The Jury Talks Back

7/30/2010

Prop 14 lawsuit filed

Filed under: California Politics — aphrael @ 12:18 pm

The first lawsuit against Proposition 14 was filed yesterday.

The claims are:

(1) Prop 14 violates Article 2, Section 2.5 of the California Constitution by denying people the right to have votes cast for eligible write-in candidates be counted.

(2) Prop 14 violates Article 1, Section 2(a) of the California Constitution (the free speech clause) by denying people the right to have votes cast for write-in candidates be counted.

(3) Prop 14 violates the 1st amendment and 42 USC 1983 by denying people the right to have votes cast for write-in candidates be counted.

(4) Prop 14 violates the Elections Clause by denying people the right to have votes cast for write-in candidates be counted.

(5) Prop 14 violates due federal process by denying people the right to have votes cast for write-in candidates be counted.

(6) Prop 14 violates state due process by denying people the right to have votes cast for write-in candidates be counted.

(7) Prop 14 violates state equal protection by not allowing candidates to state a preference for a minor party which isn’t ballot qualified.

(8) Prop 14 violates the elections clause and 42 USC 1983 by not allowing candidates to state a preference for a minor party which isn’t ballot qualified.

———–

(1) is just wrong , as the clause only requires that votes cast in accordance with state law be counted (“A voter who casts a vote in an election in accordance with the laws of this State shall have that vote counted”).

(2) and (3) are bizarre, and the complaint doesn’t explain the theory under which this denies free speech.

(4) and (8) are inconsistent with my understanding of the elections clause (which would in any event only apply to federal offices) and would represent a gigantic change in federal elections law which would force many states to change their laws (effectively *requiring* write-ins and declaration of preference for unrecognized parties, everywhere, even though they often aren’t allowed now in many places).

(5), (6), and (7) are novel but I suspect unlikely to go very far.

4 Comments »

  1. Re 1, 2 and 6, isn’t Prop 14 itself a constitutional amendment? If so, how can anyone argue with a straight face that the Constitution is unconstitutional?! I know, the same way the anti-Prop 8 people did, but still…

    Comment by Xrlq — 8/1/2010 @ 5:31 pm

  2. No, it wasn’t a constitutional amendment, it was an amendment to the state election code.

    Comment by aphrael — 8/3/2010 @ 8:38 am

  3. Never mind; it was actually a constitutional amendment.

    Bizarre.

    They haven’t filed their points + authorities yet; I’ll be interested to see what the argument is when they do.

    Comment by aphrael — 8/3/2010 @ 8:39 am

  4. None of this is stranger than Scalia’s opinion some time back that the State could ban all third parties and outright establish a two-party system. Which Prop 14 pretty much does.

    I think that Prop 14 is assailable on some grounds, and poor law on others, but these aren’t the guys who will beat it.

    Comment by Kevin Murphy — 8/5/2010 @ 5:18 am

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