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E-216 - Wednesday, July 31, 2019
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RECENT AURAL PLEASURE:
IN TODAY'S NOONER:
Note: JUUL just amended its campaign filing, removing the $100,000 to the California Voter Project.
Happy campaign finance deadline day! Midnight tonight is the deadline for state semi-annual and Q2 lobbying reports. While some candidates have filed over the last few days, most will wait until this evening. Many geeks will be refreshing this SOS page as they are watching the second night of Democratic debates tonight.
BEJUULED - EUREKA! I think we've found the mysterious sponsorship money for the California Democratic Party convention by vaping company JUUL that left lots of delegates upset. On May 25 (six days before the convention), JUUL gave $100,000 to the nonprofit "California Voter Project." The officers of that nonprofit are lawyers at Miller & Olson, LLP.
Miller & Olson is a law firm that works primarily for Democratic-leaning candidates and committees. They are arms' length from Olson Hagel, which is across Capitol Mall and serves as the General Counsel to the California Democratic Party. Well, Rebecca used to work there...
Because California Voter Project operates in the political nonprofit world such as voter registration and engagement rather than supporting candidates and issues, the contribution was not reported until JUUL submitted its major donor report today.
Let me be clear that I don't see anything illegal about this. It's just fascinating to follow the mysterious money.
SB 27 (McGuire and Wiener): We should have had wagers on the timestamp of the lawsuit against the bill signed yesterday by Governor Newsom to require presidential and gubernatorial candidates to submit tax returns for five years to appear on the California primary ballot.
According to Richard Winger of Ballot Access News, the lawsuit was filed in Southern District of California by Rocky De La Fuente. The Southern District comprises of San Diego and Imperial counties and sits in San Diego. The case was randomly assigned to U.S. District Court Judge Thomas J. Whelan, a semi-retired Clinton appointee.
He ran in 2016 as a Democrat and garnered 0.2% of the vote. The complaint asserts De La Fuente is running in 2020 as a Republican and is a San Diego resident.
As expected, The complaint alleges that SB 27 violates the Qualifications Clause of the United States Constitution. That clause establishes qualifications of having attained the age of 35, natural born citizenship, and resided in the United States for the last fourteen years.
De La Fuente further asserts that several United States statutes also provide for confidentiality of tax returns.
He further asserts that SB 27 violates his First and Fourteenth Amendment rights of freedom of association, another expected argument.
By the way lawyers, it's "Newsom," not "Newsome."
De La Fuente's lawsuit is unlikely to be the only one but appears as the only one filed yesterday (which clearly was written preceding Newsom's signing of SB 27. Jeremy B. White writes for Politico that President Trump's lawyers also are likely to file a suit citing the Qualifications Clause and First Amendment.
“The State of California’s attempt to circumvent the Constitution will be answered in court,” Trump attorney Jay Sekulow said in an emailed statement shortly after Gov. Gavin Newsom signed the bill into law.
A challenge seemed all but inevitable given Trump’s legal moves to stymie House Democrats and New York officials who are also seeking the president’s tax returns. Trump campaign official Tim Murtaugh declined to comment on a potential lawsuit but said the California law is unconstitutional.
“The Constitution is clear on the qualifications for someone to serve as president and states cannot add additional requirements on their own,” Murtaugh said in a statement. “The bill also violates the 1st Amendment right of association since California can't tell political parties which candidates their members can or cannot vote for in a primary election.”
Joel Fox writes "It is now up to the courts to push back on this blatant political move," while CalMatters's Laurel Rosenhall notes that Newsom's signature on SB 27 is another sign that he is chartering different path than Jerry Brown, who vetoed the measure two years ago.
MORE ELECTION LAW... De La Fuente is also the plaintiff in the case challenging California's process for independent voters to qualify for the state's presidential general election ballot. Current law requires 1% of voters registered at the close of the prior general election to sign a petition under the ballot qualification process. Because of the increase in registration (particularly with DMV registration), 1% has increased from 178,039 in 2016 to 196,964 for 2020. Signatures must be collected within 105 days.
If affiliated with minor parties, including the often misleading "American Independent Party" (AIP), candidates can be "generally recognized" by the Secretary of State and included without the petition requirement. There were seven AIP candidates on the presidential primary ballot in 2016. It looks like Senator Tom Umberg's SB 696 to prohibit the use of "independent" in a party name is going to pass when the Legislature returns for the final month of session on August 12.
De La Fuente challenged the requirement with appropriate standing, as he unsuccessfully ran in the 2016 presidential primary as a Democrat and wanted to run in November as an without a qualified party affiliation. He alleges that the 1% requirement unconstitutionally burdens his First Amendment and Fourteenth Amendment rights by burdening his Freedoms of Speech and Association.
The last time a candidate affiliated with a non-qualified party or unaffiliated with a party qualified for the California ballot was 1992--Ross Perot. His "Reform Party of California" would subsequently qualify via registrations but because none of its candidates received 2% of the vote and the registration of the party fell below the requisite 0.067% of registrations statewide, the party lost its status. De La Fuente argued that that fact alone shows that California's 1% requirement is unconstitutionally burdensome.
On July 19, the Ninth Circuit upheld the District Court's dismissal of De La Fuente's challenge. The court acknowledged that there was a burden to candidates not affiliated with a generally recognized party, but that in a balancing analysis with the state's interest in preventing ballot crowding, the state's statutory structure is constitutional. De La Fuente can seek en banc review of all active Ninth Circuit judges or review by the Supreme Court of the United States ("SCOTUS"). If en banc review is granted and the three-judge panel is reversed, the State of California can file for a write of certiorari by SCOTUS.
De La Fuente's attorneys in both cases are neither election law or constitutional lawyers. The California Republican Party will likely also file suit with its attorney--Chuck Bell--as the lead. Bell was co-counsel on CDP v. Jones, which held the open primary unconstitutional largely on Freedom of Association grounds. As I've written, that's likely the controlling issue in the requirement for candidates to provide tax returns. The argument is that it's not in the Qualification Clause, and Republican presidential primary voters should have the freedom in their closed primary to nominate anyone who meets the three tests thereof--age of 35, natural-born citizen, and fourteen years of continuous U.S. residency before filing.
Joe Mathews writes:
"The policy on independents is being challenged in court, on the basis that the parties shouldn’t be able to set rules for their own primaries. The state should do it. I wouldn’t go that far—if Democrats and Republicans want to keep us out, well, that says lots about them. But we non-partisans should have a ballot that allows us to vote for any qualified candidate for president, regardless of party. The parties can decide whether or how to count these votes. But at least let us make our choice."
EMISSIONS: For CalMatters, Dan Walters looks at the dispute between California and the Trump Administration over auto emissions, made more interesting last week with a proposal by the big four automakers to support California's high standards, albeit under a different timeline. They fear that a patchwork of requirements will throw auto manufacturing into disarray.
IT'S ELECTRIFYING! In the Times, Sammy Roth reports that as Central Valley farmers leave land fallow because of water insufficiency/quality, many are turning to electric panels to continue generating revenue from their land. Roth writes:
"Solar energy projects could replace some of the jobs and tax revenues that may be lost as constrained water supplies force California’s agriculture industry to scale back. In the San Joaquin Valley alone, farmers may need to take more than half a million acres out of production to comply with the Sustainable Groundwater Management Act, which will ultimately put restrictions on pumping.
Converting farmland to solar farms also could be critical to meeting California’s climate change targets. That’s according to a new report from the Nature Conservancy, an environmental nonprofit."
HOMELESS, NO HORSING AROUND and CAKEDAY after the jump...
HOMELESS: For CapRadio, Chris Nichols looks at the debate over whether government can force homeless off the street and into shelters. Nichols writes:
"Sacramento Mayor Darrell Steinberg and Los Angeles County Supervisor Mark Ridley-Thomas, who lead a state homelessness task force, recently proposed a way to do just that. Their “right to shelter” plan would first boost the supply of shelter space statewide — requiring cities and counties to build more beds — and then legally obligate homeless people to accept one if offered.
No legislation has been proposed yet. But two civil rights groups say that such a law would be bad policy and potentially violate a person’s Constitutional rights.
“You can’t compel individuals to be held in a place where they don’t want to be” unless they are a danger to themselves, said Curt Child, legislative director for the advocacy group Disability Rights of California."
In the Times, Steve Lopez looks at what happens to confiscated belongings of homeless individuals.
NO HORSING AROUND: For the LAT, John Cherwa reports that a third horse has died during training at the Del Mar Racetrack. Cherwa writes:
"Bowl Of Soul, a 3-year-old filly trained by Bob Baffert, broke down Monday with an injury to her right hind fetlock, which is similar to an ankle. The horse was euthanized, according to Dr. Rick Arthur, equine medical director for the California Horse Racing Board.
Del Mar, which was the safest among the nation’s major tracks last year, had a freak accident on the morning of the second day of racing, July 18, when Charge A Bunch, trained by Carla Gaines, threw his rider and ran head first into Carson Valley, trained by Baffert. Both horses died instantly from broken necks.
There have been no fatalities in 82 races this meeting."
Assembly Governmental Organization Committee chair's "ballot measure" committee reported $37,625 combined from the Del Mar Thoroughbred Club and the Thoroughbred Owners of Southern California over the last couple of days.
#CAKEDAY: Happy birthday to Jonathan Bash, Melody Gutierrez, Mai Harvill, Dane Hutchings, Senator Jim Nielsen, and Amy Supinger!