirely on pure issues of law, we may independently review the trial court's determination of the legal issues and pass upon the merits of the case. (See Citizens to Save California v. California Fair Political Practices Com. (2006) 145 Cal.App.4th 736, 746 [52 Cal.Rptr.3d 17] ["where a case is clear and no fact questions are presented, a determination on the merits is appropriate and becomes law of the case"]; North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 805 [168 Cal.Rptr. 95] [where "[t]he issue of the validity of the challenged regulations is solely one of law ... this court is in as good a position to resolve the issue now as the trial court would be after determination of this appeal"]; see also King v. Meese (1987) 43 Cal.3d 1217, 1228 [240 Cal.Rptr. 829, 743 P.2d 889].)
Plaintiffs Mackler and Martin allege in the first amended complaint that their inability under Senate Bill 6 "to state a party preference on the ballot for a non-qualified party" violates their constitutional rights. In their briefing they contend that they have the right, "at a bare minimum," to identify themselves on the ballot as "Independent." They submit that Senate Bill 6's "[nonqualified] [p]arty [p]reference [b]an" violates the First and Fourteenth Amendments, the free speech clause of the California Constitution (Cal. Const., art. I, § 2, subd. (a)), the federal elections clause (U.S. Const., art. I, § 4, cl. 1), and the California equal protection clause (Cal. Const., art. I, § 7). It is unclear whether plaintiffs' Fourteenth Amendment claim refers to the rights to freedom of speech, freedom of association, and equal protection collectively or only some of them.
Plaintiffs first challenge section 13105, subdivision (a), which, as amended by Senate Bill 6, reads as follows: "In the case of candidates for a
Section 8002.5, subdivision (a), added by Senate Bill 6, provides: "A candidate for a voter-nominated office may indicate his or her party preference, or lack of party preference, as disclosed upon the candidate's most recent statement of registration, upon his or her declaration of candidacy. If a candidate indicates his or her party preference on his or her declaration of candidacy, it shall appear on the primary and general election ballot in conjunction with his or her name. The candidate's designated party preference on the ballot shall not be changed between the primary and general election. A candidate for voter-nominated office may also choose not to have the party preference disclosed upon the candidate's most recent affidavit of registration indicated upon the ballot." (Sen. Bill 6, § 17.)
However, "[s]tates may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." (Timmons v. Twin Cities Area New Party (1997) 520 U.S. 351, 358 [137 L.Ed.2d 589, 117 S.Ct. 1364] (Timmons).) The United States Constitution grants states "broad power to prescribe the `Times, Places and Manner of holding Elections for Senators and Representatives,' Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices." (Tashjian v. Republican Party of Connecticut, supra, 479 U.S. at p. 217 [quoting the federal elections clause].) "[S]tates have significant authority to regulate ... the identification of candidates on the ballot," and those contesting such regulations "bear[] a heavy constitutional burden." (Schrader, supra, 241 F.3d at pp. 790-791.)
The relevant considerations in the balancing analysis we must undertake here were applied over 30 years ago in the Libertarian Party case. There, two members of the Libertarian Party qualified for a general election ballot "pursuant to the `independent nomination procedure' [then] set forth in section 6800 et seq." by submitting nomination papers for the offices sought, signed by a sufficient number of voters in their districts. (Libertarian Party, supra, 28 Cal.3d at p. 538; see § 8300 et seq.) The Libertarian Party was not at the time a qualified political party in California. Former section 10210, the predecessor to section 13105 at issue here, provided that "`the qualified political party with which the candidate is affiliated'" would be printed on the ballot next to the name of a candidate, but that "`[i]f a candidate has qualified for the ballot by virtue of an independent nomination, the word "Independent" shall be printed instead of the name of a political party ....'" (28 Cal.3d at p. 539, fn. 3.) Following the statute's directive, the Secretary rejected the candidates' demands to be identified on the ballot as "Libertarian," rather than "Independent."
The Libertarian Party sued the Secretary and county election officials, citing its rights to equal protection and due process, and arguing that prohibiting its candidates from having their party identified on the ballot was "an unconstitutional impairment of the fundamental rights to associate for political activity and to vote." (Libertarian Party, supra, 28 Cal.3d at pp. 540, 542.) The court reversed a judgment directing that the candidates be designated as "Libertarian" on the ballot, holding that "the identification provision [of former section 10210] imposes an insubstantial burden on the rights to associate and to vote and that the statute serves a compelling state interest to protect the integrity and stability of the electoral process in California." (Id. at p. 542.)
In concluding that former section 10210 did not substantially burden constitutional rights, the court observed that the statute "denies access to the ballot to no one. It merely provides for a ballot designation, party affiliation." (Libertarian Party, supra, 28 Cal.3d at p. 543.) The court also observed that the Libertarian Party "is in no way restricted in its associational activities or in its publication of the affiliation of its candidates. It is only proscribed, so long as it remains unqualified, from designating the affiliation on the ballot." (Id. at p. 545.)
"[M]aintenance of the integrity of the distinction between qualified and nonqualified parties serves a compelling state interest and the restriction of party designation on the ballot set forth in section 10210 furthers that interest without substantially impairing the rights of political association and voting."
Given the importance of the state's interest in the integrity of the election process, section 10210 did not unlawfully discriminate against nonqualified political parties. "There is no question that the designation of party beside the name of the qualified party candidate gives information to voters which is not given as to candidates of the nonqualified parties. That distinction, however, is implicit in and essential to an electoral system that places minimum qualifications upon parties to achieve qualified status." (Libertarian Party, supra, 28 Cal.3d at p. 545.)
Allowing nonqualified parties to be listed on the ballot would cause "`deception, and even frustration of the democratic process'" in California. (Libertarian Party, supra, 28 Cal.3d at p. 546.) Until a political party becomes qualified, "it is not a party whose access to the ballot is secured under the provisions for nomination of qualified party candidates, and it would be misleading to designate the candidate of that political group as a political party candidate on the ballot." (Id. at p. 544.) "[I]f each independent
We discern no material distinction between the issues presented in Libertarian Party and this case. In Libertarian Party, as here, constitutional challenges were brought because candidates were unable to use their preferred political party designations on the ballot. Under former section 10210, candidates who wished to be associated with nonqualified political parties were identified on the ballot as "Independent"; under current section 13105 candidates who want to be associated with nonqualified political parties will be identified as having "No Party Preference." In each instance, the statutorily mandated labels are to the same degree both accurate and misleading. The candidates in Libertarian Party could be termed "Independent" because they had qualified for the ballot through the process of independent nomination. (Libertarian Party, supra, 28 Cal.3d at pp. 538, 544 [noting that fact, and thus in that sense "such candidates are independent of the qualified political parties"].) Similarly, the candidates here can be described as having "No Party Preference" because they have not identified themselves with any qualified political party. But the "Independent" label in Libertarian Party was misleading insofar as it implied that the candidates there were independent of any party, even though they were in fact members of the Libertarian Party. The "No Party Preference" label here is likewise misleading insofar as it implies that plaintiffs do not subscribe to any political party, even though they identify with parties that are nonqualified. Current section 13105 is in fact less coercive than former section 10210, because it does not, as plaintiffs claim, force them to state that they have "No Party Preference"; under section 13105, nonqualified party candidates can choose to leave the space for a party preference designation blank.
Accordingly, we conclude that Libertarian Party is controlling and dispositive of plaintiffs' constitutional arguments against the "nonqualified party preference ban" provided in Senate Bill 6.
Plaintiffs argue that Libertarian Party cannot be applied here because the case was based on a qualified party system that Proposition 14 and Senate Bill 6 "dismantled" by doing away with partisan primaries. This contention is persuasively refuted in interveners' appellate brief, which identifies many rights that continue to be reserved for qualified parties under the Proposition 14 and Senate Bill 6 open primary system. (Cal. Const., art. II, § 5, subd. (c); Elec. Code, §§ 6000-6953 [exclusive rights of qualified parties to nominate candidates for President of the U.S., participate in presidential primaries, and
Decisions after Libertarian Party have not called its reasoning into question other than to make clear that the strict scrutiny standard is not applied to review election laws like those here that do not substantially burden constitutional rights. (Timmons, supra, 520 U.S. at p. 358.) So, even though Libertarian Party applied a more stringent standard than necessary by identifying "compelling" state interests that justified a nonqualified party preference ban, the ban's survival of such heightened scrutiny in Libertarian Party only weakens plaintiffs' case. Apart from clarifying the applicable balancing test, subsequent cases support the Libertarian Party decision.
The most noteworthy decision, Timmons, supra, 520 U.S. 351, 354, involved a constitutional challenge to a Minnesota law that prohibited a candidate from appearing on the ballot as the candidate of more than one party. The Twin Cities Area New Party (New Party) chose as their candidate for state office an individual who was running unopposed for the office in another party's primary. (Ibid.) Because that individual had already filed as a candidate for the other party's nomination, election officials refused to accept the New Party's nominating petition. The New Party's arguments against the ban on multiparty, or "fusion," candidacies were essentially the same as those raised by plaintiffs here: "The New Party contends that the fusion ban burdens its `right ... to communicate its choice of nominees on the ballot on terms equal to those offered other parties, and the right of the party's supporters and other voters to receive that information,' and insists that communication on the ballot of a party's candidate choice is a `critical source of information for the great majority of voters ... who ... rely upon party "labels" as a voting guide.'" (Id. at p. 362.)
The court conceded that the Minnesota law "slightly" limited the New Party's "ability to send a message to the voters," but was "unpersuaded ... by the Party's contention that it has a right to use the ballot itself to send a
Timmons concluded that "the burdens Minnesota's fusion ban imposes on the New Party's associational rights are justified by `correspondingly weighty' valid state interests in ballot integrity and political stability." (Timmons, supra, 520 U.S. at pp. 369-370.) With respect to political stability, the court explained that "the States' interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system, ... and that temper the destabilizing effects of party-splintering and excessive factionalism. The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system. [Citations.] And while an interest in securing the perceived benefits of a stable two-party system will not justify unreasonably exclusionary restrictions [citation], States need not remove all of the many hurdles third parties face in the American political arena today." (Id. at p. 367, citation omitted.) This reasoning strongly supports the decision in Libertarian Party, which was based primarily on California's compelling interest in distinguishing between qualified and nonqualified parties. (Libertarian Party, supra, 28 Cal.3d at p. 544-546 [citing, among other things, California's interest in the stability of its political system].) California's restriction of party labels on the ballot is less constitutionally problematic than the one upheld in Timmons because it protects a system of multiple qualified parties, not merely the top two.
Subsequent federal circuit court cases are also in accord with Libertarian Party. Schrader, supra, 241 F.3d 783, like Libertarian Party, concerned a statute that precluded candidates of nonqualified parties from listing their party affiliations on the ballot. Schrader upheld the statute for the same reasons as those identified in Libertarian Party. (Schrader, supra, 241 F.3d at p. 791, quoting Timmons, supra, 520 U.S. at p. 359 [no severe burden on associational rights]; Schrader, at p. 788, quoting Jenness, supra, 403 U.S. at
Plaintiffs cite in support of their position several California cases that preceded the decision in Libertarian Party: Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal.Rptr. 697, 551 P.2d 1]; Gould v. Grubb (1975) 14 Cal.3d 661 [122 Cal.Rptr. 377, 536 P.2d 1337]; and Rees v. Layton (1970) 6 Cal.App.3d 815 [86 Cal.Rptr. 268]. Any light these cases may shed on the issue before us is eclipsed by Libertarian Party, which is directly on point. The cases are inapposite. (Stanson v. Mott, supra, 17 Cal.3d at pp. 209-210, 217 [public agency cannot expend public funds to promote a partisan position in an election campaign]; Gould v. Grubb, supra, 14 Cal.3d at p. 664 [incumbents cannot automatically be afforded a top position on the ballot]; Rees v. Layton, supra, 6 Cal.App.3d at p. 818 [incumbents cannot be the only candidates allowed to list their occupation on the ballot].)
Plaintiffs' federal elections clause claim is based on Cook v. Gralike (2001) 531 U.S. 510 [149 L.Ed.2d 44, 121 S.Ct. 1029] (Cook), which, in the Rubin court's words, involved a constitutional provision "stand[ing] in stark contrast" to statutes like Senate Bill 6. (Rubin, supra, 308 F.3d at pp. 1015-1016.) Article VIII of the Missouri Constitution instructed members of the state's congressional delegation to support term limits for members of the United States Congress. (Cook, supra, 531 U.S. at p. 514.) Missouri senators and representatives who failed to take one of eight specified legislative acts in support of term limits would have the words "`Disregarded Voters' Instruction on Term Limits'" printed in all capital letters adjacent to their names on primary and general election ballots. (Ibid., capitalization omitted.) Nonincumbent congressional candidates who did not pledge to take one of the enumerated legislative acts would be designated with the words "`Declined to Pledge to Support Term Limits'" in all capital letters. (Ibid., capitalization omitted.)
The ballot labels required under Proposition 14 and Senate Bill 6 are not comparable to those in Cook. The designation "No Party Preference" is not pejorative or issue slanted, and furthers the state's legitimate interest in maintaining its qualified party system. The designation raises no elections clause issue under the reasoning of Cook.
We turn finally to Rosen v. Brown (6th Cir. 1992) 970 F.2d 169 (Rosen), and Bachrach v. Secretary of Commonwealth (1981) 382 Mass. 268 [415 N.E.2d 832] (Bachrach), which plaintiffs argue stand for the proposition that they are constitutionally entitled to be listed on the ballot as "Independent," rather than as having "No Party Preference." As we have explained, we view the issue in the Libertarian Party case, where a candidate who wanted to identify himself as a "Libertarian" and objected to the "Independent" label, to be the same as the one here, where candidates wishing to identify themselves as members of the "Socialist Action" or "Reform" Parties object to being described as having "No Party Preference." If a nonqualified party candidate has no constitutional right to avoid the "Independent" label, then he or she has no such right to avoid the "No Party Preference" label. Nothing in Rosen or Bachrach persuades us otherwise.
Rosen concerned an Ohio statute that prevented candidates who qualified for the general election via a nominating petition from having any designation of party affiliation, or lack thereof, on the ballot. One such candidate requested to be identified on the ballot as "Independent," but the statute required that the space next to his name be left blank; in contrast, the ballot would show the party affiliations of candidates from recognized parties, i.e., Democrats and Republicans. The candidate presented evidence that having no label by his name on the ballot put him at a disadvantage against Democratic and Republican candidates. (Rosen, supra, 970 F.2d at pp. 172-173.) The
Based on the evidence, the court concluded that the statute "infringes upon the right of supporters of Independent candidates to meaningfully vote and meaningfully associate by providing a `voting cue' to Democratic and Republican candidates which makes it virtually impossible for Independent candidates to prevail in the general election." (Rosen, supra, 970 F.2d at p. 176.) The opinion further concluded that "the justifications advanced by the state for the burdens imposed on Independent candidates as a result of the statute [were] highly questionable" (id. at p. 178), and in fact "somewhat specious" (id. at p. 176). The statute appeared to the court to be "nothing more than a deliberate attempt by the State to protect and guarantee the success of the Democratic and Republican parties." (Ibid.) The statute thus unconstitutionally burdened "the First Amendment right of individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of political affiliation, to cast their votes effectively. Moreover, the statute violate[d] the Equal Protection Clause of the Fourteenth Amendment because it place[d] unequal burdens on Independent and third-party candidates and [was] designed to give Democrats and Republicans a decided advantage at the polls in a general election." (Id. at pp. 177-178.)
Rosen does not support plaintiffs' claim that they should be able to list their preferences for nonqualified parties on the ballot. The Sixth Circuit distinguished Rosen when it addressed that issue in Schrader. (Schrader, supra, 241 F.2d at pp. 788-789.) Rosen is also distinguishable insofar as it bears on the question of plaintiffs' alleged right to be called "Independent" on the ballot. Unlike the candidate in Rosen, plaintiffs have not presented, and state no intention to present, evidence to support their theory that "No Party Preference" is a more disadvantageous ballot designation than "Independent." On their face the labels are equivalent: someone who is independent of any political party has no party preference. "Independent" may be the more familiar shorthand term for no party affiliation, but it is not apparent that voters would take "No Party Preference" to mean anything other than "Independent," particularly under the new ballot scheme where, in lieu of the traditional party labels, candidates of qualified parties will be shown as having a "preference" for that party (e.g., "My party preference is the Democratic Party," rather than simply "Democrat"). (§ 13105, subd. (a).) In any event, whether the new label will make any practical difference in voters' minds is entirely speculative.
Bachrach dealt with Massachusetts laws that permitted candidates to use any nonsubversive, three-words-or-less political designation they wished on
The agreed facts were as follows: "Independent had no consistent or uniform meaning except a customary meaning as referring to persons who do not formally affiliate with any political party. Many voters assumed individuals designated Independent had generally liberal political or ideological beliefs, but many thought such individuals had generally conservative, generally moderate, or generally progressive beliefs. Independent had a generally positive connotation. `Citizens Party,' which was to appear as a designation of a candidate on the 1980 ballot, had no consistent or uniform meaning. The designations `Against Politician's Raise' and `The Anderson Coalition,' also to appear as designations on that ballot, did not connote associations with established organizations having structures or traditions of political beliefs. The terms Democratic and Republican did connote such associations." (Bachrach, supra, 415 N.E.2d at p. 834.) The court thought that "Unenrolled" was a less favorable designation than "Independent," a point the state may have effectively conceded. "Voters who during the campaign might have been favorably impressed with the candidate as an Independent would be confronted on the ballot with a candidate who was called Unenrolled. Unenrolled is hardly a rallying cry: the Commonwealth in its brief appears to grant the possibility that the word would have a negative connotation for voters." (Id. at p. 836.)
Bachrach, like Rosen, provides little support for plaintiffs' case. Unlike the laws in Bachrach that narrowly and without justification singled out Independents for disparate treatment, the statute challenged here distinguishes
Plaintiffs challenge section 8606, added by Senate Bill 6, which provides: "A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted." (Sen. Bill 6, § 35.)
Plaintiffs do not dispute that under Burdick, supra, 504 U.S. 428, and Edelstein, supra, 29 Cal.4th 164, the state may validly ban write-in voting in a general election. Burdick rejected a federal constitutional challenge to Hawaii's prohibition of write-in votes in all elections. (Burdick, supra, 504 U.S. at pp. 430, 441-442.) Edelstein applied Burdick and held that a prohibition against write-in voting in a San Francisco mayoral runoff election did not violate California's free speech clause. (Edelstein, supra, 29 Cal.4th at pp. 168-169, 177-183.)
However, plaintiffs maintain that Senate Bill 6 preserves the right to cast write-in votes in the general election for voter-nominated offices, even though section 8606 prohibits those votes from being counted. Based on the premise that the casting of write-in votes is permitted, plaintiffs contend that section 8606 violates California Constitution, article II, section 2.5, which states: "A voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted." Plaintiffs argue that section 8606 also violates the First Amendment and California's free speech clause; the federal elections clause; and the due process clauses of the federal and state Constitutions.
It would make no sense to authorize the voters to cast votes that cannot be counted, and we are not persuaded that Senate Bill 6 so provides. A ban on write-in votes in general elections for voter-nominated offices is implicit in section 8606, particularly when that statute is read together with section 8141.5 (added by Sen. Bill 6, § 27), which provides that "[o]nly the two candidates for a voter-nominated office who receive the highest and second-highest numbers of votes cast at the primary shall appear on the ballot as candidates for that office at the ensuing general election." (See also Cal. Const., art. II, § 5, subd. (a) [top two votegetters compete in the general election].) The Assembly Bill Analysis of Senate Bill 6 persuasively explained that the measure "[e]liminates the ability of voters to write-in candidates for a voter-nominated office at a general election, and eliminates the ability of candidates to run as write-in candidates for a voter-nominated office at a general election." (Sen. 3d reading analysis of Sen. Bill 6 as amended Feb. 19, 2009, p. 2 <http://www.leginfo.ca.gov/pub/09-10/bill/sen/ sb_0001-0050/sb_6_cfa_20090219_074318_asm_floor.html> [as of Sept. 19, 2011].)
Notably, plaintiffs' current reading of Senate Bill 6 is contrary to the arguments of the opponents of Proposition 14 in the June 2010 Voter Information Guide that clearly state write-in votes would be prohibited. The argument against Proposition 14 stated: "The general election will not allow write-in candidates. [¶] ... [¶] Currently, when a rogue candidate captures a nomination, voters have the ability to write-in the candidate of their choice in the general election. But a hidden provision PROHIBITS WRITE-IN VOTES from being counted in general elections if Prop. 14 passes. [¶] That means if one of the `top two' primary winners is convicted of a crime or discovered to be a member of an extremist group, voters are out of luck because Prop. 14 ends write-in voting." (Voter Information Guide, Primary Elec. (June 8, 2010) argument against Prop. 14, p. 19.) The rebuttal to the argument in favor of Proposition 14 (cosigned by plaintiff Chessin) stated: "Proposition 14 will decrease voter choice. It prohibits write-in candidates in general elections. Only the top two vote getters advance to the general election regardless of political party." (Id. rebuttal to argument in favor of Prop. 14, p. 18.)
Plaintiffs argue that certain Elections Code provisions authorize write-in voting at general elections for voter-nominated offices, notwithstanding sections 8141.5 and 8606. We disagree.
Plaintiffs also cite section 13207, subdivision (a)(2), which provides: "(a) There shall be printed on the ballot in parallel columns all of the following: [¶] ... [¶] (2) The names of candidates with sufficient blank spaces to allow the voters to write in names not printed on the ballot." (See also § 13212 ["Under the designation of each office shall be printed as many blank spaces, defined by light lines or rules at least three-eighths of an inch apart but no more than one-half inch apart, as there are candidates to be nominated or elected to the office."].) These statutes are among those in section 13200 et seq. providing general specifications for the format of all ballots. Because Senate Bill 6 amended parts of section 13207, but left subdivision (a)(2) unchanged (Sen. Bill 6, § 50), plaintiffs assert that "SB 6
The Secretary's appellate brief does not discuss these statutes, but the Secretary has evidently concluded, after the brief was filed, that the statutes require lines for write-in votes for voter-nominated offices on general election ballots. In a March 17, 2011 memorandum to county clerks and registrars of voters, the chief of the Secretary's election division "advise[d] that consistent with [Elections Code] sections 13207(a) and 13212, ballots must contain a blank space below the names of the qualified candidates. However, consistent with [Elections Code] section 8606, any name that is written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted."
The Secretary's position is also reflected in August 2010 e-mails from a legislative analyst for the Secretary to intervener Maldonado's legislative staff. The e-mails proposed "an SB 6 cleanup bill" consisting of "technical changes/clarifications" that would not "make any policy changes.... [¶] It's not intended to be controversial. It's simply intended to ensure that Proposition 14 and SB 6 can be implemented clearly and easily—and be implemented as the voters, the author, the Legislature, and the Governor intended when the measures were approved." Among the changes proposed was an amendment to section 13212, adding a sentence at the end so the section would read: "Under the designation of each office shall be printed as many blank spaces, defined by light lines or rules at least three-eighths of an
As for the amendment to section 13212, the e-mails explained: "The requirement that general election ballots contain spaces for write-ins should be deleted, since EC 8606 ... specifies that a name written on the ballot at a general election for a voter-nominated candidate shall not be counted." The e-mails elaborated, with respect to that amendment and the others pertaining to write-in voting: "Since [Senate Bill 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.... There's no reason you couldn't do it the other way, too, and eliminate the provision about not counting write-in votes. We have no preference, we just think in the long run, it should be consistent."
The interpretation of sections 13207, subdivision (a), and 13212 set forth in the Secretary's March 2011 memorandum to require spaces for write-in votes for voter-nominated offices on general election ballots is at odds with the interpretation reflected in the Secretary's August 2010 e-mails. In those e-mails, the Secretary proposed that section 13212 be clarified, consistent with the Secretary's view of legislative intent, to provide that spaces for write-in votes not be included for voter-nominated offices on general election ballots. The March 2011 interpretation contravenes that legislative intent and, as noted in the August 2010 e-mails, gives voters "the illusion" that write-in votes will be tabulated, or, as plaintiffs put it, "trick voters into throwing away their votes."
Including a line for write-in votes on a ballot when those votes will not be counted raises constitutional questions. "`[T]he right at stake'" when the constitutionality of a write-in voting ban is considered "`is the right to cast a meaningful vote for the candidate of one's choice.'" (Edelstein, supra, 29 Cal.4th at p. 181, italics added; see also id. at p. 186 (conc. opn. of Moreno, J.) [voters deprived of this right are "effectively disenfranchised" (original italics)]; Rawls v. Zamora (2003) 107 Cal.App.4th 1110, 1114 [132 Cal.Rptr.2d 675]
That the Secretary drafted "cleanup" legislation to amend statutes we have discussed does not affect our conclusions about how those statutes should be interpreted. The legislation was offered only to ensure that Proposition 14 would be implemented as intended, and the legislative intent reflected in the proposed amendments can be discerned without the changes the Secretary proposed.
Plaintiffs submit finally that write-in votes must be authorized at general elections for voter-nominated offices because, if they were not, section 8606's prohibition against counting them would be superfluous. However, candidates will presumably be written in on some ballots even when no lines for write-in votes are provided, and section 8606 can be taken to cover that situation.
We have determined as a matter of law that plaintiffs' arguments on the merits are untenable. Since plaintiffs have demonstrated no likelihood of prevailing, it is unnecessary for us to balance the hardships involved in granting or denying a preliminary injunction. (Hunter, supra, 209 Cal.App.3d at pp. 595-596.)
The order denying the motion for a preliminary injunction is affirmed.
McGuiness, P.J., and Jenkins, J., concurred.
The issues here and in Libertarian Party are those of ballot designations, not the more serious issue of ballot access addressed in Jenness, but the analysis of the Jenness court applies in both situations.
