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.

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