A former member of Congress and two national reform groups have filed letters with the California Supreme Court supporting the Independent Voter Project’s (IVP) lawsuit that challenges the state’s cumbersome and confusing semi-closed presidential primary rules.
Former US Rep. Tom Campbell, Open Primaries, and FairVote have asked the state's high court to give IVP -- and the individual plaintiffs signed onto the lawsuit -- a chance to lay out the evidence that the system unfairly burdens the voting rights of independent voters.
Campbell, who is also a law professor and interim chairman of the Common Sense Party of California, cites the extra steps No Party Preference (NPP) voters must take to participate in presidential primaries.
California allows parties to decide who is allowed to vote in these primaries, but NPP voters are not allowed to use the same ballot as party members in instances where the party allows their participation – like in the case of the Democratic Party.
“The Democratic Party of California allows such individuals to participate in their Presidential primary election,” writes Campbell.
“However, the State of California has imposed a condition on those independent voters that the Democratic Party did not impose. The State insists that such independent voters request and obtain a separate ballot, whereas members of the Democratic Party are mailed Presidential primary ballots directly by the California Secretary of State without any action on their part.”
The Democratic, Libertarian, and American Independent Parties are the only parties that currently allow NPP participation in presidential primaries.
NPP voters must request a “crossover ballot.” They have to know that specific terminology and be aware of the deadline to request the ballot before each primary. Or, they will receive a NPP ballot with no presidential candidates listed.
This, on its own, demonstrates what Campbell calls “a barrier to participation in an election that must be justified by the State.”
Open Primaries President John Opdycke notes that the issue is exacerbated by “well-documented practices at polling sites that have directed independent voters away from their constitutional rights to a Democratic Party ballot and towards nonpartisan or provisional ballots.”
To reiterate, the nonpartisan ballot does not list any presidential candidates because independent candidates do not participate in presidential primaries. And, poll workers are barred by the state from advising voters on their options or giving them recommendations.
Voters can and have been denied a vote in presidential primaries simply because they didn't know the right terminology to use when requesting a ballot from a poll worker.
In 2016, it was not uncommon for petition gatherers at Democratic campaign events to tell NPP voters that they might as well change their registration to “Democrat” so that they wouldn’t be encumbered by the different voting experiences they would otherwise encounter.
The parties are aware of the disparities in how the system treats party members versus NPP voters. In their lawsuit, the plaintiffs ask the court to recognize that NPP voters should be treated equally.
But as FairVote CEO Rob Richie points out in his letter to the California Supreme Court:
“The Court of Appeals justifies this burden by holding NPP voters’ ballots are ‘purely symbolic.’ It held, ‘(t)he State's strong interest in maintaining public confidence in the integrity of the election system outweighs any interest of NPP voters to cast purely symbolic votes for the candidate of a political party they have chosen not to join.’”
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There is nothing in state election law that requires the parties to honor the results of a presidential primary, and the parties have asserted this right before the public and the courts. Therefore, all votes in a presidential primary are “symbolic.”
“In that sense, both affiliated and NPP voters are on equal footing. Their votes may be considered symbolic,” writes Richie. “Yet, NPP voters are treated differently and burdened in a way that affiliated voters are not. They must request a ballot from the state while other voters do not.”
IVP has offered a simple remedy for presidential primaries that would protect both the interests of the parties and the voting rights of NPP voters:
“Instead of giving No Party Preference voters a blank ballot for president, simply list all the candidates on their ballot,” said IVP Chairman Dan Howle.
“The state would tally and publish the no party preference results and let the parties decide whether or not to consider them in the selection of their nominees. Give voters a chance to express their preference.”
Campbell, Opdycke, and Richie urge the California Supreme Court to grant the plaintiffs’ petition for review and give them a forum to present their evidence that millions of Californians are being treated by the state like second-class voters.
