Sacramento Democrats have come up with a clever way to suppress votes in the next primary, one that will keep hundreds of thousands of voters from the polls next March.  This is a just passed law that forbids the Secretary of State from listing President Trump on the Republican primary ballot because he has not released his tax returns, which he obviously has no intention of doing.

The vote suppression will come because without the incumbent president listed, and no likelihood of a serious Republican alternative, GOP voters will have no reason to vote in the primary election.  At the same time, millions of Democrats are sure to surge to the polls given the hot Democratic race for president. 

Ordinarily this would affect only the presidential race, and then not in a meaningful way as Trump is sure to win the GOP nomination for a second term, California or not.  But under California’s unique primary law for all other partisan offices, the fall runoff is not between the top Democrat and the top Republican, but the top two primary finishers regardless of party.

So with only Democrats voting in the March primary, we will end up with only Democrats in the November runoffs for congress and the legislature.  Republicans are hoping to make a run at some of the seven US House seats they lost in 2018, and at least four incumbent GOP state senators are facing serious challenges in 202.  There could be no Republicans for several of these offices if only Democrats vote in the primary contests.

Voter suppression is usually something Democrats accuse Republicans of doing.  Democrats and their friends in leftwing academic circles have long contended that requiring photo identification before voting is a GOP plot to keep low income Democrats from the polls.  Actually there is no sign that photo IDs or other GOP hatched voting legislation keeps people from voting. Democrats claimed that new voting laws passed by the GOP legislature in Georgia cost them the governor’s race in 2018; but in fact the turnout in 2018 was a million and a half more voters than cast ballots in 2014. 

But the California Democratic voter suppression is in a class of its own; it will keep people from the polls by denying the incumbent president a place on the official Republican ballot.  This is so extreme it amounts to a manipulation of the ballot never before tried in American history. Gov. Jerry Brown killed a similar measure last year, but Gov. Gavin Newsom signed this version no doubt hoping it would vault him to major domo of the Trump resistance parade.

Republicans have not taken this sitting down; they have filed two lawsuits, one in state court, one in federal court, challenging the new law as unconstitutional.  The state and national GOP and California Trump supporters alleged in federal court that the measure violates numerous constitutional provisions, the most important of which is qualifications for the presidency. 

Their suit notes that the Qualifications Clause of the US Constitution sets forth three eligibility requirements, being a natural born citizen, over the age of 35, and living in the United States for 14 years.  They contend California is trying to add a new “extra- constitutional qualification”, public release of tax returns.  

On its face this is a pretty strong argument, except that the peculiarities of the Electoral College system as outlined in the Constitution provide that “each state shall appoint, in a manner as the legislature thereof may direct, a number of electors” (allotted to that state). These Electors meet following the November election and actually elect the president.

Selecting delegates to a national convention is nowhere in the Constitution and the only directive is that the legislature directs how the presidential election is conducted.  So can the legislature add a qualification to be placed on the state primary ballot? That is an issue for the federal courts to sort out. This suit was filed in the Sacramento federal court which means any decision probably has to go through the Ninth Circuit Court of Appeals and onto the Supreme Court.  This could be a time consuming process.

The second lawsuit was filed by the California GOP directly with the California Supreme Court and challenges the tax return law on state constitutional grounds.  Here the plaintiffs are greatly aided by a constitutional amendment passed in 1972. It directs the Secretary of State to place on the primary ballot all the acknowledged presidential candidates of all the qualified parties. The suit asserts Trump must be placed on the ballot by this California constitutional amendment.

The 1972 amendment was intended to prevent exactly what the legislature is doing, keeping a viable candidate’s name off the ballot.  For decades ambitious governors had a habit of running as “favorite sons” so they could control their state delegation at the national convention and make deals to vote their delegates.  In 1960, Gov. Pat Brown ran as the Democratic favorite son, keeping voters from choosing between John Kennedy, Lyndon Johnson or Hubert Humphrey, the real presidential candidates. In 1968, Gov., Ronald Reagan ran as the GOP favorite son, keeping Richard Nixon and Nelson Rockefeller off the ballot.

Favorite son candidacies never worked especially well, but one was a spectacular success.  In 1952, Gov. Earl Warren ran as the GOP favorite son. At the Chicago convention that July, California’s delegation was crucial to the success of the Dwight Eisenhower forces, and so his handlers “negotiated” a price for Warren to vote with them on an important issue.  That price was giving Warren the first Supreme Court opening in the new administration, which Warren got when he was made Chief Justice in 1953.

On the whole “favorite sons” were a tool for smarmy politicians in smoke filled rooms to trade away their state delegations for political goodies.  California was wise to do away with this in 1972 by requiring the Secretary of State to put every candidate’s name on the ballot.

Now it will be up to the California Supreme Court to decide whether a contemporary gaggle of smarmy politicians, the California legislature, can get away with playing even worse games with today’s presidential ballot.