Metropolitan News-Enterprise


Tuesday, November 21, 2017


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Ninth Circuit:

Padilla Properly Blocked Establishment of ‘Independent Party’

Judges Say Secretary of State Justified in Rejecting ‘Notice of Intent’ to Seek Official Recognition Based on Potential Confusion With American Independent Party


By a MetNews Staff Writer


California Secretary of State Alex Padilla was justified in rejecting a notice of intent to form the “Independent Party” on the ground that it could be confused with the existing American Independent Party, the Ninth U.S. Circuit Court of Appeals has held.

Its decision Friday, announced in a memorandum opinion, affirms the granting of judgment on the pleadings to Padilla.

A new party can qualify under Elections Code §5100 if, at the last gubernatorial election, at least two percent of those voting, and who indicated a party preference, designated that party. It can qualify as an official party, under §5151, for the general presidential election if, in the primary, at least 2 percent of those voting identified themselves as members of that party.

This requires filing a notice with the secretary of state, pursuant to Elections Code §5001(b). When the would-be party did that, however, the notice was bounced.

Voter Confusion

Padilla cited §5001(a) which provides that a name for the party—chosen at a “a caucus or convention at which temporary officers shall be elected”—be a name that “shall not be so similar to the name of an existing party so as to mislead the voters, and shall not conflict with that of any existing party or political body that has previously filed notice pursuant to subdivision (b).”

The secretary of state determined that voters would confuse the “Independent Party” with the “American Independent Party.”

(Apparently, the name of the latter party—formed in 1967 to provide a party to back the presidential bid of Alabama’s segregationist governor, George Wallace—is itself confusing. The Los Angeles Times on April 17 of last year reported that its poll showed that 73 percent of those who registered in the party thought they merely identifying themselves as independents and had no party affiliation.)

Independent Party’s Brief

In a brief filed in the Ninth Circuit, Los Angeles attorney Robert E. Barnes asserted:

“The Appellants[’] choice of the name ‘Independent Party’ was not arbitrary, or done solely to circumvent California law, rather the Appellants are participating in a long and nationwide tradition of using the name ‘Independent Party’ to assist, and represent candidates who held independent values in getting on the ballot. No other name adequately represents the Appellants[’] views or effectively serves their goals. By refusing to allow the Appellants to register as a qualified political body under the name of their choosing, the Appellee made it impossible for the Appellants to qualify as an official political party in the State of California and put a candidate on the 2016 presidential election ballot as a recognized candidate of the Independent Party, and thus severely burdened the Appellants’ First and Fourteenth Amendment rights.”

The Ninth Circuit responded that where state regulations do place “severe burdens” on rights, there must be a “a compelling state interest” to justify the encumbrances. Where burdens are lighter than that, the opinion notes, “important regulatory interests” will generally justify the regulations.

No Severe Burden

It declares:

“Here, Secretary Padilla’s application of §5001(a) did not severely burden plaintiff-appellants’ rights. Section 5001(a) does not prevent plaintiff-appellants’ from organizing, it does not regulate their internal affairs, and it applies equally to both major and minor political parties….Because Secretary Padilla’s application of § 5001(a) did not severely burden plaintiff-appellants’ rights, the court applies a less exacting review to determine whether California’s interests justify Secretary Padilla’s application of § 5001(a) in this case.”

The opinion continues:

“Secretary Padilla asserts that the name ‘Independent Party’ is too similar to an already existing official political party, the ‘American Independent Party.’ Moreover, California has reserved the label ‘Independent’ for presidential and vice-presidential candidates who qualify for the ballot through an independent nomination process….According to Secretary Padilla, California has an interest in avoiding confusion and deception at the polls that justifies the application of §5001(a) to prevent plaintiff-appellants from officially registering as the ‘Independent Party’ in this case. The Supreme Court has recognized that avoiding confusion, deception, and frustration in connection with the democratic process are important state interests….Therefore, California’s interest in avoiding confusion and deception in connection with the general election qualifies as an important regulatory interest that justifies Secretary Padilla’s application of §5001(a) to deny the Independent Party official political party status in this case.”

The case is Independent Party v. Padilla, No. 16-15895.

Co-plaintiff with the Independent Party is businessman William Lussenheide who, in 2010, was an unsuccessful candidate for the U.S. House of Representatives, running on the American Independent Party ticket.


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