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Michael Chamness, Daniel Frederick, and Rich Wilson v. Debra Bowen

August 23, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, IIUNITED States District Judge

Order DENYING Plaintiffs' Motion for Summary Judgment [94] [Filed 05/06/11] and GRANTING Summary Judgment in Favor of Defendants and Intervenor-Defendants


Pending before the Court is Plaintiffs, Michael Chamness ("Chamness"), Daniel Frederick ("Frederick"), and Rich Wilson's ("Wilson") (collectively, "Plaintiffs"), May 6, 2011 Motion for Summary Judgment. (Dkt. No. 94.) Defendant, Debra Bowen ("Bowen"),*fn1 and Intervenor-Defendants, California Independent Voter Project ("CAIVP"), Abel Maldonado ("Maldonado"), and Californians to Defend the Open Primary ("CADOP") (collectively, "Intervenor-Defendants"), filed their respective Oppositions on May 23, 2011, (Dkt. Nos. 114, 115), to which Plaintiffs filed a Reply on May 30, 2011, (Dkt. No. 116). After careful consideration of the parties' presentations at oral argument along with the briefing and evidence submitted in support of and in opposition to the instant Motion, for the reasons discussed below, Plaintiffs' Motion is DENIED and the Court GRANTS summary judgment in favor of Defendants and Intervenor-Defendants.


This lawsuit challenges the constitutionality of certain provisions of California Senate Bill 6 ("SB6"), the legislation implementing California's Proposition 14. The Court had the occasion to recount the legislative history concerning both SB6 and Proposition 14 in its March 30, 2011 Order. For context, however, the Court reiterates the relevant background information here.

On February 19, 2009, SB6, which contained numerous revisions to the California Elections Code, was introduced and passed by the California Legislature. (SUF No. 21.) Subsequently, on June 8, 2010, Proposition 14 was passed by California voters. (SUF Nos. 21, 23.) Prior to the passage of Proposition 14, California's primary and general election scheme was as follows:

California generally holds two statewide elections in even-numbered years to elect candidates to state and federal offices -- a primary election (in June) and a general election (in November). These elections . . . are partisan, which means that most candidates are associated with a political party. For these partisan offices, the results of a primary election determine each party's nominee for the office. The candidate receiving the most votes in a primary election is that party's nominee for the general election. In the general election, voters choose among all of the parties' nominees, as well as any independent candidates. (Independent candidates -- those not associated with a party -- do not participate in primary elections.) The winner of the general election then serves a term in that office.

(Dutta Decl., Exh. Q.) Proposition 14, which applies to elections held after January 1, 2011, however, amended the California Constitution to change the election process for most state and federal offices. (See DSUF No. 51; Dutta Decl., Exh. Q.) In essence, Proposition 14 effectively replaced traditional California party primary elections with a type of "open primary" known as a "top two" or "voter-nominated" primary election. In doing so, Proposition 14 made it possible for any candidate to run in a primary election, regardless of whether that candidate is affiliated with a California "qualified party."*fn2 Proposition 14's "top two" system was described in the June 8, 2010 Official Voter Information Guide as follows:

This measure creates a single ballot for primary elections for [certain] congressional and state elective offices . . . . Candidates would indicate for the ballot either their political party (the party chosen on their voter registration) or no party preference. All candidates would be listed-including independent candidates, who now would appear on the primary ballot. Each voter would cast his or her vote using this single primary ballot. . . . The two candidates with the highest number of votes in the primary election-regardless of their party preference-would advance to compete in the general election. In fact, the two candidates in the general election could have the same party preference.

(SUF No. 22; Dutta Decl., Exh. Q.)

When a candidate runs under the Proposition 14 scheme, he may state his "political party preference, or lack of political party preference . . . in a manner provided by statute." Cal. Const. art. II, § 5(b). The relevant statute, California Elections Code § 8002.5(a), which was added by SB6, provides that "[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 . . . ." The manner in which the candidate's preference appears on the ballot is set forth in California Elections Code section 13105(a), which was amended by SB6, and provides:

In the case of candidates for a voter-nominated office in a primary election, a general election, or a special election to fill a vacancy in the office of United States Senator, Member of the United States House of Representatives, State Senator, or Member of the Assembly, immediately to the right of and on the same line as the name of the candidate, or immediately below the name if there is not sufficient space to the right of the name, there shall be identified in eight-point roman lowercase type the name of the political party designated by the candidate pursuant to Section 8002.5. The identification shall be in substantially the following form: "My party preference is the _______ Party." If the candidate designates no political party, the phrase "No Party Preference" shall be printed instead of the party preference identification. If the candidate chooses not to have his or her party preference listed on the ballot, the space that would be filled with a party preference designation shall be left blank.

Cal. Elec. Code § 13105(a). In her capacity as the Secretary of State, Bowen interprets the phrase "political party" in the first portion of this section to mean only a "qualified party." She has further concluded that candidates who prefer a "non-qualified" party may not state the term "Independent" on the ballot. Rather, as evidenced by the ballots from the February 15, 2011 Senate District 28 Election (the "SD 28 Election") and the May 17, 2011 Congressional District 36 Election (the "CD 36 Election"), candidates who prefer "non-qualified parties" must state that they have "No Party Preference" or must leave the space blank. (SUF. Nos. 3, 42; Dutta Decl., Exhs. E, G.)

Additionally, when a candidate runs for a voter-nominated office under the Proposition 14 scheme, he may run as a write-in candidate only in a primary election. California Elections Code section 8605 provides:

No person whose name has been written in upon a ballot for an office at the direct primary may have his or her name placed upon the ballot as a candidate for that office for the ensuing general election unless one of the following is applicable: . . .

(c) At that direct primary he or she received . . . the highest number of votes cast for that office or the second highest number of votes cast for that office . . . .

Cal. Elec. Code § 8605. Because only the two candidates with the highest number of votes in the primary election advance to compete in the general election, "[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." Cal. Elec. Code § 8606. Bowen interprets these statutes to ban all write-in candidates ...

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