Notes regarding NOTA from the 1995 case
Green Party v Jones

Note: Underlining and comments in italics added by author. All other text is from the court documents.

From the original 1990 suit, the GPCA won the right to (1) Elect our county councils by our internal rules rather than code; (2) Close our primaries in selected races to prevent any candidate from running; and (3) To use NOTA in our Primaries (modified affirmative vote rule).

The 1995 appeal from the state overturned items 2 & 3.

From 1990 Suit:

Green Party vs. Eu, 94-16564

Judgment was entered granting the petition for writ of mandate commanding the Secretary of State to conduct elections for Green Party county council members in accordance with the party's rules and to follow party primary closure rules concerning the primary races to be contested. The trial court declined enforcement of the Green Party affirmative vote rule requiring that the candidate garner more votes than the number of ballots left blank. However, it commanded the Secretary of State to add to Green Party primary ballots a choice of "none of the above" and to deny certification to a nominee who receives less votes than are cast for that category.

The Secretary of State appeals from the portion of the judgment imposing the primary closure rule and the none-of-the-above remedy for the affirmative vote rule. [31 Cal.App.4th 752]

1995 Appeal by State:

Green Party of California v. Jones, 31 Cal.App.4th 747
[No. C013273. Third Dist. Jan 19, 1995.]

The Standard

"Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to 'severe' restrictions, the regulation must be 'narrowly drawn to advance a state interest of compelling importance.' ... But when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions...." (504 U.S. at p. 434 [119 L.Ed.2d at pp. 253-254], citations omitted.)

Defects in the Argument for NOTA the Court Sees:

Summary:

1.       Undervote might  be voters saying “any of the candidates are fine with me.” Thus, if NOTA wins by a plurality, a majority of Greens may have wanted one of the candidates to win.

2.       NOTA votes become equivocal when there are write-in candidates.

3.       Voters who voted for a losing candidate may want one of the other candidates to proceed to the General Election.

The first defect of the affirmative vote rule is that a voter may fail to vote for a candidate for reasons which do not bear on majoritarian control. A voter may fail to select between candidates out of the belief that the winner, whoever that may be, should become the party standard bearer. For this reason the affirmative vote rule may disserve the associational interest in majoritarian control depending upon the happenstance of the relative numbers who do and do not vote and the sentiments of those who choose not to vote.

This defect is palliated by the none-of-the-above remedy broached by the trial court. A voter who selects none-of-the-above has expressed the desire that none of the candidates whose names appear on the primary election ballot go forward as the standard bearer on the general election ballot. Nonetheless, the remedy does not account for the wishes of those who decline to vote for any category and, if the winner is a write-in candidate, a vote for "none of the above" is equivocal. A permissible inference to be drawn concerning the wishes of a voter who declines to vote, necessarily also declining to vote for "none of the above," is that "any of the above" is an acceptable nominee.

More importantly, the none-of-the-above remedy does not overcome another defect of the affirmative vote rule; it does not account for the wishes of the supporters of unsuccessful candidates in multiple candidate primaries. Those who support a losing candidate may well desire that, if their candidate does not prevail, the most successful candidate should be the party standard bearer in the general election.

The Courts Opinion:

Summary: NOTA is an “uncertain and fitful remedy” for the claim that a minority in the Primary could control who represents the GP in the General. This is not viewed as a severe restriction to the Party. The state’s interest in “ uniformity of ballot procedures in order to prevent voter confusion and to minimize administrative burdens” is greater than the Party’s claimed injury.

Notwithstanding the sentiments of a majority of party members, even an extraordinary majority, under the affirmative vote rule a plurality bloc which chose "none of the above" would prevail over those sentiments. These [31 Cal.App.4th 759] defects render the affirmative vote rule and the derivative none-of-the-above remedy an electoral affectation. [i.e. electoral abnormality]

The Secretary of State suggests the state has an interest in the uniformity of ballot procedures in order to prevent voter confusion and to minimize administrative burdens occasioned by idiosyncratic party procedures. Although the potential for confusion and the marginal administrative burden of the none-of-the-above remedy do not appear great, neither can we say they are insignificant. Even little variations, if they are capable of multiplication at the behest of political parties contain the seeds of an elections procedure Babel.

As we have explained, the affirmative vote rule and the derivative none-of-the-above remedy provide at best an uncertain and fitful remedy for the claimed injury of potential minority control of access to the party's ballot. For this reason the associational interests of the Green Party are not subjected to severe restrictions by the state's election statutes.

The regulations are nondiscriminatory. The question is whether they are reasonable in light of the burden imposed upon the Green Party's associational interests. As we noted, that burden is not great. The reasonableness of the burden must be viewed in that light.

As noted, Burdick v. Takushi, supra, 504 U.S. at p. 434 [119 L.Ed.2d at pp. 253-254], holds that " 'the State's important regulatory interests are generally sufficient to justify' [reasonable, nondiscriminatory restrictions] ..." "upon the First and Fourteenth Amendment rights of voters ...." That is the case here.

We conclude that " 'the State's important regulatory interests are ... sufficient to justify' the restrictions." [31 Cal.App.4th 760]

Disposition

­FN 6. The Green Party belatedly claimed at oral argument that the none-of-the-above remedy can be squared with the Elections Code. The argument comes too late and, in any event, is contrary to the plain words of section 6610, which provides that the person who receives the highest number of votes at a primary election is the nominee of the party.