Background
In July of 2019, the Independent Voter Project (IVP) and 6 individual plaintiffs sued the California Secretary of State, arguing that the state is violating the California constitution by failing to conduct an open primary for Presidential elections. The complaint alleges 6 distinct violations of state and federal voting rights laws.

For more than 5 years, the Independent Voter Project has warned the California legislature that, due to its confusing and unconstitutional presidential primary, millions of voters are confused and disenfranchised.

In 2016, the consequences of the California legislature's inaction was widely reported.

In 2020, if nothing changes, California is heading for a presidential primary disaster.

IVP filed a lawsuit, Boydsten v. Padilla, on July 23, 2019, to protect California voters and avoid another disaster.

Summary

In 2016, 4.7 million NPP (No Party Preference) voters and half a million voters improperly registered as AIP were denied the right to vote in a Presidential primary that was the subject of widespread confusion and criticism.

The Independent Voter Project (IVP), author of California's nonpartisan, top-two statewide primary, first raised this issue in 2015 when it shared a simple solution with Secretary of State Alex Padilla and several state legislators. Despite support from California registrars, numerous state and national reform organizations, and multiple legal options, neither acted before the 2016 Presidential primary.

In 2019, IVP was joined by the National Association of Nonpartisan Reformers -- representing more than 30 voter rights organizations -- in sponsoring legislation to require a public presidential ballot for NPP voters who choose not to join a political party or select a partisan ballot.

That legislation was derailed by the National Democratic Party, according to the bill’s author.

IVP attorney Chad Peace said:

“We are disappointed with our friends in Sacramento. But we understand the pressure from both national political parties. This is a straightforward voting rights case. The Democrats erect a barrier to ballot access by insisting that NPPs request a separate Democratic ballot. The Republicans simply deny NPP voters access to their ballot altogether. The political parties are legally entitled to do this. The State, however, is legally obligated to provide access to the ballot box for every California voter, regardless of their political party choice.”

On July 23, 2019, IVP and 6 plaintiffs sued the California Secretary of State, alleging 6 distinct violations of state and federal voting rights laws, including a state constitutional requirement that California conduct an open presidential primary.

In addition to the legal action, IVP has collected more than 10,000 signatures from registered California voters supporting a “public ballot” option that would allow the state’s 5.6 million NPP voters to vote for any presidential candidate, regardless of party affiliation.


Find out more about the coalition and join us here!

The Facts

1. California’s Presidential Primaries Are Complex and Confusing for Many Voters

2. Nearly 30% of the California Electorate is Registered No Party Preference

  • In 2016, No Party Preference voter registration going into the June 7 primary (report dated May 26) was over 4.1 million. (Source: California Secretary of State)
  • In 2016, NPP voters comprised over 23% of the registered voting population. (Source: California Secretary of State)
  • Current NPP voter registration (report dated February 10, 2019) is over 5.6 million. (Source: California Secretary of State)
  • Today, NPP voters currently make up over 28% of the registered voting population. (Source: California Secretary of State)
  • The DMV reported in September 2018 that more than 23,000 voters were registered to vote incorrectly under the agency’s motor voter registration system between late April 2018 and early August 2018. (Source: LA Times)

3. Nearly 75% of American Independent Party Voters Are Registered With a Third Party by Mistake

  • The California American Independent Party (AIP) is a third party founded in 1967. It supported the1968 presidential run of segregationist George Wallace. (Source: American Independent Party)
  • For several years now, AIP has been the third largest political party in California. (Source: California Secretary of State)
  • In 2016, the LA Times reported that nearly 75% of registered AIP voters affiliate no party preference. (Source: LA Times)
  • California’s modified closed presidential primary rules mean members registered with any political party cannot vote in another party’s presidential primary, so people registered American Independent can only vote for American Independent candidates. (Source: California Secretary of State)
  • Going into the 2016 presidential primary, over 450,000 voters were registered with the American Independent Party. (Source: California Secretary of State)
  • Current American Independent registration (report dated February 10, 2019) is over 500,000 voters. (Source: California Secretary of State)

4. Independent Candidates Are Denied Access to CA’s Presidential Primary 

  • No Party Preference (NPP) candidates cannot access the California presidential primary ballot. (Source: Ballotpedia)
  • To gain access to the general election, an NPP candidate has to collect 1% of the total number of registered voters in the state at the time of the close of registration prior to the preceding general election. (178,039 valid signatures for 2016 election). (Source: National Association of Secretaries of State)

5. Parties Can Pick Their Own Presidential Nominee, Regardless of Primary Results or State Law

  • The California Republican Party Bylaws state: “With respect to matters of party governance and, to the extent provided for herein, the selection of nominees and Presidential electors, these bylaws shall govern and take precedence over the California Elections Code or other law to the contrary. The Committee retains the right and prerogative of association to recognize and determine for itself the ways and means of nominating persons as nominees for partisan elective offices.” (Source: Section 1.04(A) “Precedence Over Elections Code,” Republican Party of California’s By-Laws) 
  • The California Democratic Party Bylaws state: “The members of the California Delegation to the Democratic National Committee shall be elected by the Executive Board of This Committee.” (Source: Article IX, Section 1, Democratic Party of California’s By-Laws)
  • The Democratic National Committee Bylaws state: “The Democratic Party shall not require a delegate to a Party convention or caucus to cast a vote contrary to his or her expressed preference.” (Source: Article IX, Section 10, Democratic Party of California’s By-Laws)

6. Courts Have Affirmed The Party’s Right to Conduct Their Primaries How They Want

  • In 1979, the Supreme Court held in Democratic Party of U.S. v. Wisconsin ex rel. La Follette that the state could not bind the Wisconsin Democratic delegation to the results of an open primary. (Source: Ballotpedia)
  • In 1988, the Supreme Court overturned a California ban on party endorsements of primary candidates in Eu v. San Francisco County Democratic Cent. Comm. (Source: Eu v. San Francisco County Democratic Cent. Comm, 1988). 
  • In 2017, the Democratic National Committee (DNC) argued in court: "The party has the freedom of association to decide how it's gonna select its representatives to the convention and to the state party." (Source: “DNC Lawyers Argue DNC Has Right to Pick Candidates in Back Rooms,” The Observer)
  • The class action lawsuit initially filed in 2016 against the DNC over allegations that it violated its own rules of neutrality in primary elections was dismissed in August 2017. 

7. All Voters Have A Right to Vote in All Integral Stages of the Taxpayer-Funded Elections Process

  • The Supreme Court recognized in the 1963 case Gray v. Sanders, when it first articulated the “one person, one vote” standard regularly cited from its decision in Reynolds v. Sims, that the right to applies to all integral stages of the election process. (Source: Gray v. Sanders, 1963
  • In 2000, the Supreme Court recognized in California Democratic Party v. Jones that the right to not associate is a necessary corollary of the right to associate. (Source: California Democratic Party v. Jones, 2000)

8. The California Constitution Requires An Open Presidential Primary

  • Section 5, Article 2 of the CA Constitution calls for an open primary:  “...the Legislature shall provide for… an open presidential primary.” Source: California State Constitution, California Legislative Information)
  • In an “open presidential primary,” all qualified voters, regardless of party preference have a right to participate by casting a vote for the candidate of their choice. (Source: Ballotpedia)
  • In 1972, California voters approved through ballot initiative an open presidential primary to “free the voters of California to choose their own candidate for President of the United States,” and “take the decision out of the smoke filled rooms.” 
  • On March 26, 1996, California voters passed Proposition 198 during the primary election with 59.1% of the vote. Proposition 198 changed the closed primary system to what is known as a “blanket” or “open” primary, in which all registered voters may vote for any candidate, regardless of political affiliation and without a declaration of political faith or allegiance. (“HIstory Behind California’s Primary Election System,” El Dorado County)
  • On June 26, 2000, the United States Supreme Court issued a decision in California Democratic Party, et. al, v. Jones, stating that California’s “open” blanket system, established by Proposition 198, was unconstitutional because it violated a political party’s First Amendment right of association. Therefore, the Supreme Court overturned Proposition 198. (Source: California Democratic Party v. Jones, 2000)
  • Instead of finding another way to implement an open primary, the California legislature reverted back to a “semi-closed” primary. (Source: California Secretary of State)
  • Senate Bill 28 (Ch. 898, Stats. 2000) relating to primary elections took effect January 1, 2001. SB 28 implemented a “modified” closed primary system that permitted voters not affiliated with a political party (“decline to state” or “nonpartisan”) to participate in a primary election if authorized by the political party’s rules and duly noticed by the Secretary of State. (Source: California Legislative Information)
  • The California Secretary of State’s office states that California now uses the modified closed primary system -- also known as a semi-closed primary: “Qualified political parties in California may hold presidential primaries in one of two ways:
  • Closed presidential primary - only voters indicating a preference for a party may vote for that party's presidential nominee.
  • Modified-closed presidential primary - the party also allows voters who did not state a party preference to vote for that party's presidential nominee.” (Source: California Secretary of State)

9. Independent Voter Project’s Legislative History

  • In 2013, Independent Voter Project Co-Chairs Steve Peace and Jeff Marston filed an initiative to make the presidential primary nonpartisan. (Source: Independent Voter Project, Office of the Attorney General)
  • IVP authored and led the education effort to pass California’s nonpartisan, top-two open primary for statewide, legislative, US House, and US Senate elections in 2010. (Source: IVP About Page)
  • In 2014, IVP Co-Chairs Steve Peace and Jeff Marston withdrew their presidential primary initiative. They penned a letter to the Secretary of State, requesting a response to the following questions concerning the 2012 presidential election:
  • 1. Did the Secretary of State properly and Constitutionally conduct California’s 2012 presidential primary election?
  • 2. If the answer to the first question is “Yes," how does the Secretary of State explain the apparent conflict between the Constitutional language, the statutory implementation, and the actual administration of the 2012 presidential primary election?
  • 3. If the answer to the first question is “No.” (A) Why was a semi-closed primary conducted instead of an ‘open presidential primary’? And, (B) Will the Secretary of State conduct a presidential primary in 2016 that comports with California’s Constitutional requirements? (Source: Independent Voter News)
  • IVP never received a response from the Secretary of State’s office. 
  • In 2015, IVP began discussions with the California Secretary of State to make sure the increasing number of NPP voters had a full right to participate in the 2016 presidential primary. 
  • IVP was unable to get the Secretary of State to act.
  • In 2016, the Independent Voter Project sponsored a resolution in the California Assembly calling on the Secretary of State to add the public ballot option to the 2016 presidential primary. It failed to get out of committee in a 2-2 bipartisan split vote. (Source: ACR 145, California Legislature)
  • In 2019, IVP once again attempted to introduce legislation for the public ballot option. The legislative council drafted a bill authored by Assemlymember Arambula, but it was not introduced into committee. (Source: IVP's undrafted bill)
  • On June 14, 2019, IVP Chair Dan Howle sent a certified letter to the California Secretary of State requesting clarification if Secretary of State Alex Padilla would conduct an open presidential primary for independent candidates and voters. (Source: Independent Voter Project)
  • The SOS has not responded to the request.

10. Other Notable Facts

  • Secretary of State Alex Padilla: “If there’s one thing that every American should agree with, it’s this: Voting is the fundamental right in our democracy, the one that makes all others possible.” ("Guest editorial: When voting rights go right," by Alex Padilla, La Mesa Courier)

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