Is the Party Over? Examining the Constitutionality of Proposition 14 as it Relates to Ballot Access for Minor Parties

Abstract

U.S. Supreme Court case law surrounding ballot access for minor parties is nothing less than a muddled morass. Mired in inconsistencies and ill-conceived notions, Proposition 14, passed by California voters in June 2010, will not only create open primary, top-two elections in the Golden State but will also give the Supreme Court another opportunity to determine the constitutional bounds of restrictions on minor parties' abilities to reach election ballots. Under Proposition 14, any registered voter will be able to vote for any candidate in the primary election. Candidates will list their party preference, or lack of preference, on the ballot. The top two vote-getters, regardless of party preference, will proceed to the general election. Therefore, in some districts two candidates who designate the same party preference could compete in the general election.

For some minor parties in California, Proposition 14 could sound the death knell by making it harder for them to retain ballot-qualified status. This may pose constitutional problems because candidates can only list their party preference for a ballot-qualified party. This problem is compounded by the fact that Proposition 14 prohibits the counting of ballots cast for write-in candidates in the general election. The write-in prohibition further reduces voters' ability to cast ballots for candidates of their choosing and makes the ballot access scheme that Proposition 14 imposes even more restrictive. The question is: Does Proposition 14, in conjunction with other California ballot access laws, act to unconstitutionally infringe on minor parties' ballot access rights and voters' rights to cast meaningful votes and to associate with others to further common political beliefs?