A few weeks back, the California Supreme Court declined to hear an appeal about a core part of Proposition 14 (aka, the "Top Two" Primary). As a result, a state appeals court in San Francisco will soon hear legal arguments on two troubling flaws of what we affectionately call the Humpty-Dumpty Law: Senate Bill 6, which fleshes out crucial details of Prop 14. Here are the two questions the court will look at:
1. Can a law disenfranchise voters who mark their ballots for write-in candidates?
2. Can Tea Party and other minor-party candidates be forced to say that they have "No Party Preference"?
Both of these issues could play a prominent role in two looming elections in Southern California. On February 15, 2011, voters will be asked to decide who will succeed the late State Senator Jenny Oropeza (who was re-elected two weeks after she died) and former State Senator George Runner (who resigned after being elected to another office). If no candidate wins a majority, the top two votegetters (even if they are from the same party) will advance to a runoff election on April 19, 2011.
How did we get here? The Legislature passed Senate Bill 6 (SB 6) on February 19, 2009, between the "business" hours of 3:40 am and 6:55 am. Needless to say, state lawmakers held no debate or public hearings before putting SB 6 to a vote. One year later, Proposition 14 was approved by a narrow majority of voters. Why were voters never given the chance to also vote on SB 6, which fleshes out critical details of Prop 14's new election rules?
Do write-in candidates really matter? Look no further than Lisa Murkowski, who was just re-elected to the U.S. Senate from Alaska -- as a write-in candidate. SB 6 explicitly states that all write-in votes cast "at the general election ... shall not be counted." Thus, SB 6 would have robbed Senator Murkowski of her hard fought victory, because all votes cast for her would have been thrown away. Here in California, write-in candidate Donna Frye nearly won the San Diego mayoral election in 2004.
Why should we care about minor-party candidates? Think caffeine. Like it or not, the Tea Party has already made its mark on American politics. Until last year, Tea Party and other minor-party candidates were allowed to describe themselves on the ballot as "Independent". But once SB 6 kicks in, candidates from every minor (i.e., non-state-recognized) party will be foisted with the ballot label of "No Party Preference". By illegally forcing candidates to make misleading statements on the ballot, SB 6 will do voters a grave disservice.
How much will it cost taxpayers to implement SB 6? According to the California Association of Clerks and Election Officials, SB 6 will cost millions of taxpayer dollars at a time when teachers and police officers are being laid off. Does it make sense to waste precious tax dollars on an unconstitutional law?
Who filed this lawsuit? A broad coalition of civic leaders and political reformers brought this case to defend the fundamental rights of all Californians. We have not accepted funding from any political party.
What happens if this case succeeds? If we prevail, SB 6 will be struck down because it is unconstitutional. In turn, Proposition 14 - which would remain on the books - would be placed on hold until a new law is passed to replace SB 6.
Can the two flaws identified by this lawsuit be immediately fixed? Yes. Although SB 6 is sitting on a wall, its Humpty-Dumpty election rules do not have to fall. In fact, the Legislature could have fixed SB 6's defects last year - and it still has one last chance to do so before the courts decide SB 6's fate.