Green Party seeks to take NOTA to California Supreme Court

April, 1995
by Mike Feinstein
published in Green Consensus, newsletter of the Green Party of California

When the Green Party of California achieved ballot status on January 1st, 1992, amid the enthusiasm was also a recognition of the potentially corrupting influence of the electoral process. In response, the party passed several internal structures and procedures that members hoped would embody and promote Green values.

Two of these rules were rejected by Secretary of State March Fong Eu, who claimed they were "contrary to or not provided for by existing statue" and would "interfere with the orderly conduct of elections." In response, the Green Party filed suit, and in late January, 1992 won judgment in Sacramento County Superior Court (Green Party vs. Eu, 94-16564). Among the procedures gained were the right to place None-of-the Above (NOTA) on the Green Party primary ballot, and the right of the Party to decide which primaries to contest.

On June 6th, 1994 NOTA made US history, as "nobody" won a state-wide election for the first time, defeating three flesh-and-blood candidates in the Green Party gubernatorial primary. But then on January, 19th, 1995 the California Court of Appeals Third Appellate District stripped the Green Party of NOTA, overturning the 1992 ruling (Green Party of California v. Jones).

The Appellate Court argued that while the Green Party had a valid concern that its message and strategy might be misrepresented by unrepresentative candidates, the State's need for uniform election rules outweighed the Green Party's right to its own internal rules. How? When Secretary of State Eu first refused to implement the Green Party's rules, she argued they would interfere with the orderly conduct of elections. Since then, the Green Party has conducted two primary elections, successfully implementing NOTA and the open/closed option. However, because the original suit was filed *before* these primaries were held, this evidence could not be considered by the 1995 Court. Hence, the claim of potential disorder still stands.

The 1995 Court also considered the relationship between "how much" disorder, and how much a party's internal rules "causing" this disorder are justified. In 1992, the Green Party had successfully argued for NOTA on the basis that party members had the right to choose "not-to-run", either as a reaction against unrepresentative candidates, or as a strategic option in and of itself. This time the Court ruled these procedures "haphazard", because it argued NOTA could win with a plurality of votes, but not necessarily a majority. This would be problematic because the Court assumed voters were not only voting for their candidate, but also voting *to be in the race*, regardless of which candidate wins. Hence it reasoned that since the *cumulative* vote of other candidates could be higher than NOTA's, the NOTA minority was denying the will of the "pro-any candidate" majority.

Of course, it is not necessarily the case that everyone voting for a single candidate would also prefer any *other* candidate over NOTA. In some cases, one's second choice might be NOTA. Similarly in races without NOTA, it is not necessarily the case that voters supporting one candidate always support any other. Nevertheless, in these cases winning by plurality is considered fair and not "haphazard". Yet this same logic was not applied to the Green Party's NOTA option.

On February 27th the Green Party petitioned the California Supreme Court to review the Appellate Court decision. Party attorney Mark Merin believes there is a real possibility the Appellate Court's decision will be overturned. Merin plans to argue that the State has no right to interfere with internal rules of the Green Party, because the imposition violates the "associational rights" of the Party, and that based on the experience of the 1992 and 1994 primary elections, the Party has demonstrated these internal rules do not conflict with orderly elections. In contrast to the lower court, if the Supreme Court does take this case, it *can* be fully briefed on evidence since 1992, evidence which would clearly bolster the Green Party's case.

Because this case has implications other parties to have their own internal rules, the Green Party has asked the Democratic, Libertarian, Peace & Freedom and Republican parties to write their own letters asking the Supreme Court to hear the case.

As of the end of March, there has been no indication whether the High Court will hear the case. But even if it does, it's unlikely it will be heard in time for the 1996 primary elections. Hence, it seems that 1996 will be the first year the Green Party will face elections without NOTA.

Although the battle over NOTA has gone on in the courts, it is also interesting to interpret it in light of recent political affairs. During the 1994 campaign, Acting Secretary of State/candidate Tony Miller urged the chairs of the Senate and Assembly elections committees to amend the state voting statute to include NOTA on all parties' ballots. Also in 1994, State Senator Quentin Kopp (I-SF) brought forth legislation to introduce NOTA in the general elections. (This legislation is currently set for hearing before the Senate Election committee.) These actions led many in the Green Party to believe NOTA would not be challenged, particularly since Miller was Acting Secretary of State in the Green Party suit.

However, in November, 1994, Miller lost to Republican Bill Jones. Jones is on record against NOTA, as well as basic reforms like Motor Voter. It was under Jones that the State appealed the 1992 Green Party of California v. Eu decision. Also, the Appellate Judge who wrote the decision, P.J. Blease, is a Deukmejian appointee. Blease commented afterwards that he wrote the decision in a manner he claimed would make it "unappealable". It is interesting to view the Court's "cumulative" argument in light of this comment.