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The way California holds its presidential primary violates the constitutional rights of political independents and misuses taxpayer dollars to “benefit wholly private political parties,” a nonpartisan election group will argue in a lawsuit it says it is filing against the state.

A draft filing from by the Independent Voter Project argues that Secretary of State Alex Padilla, who administers elections, is ignoring a state constitutional requirement to hold an “open” presidential primary, in which anyone—regardless of political party—can participate.

Currently, each political party decides who gets to vote in its primary, forcing political independents who want to participate to jump through additional administrative hoops, or join a party outright.

“The State of California can’t create a process that includes some voters and excludes others,” said Chad Peace, the Independent Voter Project’s legal counsel.

A spokesperson for the Secretary of State’s office said it would wait until the lawsuit is filed before commenting.

In the past, the Democratic Party has allowed political independents without a party preference to cast a vote in its primary—but those voting by mail have been forced to request the ballot ahead of time. That rule isn’t likely to change in 2020.

Right-leaning independents have had an even tougher time. State GOP rules typically require voters to re-register as Republicans if they want to vote in the party’s primary.

But independents and absentee voters—who also are disproportionately young and people of color—make up a growing share of the California electorate. As CalMatters reported last month, the current system could confuse a large portion of would-be voters, perhaps as many as a million Californians, and lock them out of the process.

Plaintiffs in the suit will include six political independents in California, including the Independent Voter Project’s executive director, Dan Howle.

The filing, slated for state superior court in San Bernardino County, argues that the state’s current primary process violates the California Constitution, which requires the state to hold an “open primary.” That term isn’t precisely defined in state law, but Peace argues that it means “open to voters without conditions.” 

This may be the first time this argument will be presented in a California court, but federal judges have weighed in elsewhere—and they have not been convinced, said Christopher Elmendorf, a law professor at UC Davis.

“The federal courts have said that parties have the right to keep non-members from voting for their candidates, as a general rule,” he said. “This sounds like an effort to relitigate under the state Constitution a type of claim that the federal courts have not simply just rejected, but have said itself is violative of the rights of the party.”

In its filing, the Independent Voter Project also argues:

State spending on a process that benefits private political parties violates the California Constitution.

Putting additional restrictions on the electoral choices of political independents violates their due process and equal protection rights as guaranteed by both state and federal constitutions.

Requiring a political independent to register with a particular party or request its ballot as a condition to vote for candidate violates their right of association (or, in this case, non-association) which is guaranteed by the first amendment of the U.S. Constitution.

Among the plaintiffs are both Democratic- and Republican-leaning voters who, the filing states, would like to vote for a presidential candidate running in the primaries of those two parties “without being forced to associate” with that party.

“Would you say to somebody, ‘Well, you have the freedom of religion, but you have to go to a Catholic Church in order to practice it?’” said Peace. “Then you also can’t say, ‘You have freedom of political expression and the freedom of vote, but you have to go to the Democratic Party’s private nomination process in order to exercise it.’ It’s the same argument.”

The Independent Voter Project has advocated for a “public ballot” for nonpartisan voters, allowing them to pick from a list of all the major-party candidates—though parties would not be obligated to count those votes.

The group has unsuccessfully lobbied state legislators to create such a ballot in the past.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

Millions of Californians dropped off their ballots on Tuesday or mailed them in, but they might want to double-check online—because a missing or a mismatched signature could void their vote.

Counties are contacting voters because they’re now required by law to do outreach. Still, voters should confirm online that their ballots were tallied. If not, they should call their county election office to be sure their vote counts, said Kim Alexander, president of the California Voter Foundation.

“Voters need to be alert and aware,” she said.

After this year’s June primary, California lawmakers passed the Every Vote Counts Act, which gives voters time to correct a mismatched or missing signature. The law was enacted after a lawsuit was filed by the American Civil Liberties Union of Northern California, which argued that 45,000 ballots were rejected last year because of mismatching signatures.

Already county offices are contacting voters asking them to fix their signature issues, such as this instance detailed by a Shasta county voter.

But other voters found out on their own—by checking themselves—including well-connected Democratic communications guru Roger Salazar. As he documented on Twitter, he learned his ballot was rejected due to a non-matching signature, so he went and voted in person instead.

Voters who failed to sign their ballots have eight days after Election Day to make their ballots count. Voters whose signatures don’t match have two days prior to the certification of an election to fix their ballots, Sam Mahood, press secretary for the Secretary of State Alex Padilla, confirmed in an email. This year, county officials have until Dec. 7 to certify election results. However, Alexander warned that some counties may certify their results sooner.

As of today, the state still has millions of unprocessed ballots. California’s massive size along with other measures the state takes to count and certify ballots mean the state takes much longer than other states to officially call some contests.

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

The California Department of Motor Vehicles has given the public a series of piecemeal explanations as it acknowledged making more than 100,000 errors in recent months while registering Californians to vote.

Software problems, it said in May. Human errors from toggling between computer windows, it said in September. Data-entry mistakes that were corrected but never saved, it said in October.

What DMV officials didn’t acknowledge—and still haven’t—was what may be the underlying problem: The agency rolled out a massive new voter-registration effort with a piecemeal computer system. Instead of the properly integrated computer program that was needed, the agency launched in April with disparate computer systems that didn’t automatically link together, according to advocates who have been working closely with the DMV on the new “motor voter” system. That meant DMV workers had to manually link information from various systems during transactions between April and September, when an integrated system was put in place, said Kathay Feng, executive director of California Common Cause.

All the problems reported so far happened during that period.

“What we’re finding out is that they were really patching together an old system with several new systems,” Feng said. “We still don’t know if … they had planned all along to have an interim process between April and September, or if this is something they cobbled together because something wasn’t ready.”

The DMV declined to answer CALmatters’ questions about the computer systems, instead providing a statement saying the motor-voter program “has been implemented in phases, allowing DMV to roll out additional functionality.” The latest upgrade, the statement says, was on Sept. 26.

The botched rollout of the motor-voter system—which comes as the state and the country prepare for midterm elections—points to two long-standing problems in California. One is the state government’s pattern of failure on large information technology projects; the other is its history of flouting the federal voter-registration law.

Common Cause and other voter-rights advocacy groups sued the state in 2015, alleging it had failed to follow federal law requiring that states register people to vote and update their voting registrations when they get or renew a driver’s license or ID card. The Legislature then passed a law creating automatic voter registration at the DMV, and the advocacy groups have been working with the government to implement it.

The idea was that rather than duplicating information by filling out a voter-registration form and a driver’s license form, Californians who are legally eligible to vote would automatically be registered when completing the DMV’s computerized application for a driver’s license or ID card.

Since the program launched in April, about 1.4 million Californians have registered to vote or updated their voter registration through the motor-voter process—and the DMV has acknowledged three batches of mistakes:

• A software error affected 77,000 registrations, resulting, in some cases, in two registration forms indicating different party preferences being issued for one voter (reported in May).

• A window-toggling error affected 23,000 registrations, resulting in changes to voters’ party preference, vote-by-mail options and language choices (reported in September).

• A data-entry error resulted in 1,500 people being registered to vote even though they are not legally eligible, because they are not U.S. citizens, are younger than 18 or are on parole for a felony conviction (reported in October).

Though the problems are serious, none indicate intentional acts of fraud or hacking. Instead, they appear to be the result of human error and glitchy technology—which officials say are being fixed with software updates and employee training. The secretary of state said erroneous registrations have been canceled, and DMV leaders say they’ve put new procedures in place to prevent mistakes in the future.

“We continue to review the efficiency and accuracy of the program and will make additional upgrades as needed,” said the statement from DMV spokeswoman Jessica Gonzalez.

Secretary of State Alex Padilla has said the errors amount to a small fraction of the transactions processed by the DMV and maintains that the corrective steps he’s taking, including a third-party review of the motor-voter system, “are crucial to ensuring voter confidence in our democracy.” National experts have repeatedly found that voter fraud is isolated and rare. Still, with the state government run entirely by Democrats, the motor-voter problems have fueled Republican arguments that voting systems are plagued by fraud. In a new digital ad this month, Padilla’s GOP opponent, Mark Meuser, highlights cases of fraudulent voting and says he wants “to end California's rigged elections.”

The potential for politicizing the problem is why the state government needs to come up with a big picture fix, said Mike Madrid, a Republican political consultant who is an outspoken critic of President Donald Trump.

“There is a way to salvage this, but it requires not dismissing it as ‘no big deal,’” he said. “The president of the United States is questioning the integrity of our electoral system, and we have just legitimized that fear-mongering.”

Madrid wants to see a bipartisan commission formed to examine California’s voting system—not only the motor-voter problems, but also issues like the incident during the June primary when more than 118,000 names were erased from Los Angeles County voter rolls. An audit found that case was caused by a formatting mismatch between state and local computer systems that left blank spaces where dates of birth should have been, causing the computer to misclassify those voters as underaged.

The state’s Department of Finance will examine the motor-voter program as part of its audit of the DMV, which has been plagued by numerous problems this year, including massive wait times. But critics say that review is insufficient, because the Department of Finance, like the DMV itself, is part of the governor’s administration.

This summer, lawmakers rejected a Republican assemblyman’s request to have the state’s independent auditor investigate the DMV. Now the Democratic assemblywoman who wrote the law creating the new motor-voter system said she is going to ask for the audit when the Legislature reconvenes in January.

“We gave them plenty of time. We increased their budget twice in order to implement this. We allowed them to delay implementation because we wanted it done right,” said Assemblywoman Lorena Gonzalez Fletcher of San Diego. “When they told us they were ready, obviously they weren’t quite ready.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics