Opinion
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.
Our review of relevant case law leads us to conclude both statutes are constitutional. The objection to the party labeling restriction on the ballot is essentially the same as the one rejected in Libertarian Party v. Eu (1980)
A. Proposition 14 and Qualified Parties
As defined in the Elections Code,
At primary elections before approval of Proposition 14 (Legis. Counsel’s Dig., Sen. Const. Amend. No. 4 (2009-2010 Reg. Sess.) p. A-l 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); 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.
B. The Litigation
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.
n. DISCUSSION
A. Scope of Review
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)
B. Party Designations on the Ballot
(1) Plaintiffs’ Arguments and the Applicable Statutes
Plaintiffs Madder 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 [preference [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 to 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.)
Plaintiffs and the Secretary believe, and we agree, that the term “party” in sections 13105, subdivision (a), and 8002.5 refers to an organization that is a qualified political party as described in section 338. (See § 4 [Elec. Code definitions govern construction of the code “[u]nless the provision or the context otherwise requires”].) Therefore, a candidate’s party preference will not be shown on the ballot unless the candidate prefers a qualified party. Candidates like plaintiffs Mackler and Martin who indicate a preference for nonqualified parties like “Socialist Action” or “Reform” will be deemed to not have designated a party preference on their declarations of candidacy (§ 8002.5), and will be identified on the ballot as having “No Party Preference,” unless they choose to leave the space for a party preference designation blank. (§ 13105, subd. (a).)
Interveners invite us to avoid the constitutional issues plaintiffs raise by construing the term “party” in sections 13105, subdivision (a), and 8002.5
(2) Constitutional Rights and Balancing
Restricting the party label a candidate can use on an election ballot implicates the candidate’s constitutional rights to freedom of speech, freedom of association, and equal protection. (See Libertarian Party, supra, 28 Cal.3d at pp. 540, 542 [party claimed that its candidates’ inability to identify themselves on the ballot as party members violated rights to associate and
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)
Federal constitutional' challenges to election laws are resolved with a balancing test. “[W]e weigh the ‘ “character and magnitude” ’ of the burden the State’s rule imposes on [constitutional] rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary. [Citation.] Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s ‘ “important regulatory interests” ’ will usually be enough to justify ‘ “reasonable, nondiscriminatory restrictions.” ’ ” (Timmons, supra,
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,
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,
“[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,
Allowing nonqualified parties to be listed on the ballot would cause “ ‘deception, and even frustration of the democratic process’ ” in California. (Libertarian Party, supra,
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
(4) Subsequent Cases Support Libertarian Party’s Holding
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,
The most noteworthy decision, Timmons, supra,
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 pp. 544-546 [citing, among other things, Cal.’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,
(5) Plaintiffs’ Case Authorities Are Distinguishable
Plaintiffs cite in support of their position several California cases that preceded the decision in Libertarian Party: Stanson v. Mott (1976)
Plaintiffs’ federal elections clause claim is based on Cook v. Gralike (2001)
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)
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,
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,
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
C. Prohibition on Counting Write-in Votes
(1) Plaintiffs’ Premise
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,
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 n, 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 “[eliminates 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. [][]... [f] 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.)
Accordingly, we conclude that Senate Bill 6 precludes the casting of write-in votes at general elections for voter-nominated offices, just as it prohibits the counting of those votes. This conclusion disposes of plaintiffs’ argument that section 8606 violates California Constitution, article II, section 2.5, because that section requires that votes be counted only if they are cast “in accordance with the laws of this state.” This conclusion resolves plaintiffs’ other constitutional arguments against section 8606 because votes that
(3) Plaintiffs’ Statutory Arguments
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.
“In construing a statute, the court’s fundamental task is to ascertain and effectuate the intent of the Legislature.” (Johnson v. Arvin-Edison Water Storage Dist. (2009)
Plaintiffs rely primarily on section 15340, which was not amended by Senate Bill 6, and which provides: “Each voter is entitled to write the name of any candidate for any public office, including that of President and Vice President of the United States, on the ballot of any election.” But it is clear from the decision in Edelstein that section 15340 does not mandate allowance of write-in voting in general elections for voter-nominated offices. The plaintiffs in Edelstein argued that section 15340 guaranteed voters the right to cast write-in votes in a municipal runoff election. The court rejected that argument and explained that voters in the election “had the opportunity to write in the names of candidates once, in the first round of voting; they
Plaintiffs’ reliance on section 15342 is also misplaced. Section 15342 states that “[a]ny name written upon a ballot for a qualified write-in candidate, including a reasonable facsimile of the spelling of a name, shall be counted for the office, if it is written in the blank space provided and voted as specified [in subdivisions of the section].” This provision is of no assistance to plaintiffs because it is limited by its terms to votes cast for “qualified” write-in candidates. Section 15341 states that “[notwithstanding any other provision of law, no name written upon a ballot in any election shall be counted for an office or nomination unless the candidate whose name has been written on the ballot has complied with Part 3 (commencing with Section 8600) of Division 8.” Section 8600 et seq. set forth requirements for qualifying as a write-in candidate, and now include section 8606’s ban on the counting of write-in votes at general elections for voter-nominated offices. We agree with the Secretary and interveners that, in view of that ban, no write-in candidate can be “qualified” for those elections. Like the prohibition against casting write-in votes at such elections, a prohibition against qualifying as a write-in candidate in such elections is implicit in sections 8606 and 8141.5.
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: [f] . . . [][] (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 itself requires that every ballot provide space where voters can write in the names of candidates.”
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,
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.
D. Conclusion
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.
Notes
Subsequent statutory references are to the Elections Code unless otherwise specified.
The local election officials have taken no positions on the issues.
Plaintiffs argue that interveners should be judicially estopped from arguing both that section 13105 does not prohibit nonqualified party designations on the ballot, and that section 13105 would be constitutional even if it requires that nonqualified party candidates be shown as having “No Party Preference.” The judicial estoppel doctrine does not apply. Interveners’ arguments are not “ ‘clearly inconsistent so that one necessarily excludes the other.’ ” (Jackson v. County of Los Angeles (1997)
Jenness upheld a Georgia law requiring that candidates who were not affiliated with established parties (those polling over 20 percent of the vote) qualify for the general election ballot by a nominating petition signed by 5 percent of the electorate. The court rejected arguments by registered voters and prospective candidates in the state that the 5 percent requirement “abridge[d] the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments,” and “violate[d] the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws.” (Jenness, supra,
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.
We hereby grant plaintiffs’ request to take judicial notice of this document. (Evid. Code, § 452, subd. (c) [official state governmental acts]; Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999)