Changes Ordered in Description of Open Primary Proposition

In a response to a lawsuit brought by the California School Employees Association, a Sacramento Superior Court judge has modified the ballot description of Proposition 14 on the June ballot, an initiative that would create a so-called open primary.

Supporters of the measure, which would have the top two primary vote getters regardless of party affiliation advance to the November general election, argued that the changes sought by the union and the lawyers representing it were aimed at making the measure appear less attractive to voters.

Lawyers seeking the wording changes countered that the ballot description was misleading and omitted key parts of the measure.

Backers of the proposition praised the edits of Judge Allen Sumner.

“I applaud the judge for seeing this ploy for what it was and giving Californians the right to vote on a measure with a fairly drafted ballot label and summary,” said Sen. Abel Maldonado, a Santa Maria Republican, who made his vote in favor of a budget in February 2009 contingent on placing an open primary measure before voters in June.

The original ballot description and the official title and summary of Proposition 14 was written by the Legislature.

Normally, the Attorney General and the Department of Justice handle that task.

But, increasingly, lawmakers write their own title and summary for measures they place on the ballot, usually to write the description in manner designed to attract voters.

In a bill approved last spring, SB 19, lawmakers wrote the ballot arguments for six largely budgetary measures for a special election called in May and the ballot description for Proposition 14. The title and summary and description of Proposition 14 are:

“ELECTIONS. PRIMARIES. GREATER PARTICIPATION IN ELECTIONS. Reforms the primary election process for congressional, statewide, and legislative races. Allows all voters to choose any candidate regardless of the candidate’s or voter’s political party preference. Ensures that the two candidates receiving the greatest number of votes will appear on the general election ballot regardless of party preference.

“PRIMARY ELECTION PROCESS REFORM. GREATER PARTICIPATION IN

ELECTIONS. Encourages increased participation in elections for congressional, legislative, and statewide offices by reforming the procedure by which candidates are selected in primary elections. Gives voters increased options by allowing all voters to choose any candidate regardless of the candidate’s or voter’s political party preference. Ensures that the two candidates receiving the greatest number of votes will appear on the general election ballot regardless of party preference. Does not change primary elections for President, party committee offices, and nonpartisan offices.”

However, lawyers for the school employees union contended that the word “reform” – used three times in summary of the initiative — was “argumentative” and should be replaced with “change,” a more neutral word.

“Reform is a somewhat loaded term,” said Deborah Caplan, a Sacramento lawyer with Olson, Hagel and Fishburn. “It’s presented as a positive term in the title and summary.

Jim Parrinello, a lawyer with Nielsen Merksamer, the firm representing Maldonado and the “yes” campaign, said there was “nothing inherently wrong with the word ‘reform’.”

Caplan also said the claim that the measure would foster greater voter participation was “speculative.”

Sumner, a former legal affairs deputy to former Governors Jerry brown and Gray Davis, struck “greater participation in elections” from the ballot language, replacing it with “increases right to participate in primary elections.”

Sumner also removed “reform” from the ballot title.

He also made additions to the ballot language. They included:

“Provides that candidates may choose not to have a political party preference indicated on the primary ballot.”

The judge also clarified that the measure offers voters more options “in the primary.” Caplan argued that the fix was needed because in the general election in which only the top two vote getters advance, there are fewer options for voters.

Sumner’s most significant change was to reject the conclusions of the Legislative Analyst about the proposition’s fiscal effect.

The analyst said there would be offsetting costs and savings. “Fiscal effects would not be significant for state and local governments, the analyst concluded. Caplan, however, presented declarations form local election officials saying costs could be $10 million to $20 million each election cycle.

Sumner added this sentence to the ballot description:

“The data are insufficient to identify the amount of any increase or decrease in costs to administer elections.

Then, over objections from the lawyer for the Legislative Analyst, changed the conclusion of the fiscal analysis to the same sentence. The Legislative Analyst argued unsuccessfully that Sumner’s conclusion was not that of the analyst.

Final language for the five propositions appearing on the June ballot is supposed to be given to the State Printer by 5 p.m. March 15.

It unclear whether any party will appeal Sumner’s ruling.

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