Jim Boydston (in “Feel the Bern” T-shirt) and Josephine Piarulli (as Lady Liberty) are among six people joining lawsuit against the Secretary of State’s Office. Photo by Chris Stone

Three San Diegans are among six California residents suing Secretary of State Alex Padilla to make the state’s presidential primary open to all unaffiliated voters — which would force the GOP to let non-Republicans vote in its March primary.

Former Bernie Sanders delegates Jim Boydston and Josephine Piarulli and Jeff Marston are joining the Independent Voter Project in the suit filed Monday by San Diego’s Cory Briggs — the recently announced candidate for city attorney.

Lawsuit filed July 22, 2019, against Secretary of State Alex Padilla over presidential primary voting rules. (PDF)

Marston is registered as preferring the Republican Party, says the 16-page complaint filed in San Bernardino Superior Court (because Briggs says it’s closer to his office in Upland).

“He would like the opportunity to vote in the primary election for a presidential candidate other than a Republican without being forced to change his party preference,” the suit says.

Under current rules, those without party affiliation — called NPP for No Party Preference — can request a Democratic primary ballot but not ones from the GOP, Green Party or Peace & Freedom Party, the suit says.

“In 2020, the voters of California will not even know what parties allow or disallow NPP voters to vote for a presidential candidate in the primary election until October 20, 2019 – all because Defendants have given private political parties the power to make and change that determination up until that date,” the suit says.

But Chad Peace, a spokesman for the effort with the San Diego law firm of Peace & Shea, told Times of San Diego on Thursday that IVP isn’t targeting a specific party’s primary.

“Rather, our argument is that any voter, regardless of party, should be able to cast a vote for a candidate,” he said. “But that doesn’t require allowing them to participate in either party primary. This can be done a few ways, but most simply, by providing a ‘public ballot’ that lists all candidates and is open to all voters (also the default for NPPs).”

Peace said California voters have taken it for granted for so long that the only way to vote is in a party primary.

“Why? Because we’ve allowed parties to write the rules,” he said.

Peace and the lawsuit make the same argument:

“Our case brings a fundamental question: Who do our publicly funded and (administered) elections serve? If the answer is voters, then there must be a nonpartisan option to vote. Otherwise, we end up with a system like we have now that violates several state and federal laws including the First Amendment’s fundamental right of nonassociation. (In other words, should a voter have to affiliate themselves with the R or D party to participate in an election they pay for?).”

Court records show a trial-setting conference set for Jan. 23, 2020 — only nine weeks ahead of the March 3 primary.

But Briggs said the court set the date automatically when the suit was filed.

“We will approach the court for a revised schedule once the defendants have been served,” he said.

As of Feb. 10, 2019, more than 5.6 million Californians were registered as No Party Preference — or 28.3% of the state electorate. (Democrats had 8.6 million, or 43.1%, and Republicans had 4.7 million, or 23.6%.)

The lawsuit says: “In 2020, due in part to the rapid increase in voters registering No Party Preference, if this court does not intervene, there will be a level of de facto voter suppression that will render the most important underpinning of the California Constitution – that all political power is inherent in the people — meaningless.”

The suit calls on the court to declare certain California election rules illegal, “rending the laws and/or their implementation null and void.”

According to a CalMatters: “Those who vote the old-fashioned way, in person at the polls, can simply request their presidential ballot of choice on the spot. But for those who vote by mail (now a majority of the state’s electorate), that request takes a remarkably analog form: a postcard signed and sent to the county registrar of voters.”

If voters skip that step, said the piece, the section of their ballot reserved for presidential candidates will be blank.

Paul Mitchell of Political Data Inc. was quoted as saying: “Very few independent voters know that they have to do something to get the presidential ballot.” So the current system could disenfranchise a million would-be presidential voters in California, he said.

Meanwhile, the Independent Voter Project is calling a bill by Assemblywoman Lorena Gonzalez flawed.

AB 681 fails to give California’s 5.6 million NPP voters the opportunity to choose presidential candidates,” says the IVP. “Gonzalez’s bill would provide NPP voters additional information about California’s current and confusing semi-closed presidential primary rules, but fails to provide California’s voters an open presidential primary, as the California Constitution requires.”

Daniel Howle is one of the suit’s plaintiffs. He’s also chairman and executive director for the Independent Voter Project — which authored Measure K on San Diego’s 2016 ballot. It mandated a top-two runoff in the city’s general election even if one candidate won more than 50% of the vote in the primary. (It won 59% to 41%.)

Howle said Gonzalez’s bill shortchanges California’s 5.6 million No Party Preference voters who will continue to be denied the same rights to choose the presidential candidates as party voters.

“Gonzalez has put party politics before the rights of voters in California,” Howle says. “As a candidate for secretary of state she should fight to give every voter the same voting rights and not just members of political parties. IVP is hopeful Assemblymember Gonzalez will either amend her bill or introduce new legislation to give NPP voters equal access to vote in the 2020 presidential primary.”

The IVP’s Peace said the Secretary of State’s Office has yet to comment — and hasn’t responded to an earlier certified letter with questions about upcoming administration.

Peace said such a challenge to the state’s current system hasn’t been made before — and apparently not in other states.

California “has unique combination of state law protections and circumstances,” he said.

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