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Summer Recess

E-235 - Friday, July 12, 2019

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  • CA16 (Fresno): added Fresno councilmember Esmeralda Soria (D) - likely D - challenge to Costa (D)
  • AD36 (Palmdale): added businessman/educator Ollie McCaulley (D) - toss-up challenge to Lackey (R)

SacTown Talks by The Nooner


  • AB 1639 Tobacco products.
  • SB 27: Primary elections: ballot access: tax returns.
  • SB 307: Cadiz water project
  • Buh-Bye MotherFracker
  • Cakeday

It's Friday and it's summer recess. Booyah!

This afternoon, we're recording "What a Week" and never has the name of the pod been more appropriate. This week was certainly drinking water from a legislative firehose. So, I'll continue to take the legislative actions in chunks for several days.

One bill that I'm spending a lot of time on is AB 1639 (Gray, Cunningham, and Robert Rivas), which is the tobacco age verification and flavored e-cigarettes bill. As I wrote yesterday, amendments were announced in Assembly Governmental Organization Committee ("G.O.") late Wednesday before the 16-0-5 vote. However those amendments were not "put across the desk" yesterday and won't be available until after the Legislature returns August 12.

As announced, the amendments will take the fines for purchase or possession of tobacco products for persons between 18-21. Whether or not the mandatory drug or tobacco cessation education and community service provisions for those under 18 were also removed was unclear, as was the one-year suspension of driving privileges for those under 18. As with existing law, those 18+ with a valid U.S. military ID on active duty are allowed to purchase and possess tobacco products.

The stated amendments will also add to the advertising restrictions in the bill.

There is a lot of confusion out there about the bill, as there was among members in Wednesday's G.O. hearing. In social media, many pro-vaping and tobacco cessation advocates think the bill is bad because it makes it harder for adults 21+ to access flavored e-cigarettes, other than menthol, mint, and tobacco flavors. The largest company, JUUL, already limits purchases of other flavors to online with age verification only. According to the Truth Initiative (formerly the American Legacy Foundation), which was created in the Master Settlement Agreement with the U.S. gov't over tobacco marketing, mint is the number one flavor of JUUL of persons age 18-21. (Mango is apparently number one overall for JUUL and is now sold exclusively online.)

The bill will be set for a hearing of Assembly Health after the Legislature on August 12. With the stated amendments, the stated opposition was diverse, including the Vapor Technology Association and health groups, including the American Cancer Society Cancer Action Network. The California Medical Association removed its opposition because of the orally stated amendments removing youth penalties of the bill. While the Vapor Technology Association includes JUUL at the Platinum Level ($100,000+) that many see benefiting from the bill, it also represents smaller providers of devices and "pods." They don't have the online presence that JUUL has already built out and used as part of its advocacy efforts against flavor restrictions. Many also rely on smaller convenience stores, such as those at gas stations and corner markets, for as distribution. In the hearing it was stated that the bill's provisions would limit sales of flavored e-cigarette products (other than menthol, mint, and tobacco) to around 1,000 tobacco-only 21+ stores from the current 30,000+.

Anyway, that's a long way to say that I'm still working on this for much more writing from The Nooner perspective--what does the bill actually does, what are the political dynamics, and who are the winners and losers. Just to be clear, I'm neither pro- nor anti-vaping. It's a fascinating story of politics, legislative process, and with a significant impact on businesses ranging from producers to wholesalers/distributors to retailers, as well as consumers.

Much more below the jump!

SB 27 (McGuire and Wiener): Primary elections: ballot access: tax returns. Yesterday, the State Senate concurred in Assembly amendments and sent to Governor Newsom SB 27, which would require candidates for President and governor to disclose five years of tax returns to be eligible to appear on the primary ballot.

As Gibran introduced me on last week's "What a Week" pod, I'm the "constitutional scholar who is overly worried with, uh, the Constitution." I'd replace "scholar" with "geek," but I served as research institute to the great and late constitutional scholar Gary Goodpaster at King Hall and befriended several others. Indeed, I love and hate the document dearly.

And, much to the dismay of many of my liberal friends, I believe that SB 27's requirement as it pertains to presidential candidates is unconstitutional. Of course I want to see President Trump's tax returns. Few Americans would read them but as you know, we have a crisis in journalism, and President Trump's tax returns would be great for the employment of journalists.

There is an irony about why I think it's unconstitutional considering that SB 27 passed both houses with only votes by Democrats, and that is the Supreme Court case California Democratic Party v. Jones 530 U.S. 567 (2000). The case came out the year I graduated law school and passed the bar. To think there are staffers in the Capitol who weren't born at that point makes me feel very old.

In a 7-2 decision (Stephens and Ginsburg dissenting), CDP v. Jones held that the blanket "open" primary created by Proposition 198 (1996) violated the First Amendment freedom of association of members affiliated with the plaintiff political parties, which included the CDP, California Republican Party, the Libertarian Party of California, and the Peace and Freedom Party of California.

In CDP v. Jones, the Supreme Court overturned the Ninth Circuit Court of Appeals decision upholding the law. The high Court held relied on past precedent that along with a freedom to associate comes a freedom not to associate. Under Prop. 198, qualified political parties were guaranteed a spot on the general election ballot for whoever emerged for that party from the primary election. What Prop. 198 did was allow any voter to cast a ballot to represent that party in November.

After CDP v. Jones, primary reform advocate and former lieutenant governor Abel Maldonado pushed for an alternative that would meet constitutional muster, and that was adopted by the voters as Proposition 14 (2010), placed on the ballot by the bare minimum two-thirds of both houses as SCA 4. Under the top-two primary, for state and congressional offices, any voter can cast a ballot for any candidate, regardless of party affiliation or lack thereof. The candidates placing first and second in the primary advance to the November general election.

While minor parties hate the top-two primary because it essentially locks them out of the general election for state and congressional races, there has not been found a constitutional right for parties to appear on the November ballot for those offices, and voters are free to cast ballots for a candidate affiliated with any party or not expressing a party preference.

The presidential process is not affected by California's top-two primary. In the primary election, voters aren't voting directly for a candidate. They are voting for delegates to a national party convention who have pledged support for a candidate. Often times, campaigns fizzle out after the primary and the candidate "releases" their delegates and encourages them to vote at the convention for another candidate.

In 1984, California's Democrats picked Gary Hart in their primary election as one of 26 states that did so. Jesse Jackson won Alabama and Louisiana and went on to give one of the best convention speeches of all time. Hart and Jackson withdrew during convention and former vice president Walter Mondale, who entered the San Francisco convention with the most delegates, captured the nomination. Mondale of course then lost to Ronald Reagan in a 18.2% landslide, winning only his home state of Minnesota. Hart went on to be the favorite for 1988, until that whole Monkey Business thing.

The point of all that is that voters in presidential general elections cast ballots for tickets representing parties that have met certain thresholds. In 2016, the California presidential ballot included the American Independent (for Trump/Pence), Democratic, Libertarian, Peace and Freedom, and Republican parties. However, the process of how the delegates to each party convention were left to each party.

For example, in 2020, the California Democratic Party allows voters registered with the party preference of the Democratic Party or no party preference (NPP) voters to participate. There's a whole other issue of how NPP voters casting ballots by mail get that Democratic ballot, but I've written about that before and will again. The California Republican Party, however, limits participation in the presidential primary to only voters who register with Republican Party preference.

In summary, the presidential is not top-two and it's up to the parties who is a candidate for November. While the statutory language differs for each party, the Secretary of State is required to place candidates that are generally recognized as having sufficient voter interest on the primary ballot. Of course, the vote on March 3 is cast for "presidential preference," which in turn sends delegates to convention who share a similar preference.

That's the freedom of association issue of the First Amendment applied to the states through the Fourteenth Amendment and why I believe anything beyond basic threshold of legitimacy of candidacy and the minimum qualifications set forth in Article II, Section 1 of the United States Constitution will not be upheld if it reaches the Supreme Court of the United States. Here's the old, familiar language of the Constitution, unchanged since its inception:

"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."

Do I like that fifth paragraph of Section 1? No. I agree with Arnold Schwarzenegger that an immigrant who has been a citizen for many years should be eligible to run to lead the "nation of immigrants." Would I vote for him to be President? Depends whose on the ballot, but I certainly have liked him politically more in his post-gubernatorial years. After all, the citizenship clause was really to keep the Red Coats from running for President.

Should presidential candidates disclose tax returns? Sure. However, I don't think a state can require it as a minimum condition for appearing on the ballot, as it interferes with an association of people (members of a political party, or those a party's membership allows in for such purpose) to choose who will appear under the association's name on the November ballot. The same would be true if a Legislature said either only homeowners or renters can vote for President. In my opinion, all of these constitute a violation of the First Amendment applied to the states through the Fourteenth Amendment.

The U.S. Constitution is extremely difficult to amend, unlike the State Constitution. It's a blessing from our Founders and a curse, but it is what it is. And I think there is zero chance that Paragraph 5 of Section 1 of Article II will be amended with two-thirds of both houses of Congress and three-fourths of the state to add additional qualifications to running for President in my lifetime. 

Now there are many smart lawyers in the Legislature on the Democratic side of the aisle who voted for the bill. I have no doubt they did what a majority of their constituents wanted them to do, so they did the right thing politically. Their job is that of a legislative function and not a judicial one. This is not unlike the ban on long gun sales to persons under 21, which is now in federal court. I wrote last Tuesday on that issue and concluded that it too is likely to be found unconstitutional, even though I like the bill.

Yes, I agree with both Jerry Brown, who vetoed a similar bill last year, and the California Republican Party.

SB 307 (Roth): Also yesterday, the Assembly sent to the governor the bill to require approval by the State Lands Commission (Lieutenant Governor, Controller, and Director of Finance) of a water conveyance project using unused conveyance capacity that it "does not adversely affect the natural or cultural resources of those federal or state lands." If the bill is signed by Governor Newsom, it will be seen as a victory by conservationists and a loss for Cadiz. Nevertheless, this issue will likely continue in the courts for years.

The bill is about the Cadiz Water Project that I wrote about on May 17 and I need not repeat the history. The project is about a plan by a Los Angeles-based publicly traded company that has purchased land above an aqueduct in the Mojave Desert to build a 31-mile pipeline along a railroad right-of-way across mostly federal lands to the Colorado River Aqueduct owned by the Los Angeles Department of Water and Power for the conveyance points west in Southern California. LADWP would then use it for its needs or sell it to other water agency buyers. Obama's Bureau of Land Management determined there were significant environmental impacts, the Trump Administration reversed the finding, and it's now in federal court.

Cadiz argues that it could go a long way to addressing Southern California water needs, conservationists argue it will affect sensitive natural environments including springs, and there is an argument that the Colorado River Aqueduct doesn't have unused capacity.

Water law keeps plenty of lawyers and lobbyists employed and I'm not going to pretend to try to explain it all in this space.

Meanwhile, "Chinatown" is available for $2.99-3.99 on many streaming services. Always great to see the 42-year-old Jack Nicholson.

More and CAKEDAY after the jump...


Probolsky Research

BUH-BYE MOTHERFRACKER! In the Desert Sun, Janet Wilson reports that "California Gov. Gavin Newsom on Thursday directed his secretary of natural resources to fire Ken Harris, the state’s top oil regulator, after learning from The Desert Sun/USA TODAY and watchdog groups that fracking permits have doubled without his knowledge since he took office and that seven supervisors charged with regulating the industry own shares in major oil companies."

#CAKEDAY: Happy birthday to Tim Hart, Joe Sanberg, Marco Santana, and Max Vargas!

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