Our Brief shows that California’s Top Two Primary Law violated the rights of Californians in two troubling ways.  First, it unconstitutionally violated the rights of minor-party candidates, by forcing them to falsely state on the ballot that they have “No Party Preference”.  Second, the Top Two Primary law disenfranchised all voters who cast write-in votes in the general election.

Secretary of State Debra Bowen, who is being represented by Attorney General Kamala Harris, will file her opposition papers on March 1, 2012.  We will then file our Reply Brief on March 15, 2012.

The U.S. Court of Appeals (Ninth Circuit) has not yet indicated when it will hear this case.

– Gautam Dutta

Over the winter holidays, Pivotal moved the case from state court to federal court.  Last week, we asked a federal judge to send the case back to state court.  Click here to read our court papers.

Update (Feb. 11, 2012):  Last week, the briefing process concluded when we filed our Reply Brief, which you can read here.  A federal judge in San Jose is scheduled to hear this matter on March 16, 2012, 9 am.

Charles Richardson and David Steinman, who respectively belong to the Libertarian and Green Parties, will run for Congress in the 2012 statewide election.  Randi Clausen and Andrew Arnold, who respectively belong to the Green and Libertarian Parties, intend to vote for them in the 2012 statewide election.

Steinman, Richardson, Arnold, and Clausen seek to immediately join the Top Two Primary lawsuit, because it could restore their right to participate in their respective party’s primary.

Previously, California elected its federal and state leaders through a party-primary system.  During the June primary election, parties like the Libertarian and Green Parties had the constitutional right to nominate candidates for the November general election.

On January 1, 2011, Proposition 14 and Senate Bill 6 eliminated California’s party-primary system.  Under the new Top Two Primary system, all federal and state candidates would square off against one another in the June 5, 2012 primary election.  The top two votegetters, regardless of party, would then advance to the November 6, 2012 general election.

If the Court rules that Proposition 14 is unenforceable, California’s former party-primary system will likely be restored.  That is, parties like the Green Party and the Libertarian Party will regain the right to nominate candidates for the 2012 general election.

Click here for a copy of the Motion to Intervene filed by Richardson, Steinman, Clausen and Arnold.  The U.S. Court of Appeals for the Ninth Circuit is expected to rule on this matter shortly.

Last week, we filed a lawsuit against Pivotal Payments in connection with this matter.

Update (Dec. 26, 2011):  Last week, Pivotal Payments moved our case from state court to federal court.  Click here to read our response to Pivotal Payments’ lawyers.

Last spring, Placer County resident Linda Hall cast a write-in vote that was not counted.  In that special election for Assembly District 4, the names of two candidates appeared on the ballot, along with a slot for write-in candidates.

Ms. Hall cast a write-in vote for Dennis Campanale, whose name also appeared on the ballot.  However, her vote was not counted.

Under the Help America Vote Act of 2002 (HAVA), California adopted a special rule for write-in voting.  If a voter writes in the name of a candidate whose name already appears on the ballot, her vote must be counted (see p.3 of 8, Item 8 here).

However, under the Top Two Primary’s rules, all write-in votes that are cast in a general election must be thrown away:  “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.”

To vindicate her fundamental right to vote, Ms. Hall filed court papers on Nov. 2, 2011.  The California Superior Court is expected to rule on this matter on Dec. 2, 2011, 9:30 am, 400 McAllister St., Department 302, San Francisco, CA  94102.

In papers filed yesterday, Plaintiffs Michael Chamness, Daniel Frederick, and Rich Wilson asked the U.S. Court of Appeals for the Ninth Circuit to hear their historic case on Nov. 18, 2011.

Currently, the Top Two Primary is scheduled to kick in for the 2012 statewide election beginning Dec. 30, 2011, the first date on which California candidates may take out papers to run for federal and state office.

To date, the Top Two Primary law has disenfranchised voters in two consecutive special elections:  in Congressional District 36 and Assembly District 4.  Specifically, the law allows voters to cast write-in votes in the general election, but then bans those votes from being counted.

In a related development, 2012 Tea Party candidate Julius Galacki asked the Ninth Circuit to allow him to join Plaintiffs’ lawsuit.  On top of disenfranchising voters, the Top Two Primary law illegally censors minor-party candidates, by forcing them to falsely state on the ballot that they have “No Party Preference”.  To challenge this injustice, Mr. Galacki has switched his party registration from the Democratic Party to the Tea Party.

The Ninth Circuit is expected to rule on Plaintiffs’ hearing request next month.

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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A Yale, Georgetown and SEC-trained lawyer, Mr. Dutta will share his insights on how businesses can reduce legal costs, build goodwill, and improve their bottom line.  Come join us!  Learn more about Mr. Dutta at BusinessandElectionLaw.com.

Mr. Dutta will be speaking at the Fremont Chamber of Commerce, 39488 Stevenson Place # 100 (just west of the corner of Stevenson Blvd. and Mission Blvd.), Fremont, CA  94539.

Please call 415.236.2048 or email Dutta@BusinessandElectionLaw.com with any questions.   See you on the 18th!

About GAUTAM DUTTA, Attorney-at-Law

A Yale and Georgetown-educated lawyer, Gautam Dutta specializes in corporate, securities, regulatory/public entity, election, and voting rights law.

Mr. Dutta was an enforcement attorney for the U.S. Securities and Exchange Commission (SEC) in Washington, DC for several years.  After clerking at a federal district court in DC, Mr. Dutta worked as a commercial litigator at the Los Angeles firm of Buchalter Nemer.  He has also served as tax counsel at the California Board of Equalization.

Between 2007 and 2010, Mr. Dutta was Deputy Director of the Political Reform Program at the New America Foundation. That program educated opinion leaders and the public about electoral alternatives (including Instant Runoff Voting and Proportional Representation).  In this capacity, Mr. Dutta worked closely with the Los Angeles, Long Beach, and Pasadena City Councils.  Last spring, Mr. Dutta wrote an amicus brief in federal court that successfully defended San Francisco’s innovative Instant Runoff Voting (IRV) system.  Furthermore, he drafted and spearheaded legislative strategy for IRV bills in both the California Senate and Assembly.

Throughout his career, Mr. Dutta has played a prominent role in civic affairs.  Mayor Antonio Villaraigosa appointed him to the position of commissioner on the Los Angeles Industrial Development Authority, which he served in from 2006 to 2007.  Between 2005 and 2010, Mr. Dutta served on the Board of the American Civil Liberties Union (Southern California), where he was elected to the Executive Board.  Mr. Dutta currently serves as Executive Director of Asian American Action Fund, a national political organization.

A prolific writer and political commentator, Mr. Dutta has been featured and quoted in top media outlets, including the San Francisco Chronicle, Sacramento Bee, San Jose Mercury News, Boston Globe, Associated Press, Los Angeles Daily News, Orange County Register, Huffington Post, Politico, and AAA-Fund Blog (of which he is Publisher).

In Washington, D.C., Mr. Dutta was President of the Asian Pacific American Bar Association Educational Fund, as well as Vice Chair of the District of Columbia’s Commission on Asian and Pacific Islander Affairs.

Mr. Dutta received his undergraduate degree in economics and German literature from Yale University and his law degree from Georgetown University.  He was Editor-in-Chief of the Yale Political Monthly, and is fluent in Spanish, German, Hindi, and Bengali. Mr. Dutta is a member of the State Bar of California, the South Asian Bar Association, and the Asian Pacific American Bar Association.

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.