Former Leaders of New Alliance Party Have Become Leading Opponents of Ballot Access Reform

Government-printed ballots in the United States were first created in 1888, and almost from the start, opponents of new and minor political parties started manipulating the ballot access laws to keep certain parties off the ballot.  The first such instance was in Nevada, when the 1893 legislature increased the petition requirement for new parties and independent candidates to 10% of the last vote cast, in a vain attempt to keep the Peoples (Populist) Party off the ballot.

But in over a century of struggle to avoid monopolization of the general election ballot to just the two major parties, there has never been a pressure group that worked in favor of restrictive ballot access laws, until very recently.  Leaders of the former New Alliance Party, who have renamed themselves several times, now call themselves IndependentVoting.org.  They hold themselves out as the leaders of independent voters, but they have become a pressure group working to limit choices on the general election ballot to just Democrats and Republicans.

IndependentVoting fund-raising pitches say that the organization’s goal is to enable independent voters to vote in major party primaries.  However, the bulk of IndependentVoting’s activity during 2010 has been to advance the goal of switching California to the top-two system.  This is ironic, because California had already been a state (ever since 2001) in which independent voters were already able to vote in all major party primaries for Congress and state office.

Compared to Republican and Democratic voters, independent voters are the most supportive voters for minor party candidates.  For example, see this poll taken in the North Carolina U.S. Senate race in 2010, which shows that Libertarian Party nominee Michael Beitler received the support of 12% of independent voters, whereas he received the votes of only 3% of the major party voters.  Other polls that give this much detail, from other states in 2010, showed similar results; see this example from California.  Thus, when a new election system appears that removes minor party candidates from the general election ballot, that new system disproportionately injures independent voters more than it injures any other voters.

The California top-two proposal does more harm than just removing minor party candidates from the general election ballot.  It says write-ins can’t be counted in November for Congress and state office; it makes it far more difficult for a minor party to remain on the ballot for President; it discriminates against independent candidates by not letting themselves use the label “independent” on any ballot; and it vastly increases the number of signatures to get on the primary ballot for minor party candidates who don’t pay the filing fee.  Notwithstanding all these harms done to voting rights, IndependentVoting enthusiastically supports the top-two law in California, and expresses open hostility toward minor parties.  For example, see this cartoon, carried on a blog associated with IndependentVoting.

IndependentVoting communications have been dishonest.  IndependentVoting has repeatedly asserted that independents were not permitted to vote in major party primaries in California before the adoption of the top-two system.  IndependentVoting has also recently inaccurately claimed that the California Supreme Court upheld Proposition 14, when the truth is that the court merely declined to expedite the case.  IndependentVoting also fosters confusion, by constantly referring to the California top-two system as an “open primary”.

Members of the New Alliance Party were once defenders of voter choice in the general election.  The New Alliance Party won ballot access lawsuits in Alabama, California, Florida, Massachusetts, Michigan, North Carolina, Texas, and Washington.  Activists from the New Alliance Party wrote the first bill in Congress to outlaw restrictive ballot access laws, introduced by Congressman John Conyers in 1985.  They worked hard for that bill, which was re-introduced in 1987 and 1989.  In 1990, the Rainbow Lobby, associated with the New Alliance Party, managed to get 40 co-sponsors for the bill, although it did not pass.  The New Alliance Party also filed many lawsuits against the Commission on Presidential Debates, trying to end the Democratic-Republican monopoly on presidential debates.  These cases did not win, but they came closer to winning than any other lawsuits on this subject, and one of the New Alliance debates lawsuits won a procedural victory on standing to file such lawsuits.

Minor parties are hoping to persuade the U.S. Supreme Court to hear cases against the Georgia and Hawaii ballot access laws, and are also hoping to persuade the U.S. Supreme Court to hear the case against Connecticut’s discriminatory law on public funding of candidates, which requires independent candidates to submit a petition of 20% of the last vote cast (in addition to raising the same number of small campaign contributions that major party candidates must raise).  IndependentVoting has shown no interest in supporting these efforts, and judging from the cartoon, supports the Connecticut discrimination against independent candidates in the matter of public funding.

68 comments

  1. Harry Kresky · · Reply

    The Kelleher Winger exchange (comments 40 and 41)says it all. When Kelleher correctly points out that there are no ballot access downsides to Prop. 14, Winger reverts to his overall objections to the top two system, and they have nothing to do with ballot access. They have to do, as Kelleher notes, with the fact that, under top two, party candidates, major and minor, do not have a preferred position over the rest of us.

    My recent piece on Huffington Post speaks, as does Kelleher, to the opportunities top two presents for all non-major party, pro-democracy forces. See: http://www.huffingtonpost.com/harry-kresky/californias-top-two-prima_b_799662.html

  2. Jim Riley · · Reply

    #50 You have lost sight of why the election is being held. It is to decide who represents the entire electorate in the government.

  3. Richard Winger · · Reply

    Thanks for chiming in, Harry. What you and Mr. Kelleher have in common is that neither of you appear to have studied how top-two works in the real world. You and I have talked about this on the phone. I said that Louisiana has 35 years of experience with a top-two system, and no minor party member ever placed first or second in Louisiana in all those thousands of elections, unless there was only one major party person running.

    If the proponents of top-two were really interested in empirical research, the way Jim Riley is, they would do it. Instead their devotion to the top-two system is not based on facts, or the way the world really works. It is like a religion to them.

  4. Jim Riley · · Reply

    #53 Louisiana has a larger share of its legislature elected as independents than all but one other state that has a partisan legislature.

  5. Hi Richard! RE #41

    Out of respect for your knowledge, I won’t dispute what you say about the experiences in other states, such as LA and WA. But I will say this: the only thing that can prevent CA activists from realizing the possibilities given them by Prop 14 is their own concepts and attitudes. If all the activists read this blog and say “Oh shit! Look what we have lost. Nothing can be done,” then guess what? Nothing will be done.

    In your third paragraph you seem to set up this argument: because 3d party candidates now have to pay a [nominal ($950)] filing fee, participation in elections is “far more difficult;” indeed, primaries for them have been “shut down.”

    My message to activists is very different from yours. In my view, Prop 14 has delivered us to Libertarian Heaven.

    From my POV, understanding the gift of Prop 14 requires a re-conceptualization of the old idea of “party.” Putting presidential elections and state wide elections aside, most CA elections are for state Senate and Assembly. Therefore, for these elections, the idea of “party” should be the party-in-the-district (P/D), and not the party-in-the-state (P/S). Every P/D can have its own candidate, because ballot access is open to all. Activists in each district can evaluate what is possible for them. They can do the traditional political activities of organizing and selecting their candidate in their district. There are many tactical possibilities for combining forces and beating major party candidates. The competition is open to all. These activities can be free of control by the central P/S organization; but that does not make the activities “whimsical.”

    The party-in-the-state can still exist for such things as fundraising and defining their ideal agenda. The P/S can allocate resources and volunteers to districts with winning potential. They can abandon districts with little or no potential.

    Its true, P/S has lost some of the old privileges of being “qualified.” But while privileges have been lost, tactical possibilities have been gained. In every battle, victory has costs. But to win a war you must quickly bury your dead, and prepare for the next fight. Regrets and recriminations only waste time and energy.

    RE party labels
    I have a little something to add concerning party labels to what Kresky says in his current HP post (see #51).

    Prop 14 Second, sec. (c) states, in part, “At the time they register, all voters shall have the freedom to choose whether or not to disclose their party preference.”

    Question: If the old legal status of “qualified party” is abolished for the purpose of ballot access by individuals, then isn’t it also abolished for the purpose of voter registration? Section (c) says the voters can declare “their party preference.” It doesn’t use the old distinction between “qualified party” and “no preference,” or “decline to state.” It leaves it up the registering person to say whatever they want – “THEIR party preference.”

    Section (c) goes on to say, “Existing voter registrations, which specify a political party affiliation, shall be deemed to have disclosed that party as the voter’s political party preference unless a new affidavit of registration is filed.” The clause after “unless” seems to me to be saying that you can re-register and put down any party label you want, whether it’s a “qualified party” or not.

    If I am correct, then folks can register to vote as “Socialist,” or “Lovers of Fabio,” or anything else. So what if its six guys in the “card party.” What business is that of the state? Registering to vote is an essential act of political expression.

    Looks to me like Prop 14 already recognizes this 1st Amend freedom to state any party label. These party labels can be used when candidates sign up for the ballot, and the state will have to print them. So, what Richard said (in #41) is true only if you don’t re-register.

    Thanks for the opportunity to make these points! Gotta go, more later,

    Bill K

  6. Demo Rep · · Reply

    Reality Check for non-brain dead folks —-

    ANTI-Democracy indirect minority rule gerrymander regimes in ALL 99 houses of ALL 50 State legislatures in the U.S.A. — with or without top 2 primaries, open primaries, closed primaries, etc.

    The 2011 computerized gerrymander programs are being tested as this blog operates — like testing the barbed wire for the Stalin and Hitler death camps.

    P.R. and App.V.

  7. #52, elections have many important functions. Election campaigns are how the people “talk to each other” about what government policy should be. There is no substitute for a vigorous election campaign.

    If the only function of elections was to decide who should hold office, we would cancel 80% of all elections for Congress and state legislature, because no matter what election system is used, it is a matter of course that the same people get re-elected 80% of the time, if they are running for re-election. That is why the term limits movement was so popular.

  8. Richard Winger · · Reply

    #55, the California Attorney General, Secretary of State, and Association of California county elections officials, are in total agreement that members of unqualified parties cannot have their party label on the ballot.

    Jim Riley reads the law differently than they do, but it doesn’t really matter how he reads it, because it is the state and county elections officials who are administering it. Also, the state and county officials are in agreement that no one will ever again be able to be listed on the ballot as an independent candidate. Jim Riley will probably chime in and say that it doesn’t make sense for anyone in the top-two system to be described as an independent. But the State Supreme Courts of Massachusetts and Minnesota have both ruled that “independent” is such a politically meaningful word, it would be unconstitutional to ban use of that label on the ballot.

  9. Jim Riley · · Reply

    #57 Is there any evidence that election campaigns are less vigorous in Louisiana than in California?

  10. Harry Kresky · · Reply

    jimrtex posted the following comment on Huffington this evening:

    Louisiana has a larger share of its legislatur­e elected as independen­ts than all but one of the 48 other states that have partisan elections. Last year, the House speaker pro tem was an independen­t, reflecting that independen­ts held the balance of power.

  11. Louisiana’s version of top-two is far kinder than the California and Washington version. In Louisiana, the first election is an actual election. People are elected in the first round most of the time. So, people take the first round very seriously, and candidate debates are held prior to the first round. Another good thing about Louisiana’s version is that for Congress, the first round is in November, so the natural (autumn) campaign season matches the remainder of the U.S.

    But Louisiana is worth talking about, because of the data it gives us. Similarly, the data from blanket primaries is relevant to talking about top-two, even though blanket primaries are far kinder than top-two, and do not limit choices in November.

  12. Demo Rep · · Reply

    # 57 Used to be about 97 percent safe seat gerrymander elections — with automatic party hack winners.

    NOT so safe for many party hack robot incumbents after the 2006-2008-2010 *wave* elections.

    See the very large crop of new/old Elephants in the gerrymander Congress and all 50 State legislatures — replacing the large crops of new/old Donkeys added after the 2006-2008 gerrymander elections.

    i.e. U.S.A. *politics* is now totally ready to explode — think 1775 and 1859 — the top party hack gerrymander monsters do NOT like each other.

    New gerrymander Congress 5 Jan 2011 — with now standard type tyrant comments by the party hack mouthpieces.

  13. Jim Riley · · Reply

    #58 The Secretary of State in their answer brief in Field v Bowen said that the law stands for itself, and that they deny every interpretation by the plaintiffs that is contrary to the law.

    Let’s go through the complaint point by point.

    #40,#41. It is true that Elections Code 338 defines “party” as being a “qualified party”. But Section 338 is subject to Elections Code 4 which says that definitions such as 338 do not apply if the context demands otherwise.

    In the context of voter registration, it makes absolutely no sense to limit “party” to mean qualified party. If a voter could not register with a non-qualified party, it would be impossible for a non-qualified party, to become a qualified party – except by the petition method, which might as well be considered impossible. It would make no sense for the Secretary of State to maintain statistics as to the numbers of voters registered with (1) each qualified party; (2) each non-qualified party attempting to qualify; (3) the aggregate of voters registered with other non-qualified parties; and (4) those not affiliated with any party (No Party Preference; Declined To State, prior to 2011).

    The plaintiffs would have you believe that categories (2) and (3) no longer exist.

    SB 6 also provided that existing registrations be recast. This is also the expressed legislative intent of the People of California in enacting Proposition 14. Richard Winger has acknowledged that for the last 98 years that some registrations in California were with non-qualified parties. Were these registrations purged on January 1st? Or are the plaintiffs making the bizarre claim that existing registrations with non-qualified parties remain valid, but that new ones are banned?

    In addition SB 6 added Section 300.5 which defines a voter and candidate’s party preference as that disclosed on a voter’s registration.

    Where the plaintiffs make their mistake is reading “party preference” as “preference for (Section 338) party”.

    #42 SB 6 simply recast Section 2151(a) to say that a voter may disclose their party preference, from the previous language that a voter may declare their intent to affiliate with a party at the subsequent primary. Richard Winger will acknowledge that a voter could declare their intent to affiliate with a non-qualified party.

    #43 Prior to SB 6, Section 2151(b) required the listing of all qualified parties on the registration form. This is not a change from previous law. It is absolutely bizarre that the plaintiffs would think this somehow implied a change in policy. SB 6 did add the requirement of a No Party Preference box on the registration form. However, it was the practice prior to SB 6 to have a Declined To State box on the registration form, so this is simplify a codification of existing process.

    No doubt this relates to the perceived problem of some voters accidentally registering with the American Independent Party.

    Section 2151 also changed the language describing the restrictions and limitations on the right to vote of voters not registered with qualified parties.

    #44 SB 6 simply changed the presumption when a voter fails to check a box or write the name of party, that he has “No Party Preference” as opposed to not having a party affiliation.

    #45 misrepresents what Section 8002.5 actually does say. Dutta’s careless use of “any” implies that a candidate’s party preference is arbitrary, when in fact 8002.5 makes clear that a candidate’s party preference (or lack thereof) is the same as on the voter’s registration.

    8002.5(a) makes presentation of a candidate’s party preference on the ballot voluntary. California Election Code does not require a candidate to disclose his occupation, profession, or office to the voters. It is similar with a candidate’s party preference (or lack thereof). California can not compel speech. I’m sure Richard Winger knows this, but perhaps his lawyer does not.

    #46 8002.5(c) would be better construed as a “candidate’s party preference does not imply endorsement by the party”. The use of “need” suggests that the plaintiffs are still clinging to the old paradigm, where parties run candidates, almost like one would run cattle.

    #47 Is totally in error. 8002.5(a) requires a candidate to use the party preference (or lack thereof) on his voter registration, or to use nothing at all.

    8002.5(a) does not “ban” use of the party preference on the voter registration it “requires” that it be used, if anything is used.

    This is the same idea behind the designation on the ballot. One can’t claim to be a “Medical Doctor” unless one can actually demonstrate that they are. A candidate may not claim to have a different party preference than that which they have disclosed on their voter registration. The Secretary of State’s website will also have the 10-year history of party affiliation of each candidate. This is simply to ensure some level of reliability in the candidate’s expression of party preference.

    Can their be anything more absurd than the claim in the last sentence of #47, “[t]hus, all candidates whose voter registration state a preference for a non-qualified political party will be banned from stating their desired party preference on their desired party preference on their declarations of candidacy”?

    The plaintiffs’ lawyer makes the remarkable claim that voters may have a preference for a non-qualified party on their voter registration, and yet as a candidate may not. Yet Section 300.5 says that they are the same, and the whole point of 8002.5(a) is to ensure that they are consistent.

    #48 SB 6 requires a candidate to use the same party preference (or lack thereof) on his voter registration, or to use nothing at all. This is the opposite of a “ban”.

    #49 All candidates are required to use their party preference (or lack thereof) from their voter registration, or have nothing. It is erroneous to suggest that only some are “permitted” to do so.

    #50 No candidate may designate that they have no party preference, unless that is consistent with their voter registration. The election of having a blank space is not the same as having no party preference.

    #51 It is correct that a candidate may not change their ballot designation between the primary and the general election. The intent is that this information about a candidate is reliable and correct.

    #52 In summary, the plaintiffs claim is erroneous.

    #58 An injunction against implementation of SB 6 would not permit Jeff Mackler to run as preferring Socialist Action. Moreover, it would require him to collect a bazillion signatures merely to get on the ballot.

    #59 An injunction against implementation of SB 6 would not permit Rodney Martin to run as preferring the Reform Party. Moreover, it would require him to collect a bazillion signatures merely to get on the ballot.

  14. Jim Riley · · Reply

    #61 There is no reason that California could not move the primary to September. It was in August prior to WWII when it was moved to June in order to be held in conjunction with the presidential primary. The presidential primary has since departed to early February.

    Or if California would do like Louisiana they could hold the primary in October – Louisiana sends contingent ballots to overseas voters. When they regressed to using partisan primaries for Congress, this became really messy because they had to consider all the contingent possibilities based on which races had two or more candidates running for a party nomination, there would be a congressional primary. And if there were three or more candidates running for a party nomination there would be the possibility of a 2nd congressional primary. And then if there were any independents or candidates from more than one party, there was a general election. So there were really elaborate charts so the correct ballots would be sent. Now the same contingent ballots can be sent to all voters.

    It would certainly be better for local non-partisan offices to have the election and possible runoff in close proximity.

    At the same time, party officer elections should be moved to be coincident with the presidential primary, where voters are still segregated on the basis of party affiliation. This would remove the adulteration of all party-specific ballots from the primary.

  15. Demo Rep · · Reply

    How many sections of the CA Election Code facially violate the amended CA Constitution and/or the U.S.A. Constitution and valid U.S.A. laws ???

    How long will it take the CA legislature gerrymander monsters to fix the CA Election Code to end the chaos — or will it take some hammers from the courts on the regime ???

  16. Jim Riley · · Reply

    SB 6 added Elections Code Section 2151(d) which provides for the conversion of existing voter registrations (this conversion took place on January 1, 2011).

    It provides that a voter who had stated a party affiliation would be deemed to have disclosed a preference for the same party, unless the voter subsequently filed a new affidavit specifying a different party preference or no party preference.

    And it provided that Declined To State (DTS) voters would be deemed to have Disclosed No Party Preference (DNPP), unless the voter subsequently filed a new affidavit specifying a party preference.

    The legal presumption must be that the legislature provided for the conversion of all existing registrations and that it had divided those registrations into two classes:

    (1) Affiliated with a party;
    (2) Declined To State.

    California election law makes a clear distinction between Declined To State voters and all other voters, thus all voters who were not Declined To State voters on December 31, 2010; as of January 1, 2011 have disclosed a political party preference, whether that preference is for a qualified party, or some other party. The only way for them to have No Party Preference is for them to file a new affidavit.

    The only voters who have disclosed No Party Preference are those who were Declined To State on December 31, or who have filed a new affidavit since January 1.

  17. #64 “if California would do like Louisiana they could hold the primary in October…” The MOVE Act requires primaries to be held no later than mid-Sept: ballots for overseas voters must be mailed out 45 days before the Nov election.

  18. Jim Riley · · Reply

    The MOVE act requires balloting materials to be available X days before the general election. Louisiana in effect sends out their general election ballot at the same time as they send the primary ballot.

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