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Peace and Freedom's Succesful Fight to Keep our Ballot Status

The Attack

On Monday evening, January 30, 2006, the California Peace and Freedom Party's state chairperson Kevin Akin received a phone message from the Secretary of State's office claiming that the party had been removed from the ballot. When Kevin called the Secretary of State's office the next morning to get confirmation and an explanation, he was told that Secretary of State Bruce McPherson would issue a press release later that day saying we are no longer qualified party because we hadn't kept our registration above the one percent of total votes in the previous gubernatorial election (77,389) that we surpassed to regain our ballot status in 2003. The press release stated:

"Based upon the 154-day registration totals, the Peace and Freedom Party dropped below the required percentage of registered voters and is no longer a qualified party. That leaves six qualified parties eligible to nominate candidates in the upcoming primary."
...
"For a political party to maintain its qualified status and participate in the June 6, 2006 Gubernatorial Primary Election, a party must have 77,389 registered voters, which is one percent of the total votes cast for governor in the 2002 general election or, alternatively, have had one candidate receive two percent of the total votes cast in the 2002 General Election and maintain one fifteenth of one percent of the votes cast. The Peace and Freedom Party was not qualified and did not field candidates in the 2002 election."
As a result of that press release newspapers throughout the state printed stories saying that the Peace and Freedom Party had lost its ballot status, and many of these stories failed to give any explanation of how McPherson had misinterpreted the law, leaving readers with the impression that we would be off the ballot and were just upset about it.

The Law

In fact, Secretary of State McPherson's office misinterpreted the law, in a way which no previous Secretary of State had done in the 77 years since its basic provisions were first enacted.

The law provides two ways in which parties not on the ballot can become ballot-qualified:

  • by getting enough voters to register as members of the party (currently 77,389, one percent of the total votes cast for governor in the most recent gubernatorial election); or
  • by getting enough voters to sign a petition asking that the party be given ballot status (currently 773,883, ten percent of the total votes cast for governor in the most recent gubernatorial election).

The law also provides two ways in which ballot-qualified parties can keep their ballot-qualified status when it is reviewed following a gubernatorial election:

  • by keeping enough voters registered as members of the party (currently 77,389, one percent of the total votes cast for governor in the most recent gubernatorial election); or
  • by getting a at least two percent of the vote for one of the party's candidates for a statewide office voted on in that gubernatorial election.

The law provides three ways in which parties on the ballot can lose their ballot-qualified status:

  • by failing to meet either of the two conditions above for staying on the ballot during a review following a gubernatorial election;
  • by failing at any time to keep enough voters registered as members of the party (currently 10,541, one fifteenth of one percent of all registered voters in California); or
  • by being ruled ineligible for advocating the unlawful overthrow of the government of the United States or supporting sedition or treason (which can only be done by a specific process, at a specific time, that requires the consent of the Attorney General).

The Peace and Freedom Party has been a ballot-qualified party since February 2003. We couldn't be disqualified on January 31st under the first method, because it was not time for such a review of parties' qualifications. We couldn't be disqualified on January 31st under the second method, because we had registration roughly six times greater than the minimum requirement. We couldn't be disqualified on January 31st under the third method, because it would have required the consent of the Attorney General and prior notice of an intention to disqualify the party, neither of which happened. (While we don't consider our defense of California's working class and our opposition to United States imperialism to be seditious or treasonous, it is possible that Bush, Schwarzenegger, and their Republican Party minions and Democratic Party friends may do so.)

The text of the relevant sections of the Elections Code:

5100. A party is qualified to participate in any primary election under any of the following conditions:

(a) If at the last preceding gubernatorial election there was polled for any one of its candidates for any office voted on throughout the state, at least 2 percent of the entire vote of the state.

(b) If on or before the 135th day before any primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their political affiliations transmitted to him or her by the county elections officials, that voters equal in number to at least 1 percent of the entire vote of the state at the last preceding gubernatorial election have declared their intention to affiliate with that party.

(c) If on or before the 135th day before any primary election, there is filed with the Secretary of State a petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that they represent a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This petition shall be circulated, signed, verified and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words "Petition to participate in the primary election."

5100.5. (a) Upon the occurrence of the gubernatorial election, each party shall have its qualifications reviewed by the Secretary of State. A party that does not meet the standards for qualification set forth in Section 5100 shall be prohibited from participating in any primary election. A party shall maintain its qualification to participate in any subsequent primary election by complying with any of the conditions specified in Section 5100.

(b) A party seeking qualification under provisions of this section and subdivision (b) or (c) of Section 5100 shall file formal notice with the Secretary of State that the party intends to regain qualification.

(c) Unless formal notice as required in subdivision (b) is timely received by the Secretary of State, he or she may have the name of the party omitted from any list, notice, ballot, or other publication containing the names of the parties qualified or seeking qualification that the Secretary of State may cause to be printed or published.

(d) For purposes of subdivision (b) of Section 8001, this section shall only be applicable to a party that has successfully obtained that status for the first time after having been a political body, and shall not apply to a political party that has been disqualified.

5101. Whenever the registration of any party that qualified in the previous direct primary election falls below one-fifteenth of 1 percent of the total state registration, that party shall not be qualified to participate in the primary election but shall be deemed to have been abandoned by the voters. The Secretary of State shall immediately remove the name of the party from any list, notice, ballot, or other publication containing the names of the parties qualified to participate in the primary election.

5102. No party shall be recognized or qualified to participate in any primary election that either directly or indirectly carries on, advocates, teaches, justifies, aids, or abets the overthrow by any unlawful means of, or that directly or indirectly carries on, advocates, teaches, justifies, aids, or abets a program of sabotage, force and violence, sedition or treason against, the government of the United States or of this state.

5200. Not less than 123 days before a primary election, the Secretary of State shall, with the advice and consent of the Attorney General, determine which parties are disqualified to participate in any primary election under Section 5102. If it is proposed to disqualify a party that was qualified to participate in the next preceding direct primary, notice of intention to disqualify shall be served by registered mail on the chairperson of the state central committee of the party, as shown by the records of the Secretary of State. In any event, notice of intention to disqualify shall be given in each county of the state by publication pursuant to Section 6061 of the Government Code. If there is no newspaper of general circulation printed and published in any county, publication shall be made in a newspaper of general circulation printed and published in an adjoining county.

If the party desires a hearing on the notice of intention to disqualify, it shall, within 10 days after service by mail or within 10 days after the last date upon which the notice was published in any county, whichever is later, file an affidavit in the Supreme Court under Section 13314 setting forth facts showing that the political party is not disqualified to participate in any primary election under Section 5102. If the party does not file the affidavit within the time specified, the notice of intention to disqualify shall constitute final disqualification. Before the affidavit is filed, a copy shall be personally served on the Secretary of State. When filed, the matter shall be set for return in not more than 10 days and shall have priority over any other pending cases.

In connection with proceedings in the Supreme Court under this section, the Legislature hereby declares its intent to create a speedy and expeditious method for judicial determination of the vital questions involved, and urges the Supreme Court to accept jurisdiction in any such proceeding. The Legislature further urges that the court instruct any referee before whom the taking of evidence is ordered to report back to the court in sufficient time so that the court's final order may be made effective on or before the 80th day before the primary election.

Precedents

There have been at least five cases in California's political history prior to 2006 where a political party was qualified by registration between two gubernatorial elections, but did not maintain its registration at the level required for qualification for the entire period until the next gubernatorial election. In each of these cases, the Secretary of State ruled the party qualified to participate in the next gubernatorial election, in which some kept their qualification by vote totals and some did not.

1934, Liberty Party
The Liberty Party had qualified by registration after the 1930 gubernatorial election, but did not keep its registration at the same level through the 1934 gubernatorial primary election. Republican Secretary of State Frank C. Jordan ruled the Liberty Party qualified to participate in the 1934 gubernatorial election.

1950, Independent Progressive Party
The Independent Progressive Party had qualified by registration to participate in the 1948 presidential election, but did not keep its registration at the same level through the 1950 gubernatorial primary election. Republican Secretary of State Frank M. Jordan ruled the Independent Progressive Party qualified to participate in the 1950 gubernatorial election.

1970, Peace and Freedom Party
The Peace and Freedom Party had qualified by registration to participate in the 1968 presidential election, but we did not keep our registration at the same level through the 1970 gubernatorial primary election. Republican Secretary of State H. P. Sullivan ruled the Peace and Freedom Party qualified to participate in the 1970 gubernatorial election, where we received the two percent of the vote necessary to remain qualified until 1998, when we lost our ballot status until regaining it by registration in 2003.

1998, Natural Law Party
The Natural Law Party had qualified by registration to participate in the 1996 presidential election, but did not keep its registration at the same level through the 1998 gubernatorial primary election. Republican Secretary of State Bill Jones ruled the Natural Law Party qualified to participate in the 1998 gubernatorial election, in which they received two percent of the vote for a statewide office to maintain their ballot status.

2002, Reform Party
The Reform Party had qualified by registration to participate in the 1996 presidential election, but in the 1998 gubernatorial election, they failed to win two percent of the vote for any statewide office. They retained their ballot status, though, because in the first report of registration after the 1998 election, they had registration of more than one percent of the gubernatorial vote. However, they did not keep their registration at that level through the 2002 gubernatorial primary. Republican Secretary of State Bill Jones ruled the Reform Party qualified to participate in the 2002 gubernatorial election, in which they again failed to win two percent of the vote for any statewide office and afterwards lost their ballot status because they did not have sufficient registration.

Support

While the Peace and Freedom Party's activists and members were outraged by Secretary of State McPherson's illegal attempt to remove our party from the ballot, we weren't the only ones. Richard Winger, editor and publisher of Ballot Access News, played a key role in gathering and distributing information to support our remaining on the ballot. In addition to drawing our attention to the 1934, 1950 and 2002 precedents (we found the other two on our own), he was able to speak to current and former staff of the Secretary of State's office so that they were aware of the precedents and their relevance. In doing so, he found that county election officials and Secretary of State's staff outside of a select few were not made aware that McPherson was even considering disqualifying the Peace and Freedom Party until after the decision was made. This may be because several former high-ranking officials in the Secretary of State's Elections Division said McPherson was clearly wrong as soon as they heard of the decision.

The Green Party of California issued a statement in support of our right to ballot access on Friday, February 3rd, just before McPherson reversed his decision:

Green Party of California expresses outrage at expulsion by Secretary of State of Peace & Freedom Party from June

SACRAMENTO -- The Green Party of California today joined a chorus of other pro-democracy voices in expressing outrage at the decision by the Secretary of State to expel the Peace & Freedom Party from the ballot before the June Primary.

Secretary of State Bruce McPherson said Wednesday that the venerable, 1960's born Peace & Freedom Party was being removed as an official party because its voter registration had fallen below necessary levels in the state. This leaves only five parties, including the Green Party, as those with candidates appearing on the June ballot.

"This is a blow to the democratic principles of this state and this country. The secretary has arbitrarily decided to remove the Peace & Freedom Party from the ballot, disenfranchising tens of thousands of voters and further entrenching the dominant parties," said Larry Cafiero, the Green Party's liaison to the Secretary of State.

In fact, according to electoral expert Richard Winger of Ballot Access News, the law does not support the ruling by the Secretary of State.

"McPherson is violating this law by applying the review before a gubernatorial election, not following a gubernatorial election," said Winger, who added that the Reform Party was allowed to stay on the ballot in 2000 and 2002 despite declining registration.

While political parties must have their qualifications reviewed -- parties must achieve 2 percent or more of the votes in a statewide election or increase their overall registration following each gubernatorial election -- McPherson has misapplied the law.

"The law is not being fairly applied by the Secretary of State. We strongly urge he reconsider his decision, which will benefit the voters of California and satisfy the democratic principles we all hold so dear," said Susan King, the GPCA spokesperson.

State Senator Debra Bowen, Chairperson of the Senate Elections, Redistricting and Constitutional Amendments Committee, had her staff spend quite a bit of time pursuing the issue during the time between McPherson's initial decision and its reversal. After the reversal, she issued a press release (which may be related to her being a Democratic Party candidate for Secretary of State):

IT’S EMBARRASSING

SACRAMENTO – "Embarrassing" is how Senator Debra Bowen (D-Redondo Beach), the chairwoman of the Senate Elections, Reapportionment & Constitutional Amendments Committee, described Secretary of State Bruce McPherson’s error in disqualifying the Peace & Freedom Party and its candidates from the June ballot – a mistake he corrected today by reversing his Tuesday decision.

"Eliminating candidates from the ballot who have every right to be there isn’t the way to promote democracy or to build people’s confidence in our electoral system," continued Bowen. "It’s embarrassing that on an issue as important as this, the Secretary could mis-read and mis-apply a law that very clearly lays out how political parties are qualified in this state and how they can be disqualified."

There are three ways for a political party to qualify to have its candidates appear on the primary ballot, one of which is by having a number of registered voters that’s equal to or more than 1% of the total number of people who voted in the prior gubernatorial election. That’s the method the Peace & Freedom Party used to re-qualify as a political party in California in 2003, based on the number of people who voted in the 2002 gubernatorial election.

On January 31, 2006, McPherson announced that since the current registration numbers for the Peace & Freedom Party had dropped below that 1% standard (and because the party couldn’t qualify under the other two options), he was disqualifying the party and removing its candidates from the June 2006 ballot. However, the Secretary of State improperly took the criteria used to qualify a political party in California and used it to disqualify that same party in the same gubernatorial election cycle, ignoring the other sections of California law that specifically address the issue of how a party can be disqualified.

"When you go back and look at former Secretary of State Bill Jones’ analysis of the bill that created this section of law and the Legislative Counsel’s interpretation of the law, it’s clear that the Secretary of State is supposed to wait until after a gubernatorial election to review a party’s qualifications and determine whether it should remain on the ballot for the next election," continued Bowen. "Making this kind of a decision just four months before the primary makes it virtually impossible for a disqualified party to challenge the decision or re-qualify for the ballot."

The statute doesn’t permit the Secretary of State to make multiple determinations as to whether a party qualifies for the ballot unless the total registration for the party falls below 0.15% of the total number of registered voters (which didn’t happen in the case of the Peace & Freedom Party). Absent that occurring, once a party qualifies for the ballot (ELEC 5100), it can only be removed from the ballot following the next gubernatorial election (ELEC 5100.5). Since the Peace & Freedom Party re-qualified for the ballot in 2003, it couldn’t – unless its registration numbers fell below 0.15% of the total number of registered voters in California – be disqualified as a political party until after the 2006 gubernatorial election.

"If the Secretary of State had the power to qualify and then disqualify a political party in the same election cycle, it would mean there would be no fixed point in time before a primary election when a party or its candidates would know whether they’re on or off the ballot," noted Bowen. "It could qualify one day, then a month later if 10 of its members moved out of state or re-registered with another party, causing it to dip below the 1% of registered voters in the prior gubernatorial election standard, it could be disqualified. Then, presumably, the cycle could repeat itself over and over again before an actual gubernatorial election takes place.

"This is about democracy and I’m glad the Peace & Freedom Party has been spared the expense of having to go to war in court over the issue of whether its candidates are legally entitled to be on the ballot," concluded Bowen. "The Secretary’s original decision to disqualify the Peace & Freedom Party penalized not just the Peace & Freedom folks, but every voter in this state because it would have deprived them of a choice they’re legally entitled to have."

The Reversal

At 1:57 pm on Friday, February 3, 2006, three minutes before the scheduled start of a press conference outside the Secretary of State's building in Sacramento, the Secretary of State's office called the Peace and Freedom Party's attorney, Bob Evans, and told him that the decision had been reversed. This was also confirmed at about that time to a reporter from the Sacramento Bee, and has also been reported independently by the Associated Press and the Oakland Tribune, but the Secretary of State has not yet announced it on his website.

 

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