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CA Independent Voter Project challenges California legislature to remove ballot access barriers for Decline to State candidates

by Greg Lucas, published

The Legislature should quickly make it easier for candidates who don’t state a party preference to run for state office, advocates of Proposition 14, the so-called “Top-Two” open primary proposal on the June ballot, told reporters May 26.

Three members of the board of the California Independent Voter Project, which helped draft the proposition and create the California Independent Voter Network (CAIVN), said a variety of factors hobble independent candidates from qualifying for the ballot, including vastly higher signature collection requirements and a short time frame to gather them.

“We urge the Legislature to take action immediately to end the gross inequities of California’s election system,” said Linda Mitrovich, a board member of the independent voter project.  Mitrovich and Jeff Marston, a former GOP Assemblyman from San Diego and an independent voter project board member, said at a Capitol press conference that an analysis of California’s election laws by Latham & Watkins concluded that the state ballot access laws are potentially unconstitutional.

If the Legislature doesn’t change the election laws by their summer recess, which begins July 2, Mitrovich and Marston said a lawsuit could be brought challenging the requirements imposed on potential decline-to-state candidates.

While Democratic and Republican registration has fallen over the past two decades, voters who decline to state a party preference have increased from 9 percent of registered voters in 1990 to just over 20 percent registered voters in 2010 – some 3.4 million Californians.

But Mitrovich, Marston and Assemblyman Juan Arambula, a former Democrat from Fresno turned independent, said Democrats and Republicans have “stacked the deck against independent candidates.”  Decline-to-state candidates are precluded from running in the primary forcing them to play “catch-up” against partisan candidates who have a head start in fundraising, endorsements and name identification.

A Democratic or Republican candidate for governor must collect between 65 and 100 signatures to qualify to run. A decline-to-state gubernatorial candidate must submit signatures equal to 1 percent of the number of state voters at the time registration closed prior to the last general election.  In 2010, that’s 173,041 valid signatures.

And, Marston noted, a candidate would need to collect roughly 20 percent more signatures – more than 34,600 – to ensure there is a sufficient number of valid signatures.  Decline-to-state candidates also lack lists of party registration which partisan candidates utilize to help them identify and solicit voters.

For a decline-to-state candidate for statewide office, the 173,041 signatures must be collected during a 60-day period running from the day before the primary election – June 7 this year – to August 6. To do so, a decline-to-state candidate for statewide office would need to collect nearly 2,900 signatures each day. From a practical standpoint, the candidate would need to hire a signature-gathering firm to attempt such a task, Marston said.  Democrats or Republicans running for statewide office have from February 15 through March 12 to collect their 65 to 100 signatures.

In its legal memorandum to the independent voter project, Latham & Watkins conclude that Proposition 14 would end the disparity between qualification standards for partisan and decline-to-state candidates.  “If approved by voters, Proposition 14 would amend the California Elections Code to extend the same nomination criteria to all candidates irrespective of party, drastically reducing the existing barriers that keep independent candidates off the ballot,” the law firm’s legal analysis says.  “The new system would place all candidates on equal footing, able to access the same ballot in an open primary election with the top two vote getters advancing to the November general election.”

Minor parties, such as Green and American Independent, oppose Proposition 14 saying that rather than placing them on an equal footing, their far smaller registration numbers shut them out of any chance of reaching the November run-off.

CAIVP says that if Proposition 14 is approved, it won’t take effect until January 1, 2011 so decline-to-state candidates for November 2010 would still be hobbled.  Marston and Mitrovich said that’s why they were calling on the legislature for quick action and might seek a preliminary injunction from the courts if none occurs.

While Gov. Arnold Schwarzenegger had no immediate comment on the voter project’s call for changing ballot access for decline-to-state candidates, he supports Proposition 14 and has contributed $2 million to the “yes” campaign.  Both the California Democratic and Republican parties oppose the measure saying it would allow candidates to mask their political affiliation, cheating voters of a general yardstick as to the views a candidate espouses, and make campaigns more expensive by forcing candidates to reach out to a larger number of voters in both the primary and the fall election.

Electronic attempts seeking comment from legislative leaders were not immediately responded to on May 26.  However, given the two parties’ opposition to Proposition 14 and the state’s $19.1 billion budget shortfall, it is unlikely Democrats and Republicans will change the ballot access rules by the voter project’s stated deadline.

Colleen Smith, a lawyer for Latham & Watkins, said if a lawsuit were filed, it would challenge the state’s ballot qualification for violating the U. S. Constitution’s First and Fourteenth Amendments by, in part, forcing decline-to-state voters to join a private organization – a political party – in order to more easily run for state or legislative office.

Arambula quoted his daughter at the Capitol press conference as saying California is like a box of crayons.  “We should use all the colors in the crayon box, not just red and blue,” he said.

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