The 9th circuit has now received briefs from all sides in the ongoing lawsuit over the “top-two” election system. The Democratic Party of Washington, the Republican Party of Washington, the Libertarian Party of Washington, the Secretary of State, and the Grange, have all expressed themselves. No one expects the 9th circuit to stop the Washington state primary, which is set to be held in two weeks. Probably a decision will be in 2009.
Ballot Access News
Edited By Richard Winger
Since this has already gone to the Supreme Court and been upheld, what hope is there to overturn it without letting it actually happen once and pointing out all the problems with it?
I still can’t figure why no evidence has been presented to the Supreme Court about how the “top two” has worked in Louisiana– which has used it since 1975.
Louisiana doesn’t have a Top 2 system. If they did, Foster v. Love would not have been decided the way it was – and perhaps a lawsuit wouldn’t have been filed at all. And if Louisiana hadn’t been forced to a December runoff, they would still be using Top 2 for federal elections.
In 2004, the Washington legislature created a Top 2 primary, only to have it vetoed by Gary Locke, who claimed in his veto message that he thought it was unconstitutional.
There is nothing to stop the Washington legislature from amending the Washington election laws to clean up the technical issues that the political parties are raising now. At the same time, the legislature could re-enact the rest of the Grange initiative.
I noticed that in the California presidential preference primary, that there were 148,711 voters in the AIP primary, but only 46,022 votes cast for a presidential candidate. For the Green Party, it was 35,844 or 53,906. For the Libertarian Party it as 16,858 of 31,440. For the Peace & Freedom Party, 6,444 of 12,482.
There were apparently large number of voters who had checked the box of a minor political party when they registered, and had wanted to express an opinion on Clinton, Obama, McCain, or Romney. In a Top 2 system, it would not have mattered how they had registered.
Jim R #3: You claim in your first sentence that Louisiana doesn’t have a “top two.” Then in your last sentence you say that the state “would still be using Top 2 for federal elections.”
Louisiana wasn’t “forced to a December runoff.” When a state wants to ensure that officials are elected with 50%-plus, it may have a runoff at some date following the first Tuesday after the first Monday in November.
Georgia, e.g., has its runoff general elections on the Tuesday before Thanksgiving.
Jim R #5: Interesting that you even want to use the “top two” monstrosity to choose presidential delegates (to which the national parties would never accede).
No state has ever proposed using the “top two” to pick presidential delegates– or to express presidential preferences.
The more I consider the effects of the “Top Two” system, the worse it seems.
I live in WA, and I still can’t decide if I will even vote in the primary, except for any ballot measures.
The old system worked fine. I know the parties did not like that nonmembers could theoretically vote in their primaries, but they went about it all wrong, and now the indies and minor parties have no direct access the to the November ballot; the ballot that actually elects people to office.
The US Supreme Court only said that the Washington “top-two” system does not, on its face, violate the associational rights of political parties. It did not decide the ballot access or trademark issues, and it even left the door open for a finding that the system, as it works in practice, violates the Associational rights of parties.
Richard,
The decision was even narrower than that. The only holding the SCT made was that the parties associational rights weren’t burdened simply because a candidate stated his “preference” for them on the ballot. Everything else was dictum.
But the initiative did more than just that, and the SCT remanded the case for resolution of the other issues. For example, it stated the candidate’s party “preference” in the voter’s pamphlet. Pre-existing unamended and unrepealed election law also required the candidate and the political parties to include the “affiliated party” on all campaign literature. Frankly, the more you read the SCT opinion the less cogent it seems.
Re #6, If Louisiana had adopted a top two system as practiced in Nebraska legislative elections, where there is always a general election, then ‘Foster v. Love’ would never have had happened, and Louisiana would still be using the early November date for the general election.
The Tuesday before Thanksgiving is hardly any better than December.
Re: #7
The results in the California primary illustrate that even those who are registered with minor parties want to be able to vote for any candidate regardless of party.
There of course is nothing that would prevent a direct nomination of presidential candidates, bypassing the national conventions. This could either be done on a partisan basis, or using a Top 2 system, or on a national or statewide basis.
Florida law gives the parties the option of using the presidential primary to select delegates to a national convention, or to directly select the nominee.
California’s Constitution (Article II, Section 5, as amended by the near-sighted Prop 60 of 2004) provides for direct nomination of presidential candidates:
The pre-2004 paragraph of Article II, Section 5, requires partisan primaries, including for President. The new paragraph (b) requires that the candidate who receives the most votes in the primary, appear on the November ballot.
Clearly the intent of Article II, Section 5, is to provide that the voters of California choose the nominees of their respective parties. It would be convoluted to interpret section (b) as providing that the party bosses could change the nominee selected by the voters.
The candidates on the November ballot in California should be:
Hillary Clinton – Democratic
John McCain – Republican
Don Grundmann – American Independent
Christine Smith – Libertarian
Ralph Nader – Green
Ralph Nader – Peace & Freedom
#12: The Louisiana “top two” (popularly called the “open primary”) is an extension of the old one-party (truly no-party) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary.
Louisianans would consider it insane to have another round of voting after one candidate had received 50%-plus of the vote.
“The Tuesday before Thanksgiving is hardly any better than December.”
If a state wants to have a runoff general election, that state sets the date.
Would the day after the general election be any better?
BTW: Arizona tried runoff general elections for a time, following the fiasco of Gov. Evan Mechem, who was elected with 40%. Since no candidate got 50%-plus for governor in November 1990, a runoff was held in February 1991.
#13: “… even those who are registered with minor parties want to be able to vote for any candidate regardless of party.”
The US Supreme Court has made it clear that the voters’ “wants” cannot be used as an excuse for disregarding the associational rights of political parties.
Having different presidential nominees on different states’ ballots is a sure-fire formula for losing the election. The Whig Party did that at times, and it was one reason that the Whigs became defunct.
The parties are not going to dispense with national conventions, despite the fact that the major parties’ conventions have become little more than giant pep rallies.
Since Louisiana law only provides for the top 2 candidates being voted on in a second election, it is meaningless to refer to it as a “Top 2” election, given that in Nebraska and Washington the Top 2 always advance to the general election.
Louisiana does not use a November election date for their odd-year elections for governor and the legislature. Using the November election date for the congressional runoffs was simply an attempt to comply with the federal statute. Louisiana not only think that December elections are bad, they aren’t really all that keen on November elections.
Had they switched to a true Top 2 system, they could have maintained their calendar as much as is feasible, with the primary in September/October and the congressional election in early November.
They’re still going to hold a congressional election in November. Sooner or later, they are going to be challenged in court for excluding voters who are qualified to vote in legislative elections (for the larger chamber) from congressional primaries based on Tashjian (both the majority opinion and the Stephens dissent).
How much “choosing” of their representatives is going to occur on November 4, 2004 in Louisiana, and how much will happen during the primaries where many persons will be denied the right to vote on the basis of not having affiliated with a party?
#15, The US Supreme Court has made it clear that the voters’ “wants†cannot be used as an excuse for disregarding the associational rights of political parties.
The actual behaviour of voters in California illustrates that Justice Stephens was right in Jones and that any political association by merely voting in a primary is quite superficial.
The voters in California by approving Prop 60 (I believe you have praised their wisdom for doing so) have clearly indicated that they wanted their primary votes to determine the parties nominees.
“A YES vote on this measure means: The State Constitution would require that the top vote-getter from each party in a state primary election advance to the general election. (The current statutory elections process has this requirement.)”
Californians were apparently unconcerned about politically associating with Whigs in other States. Prop 60 does not prevent Nancy Pelosi from going to a national convention. And Senator Obama might still be able to get on the presidential ballot by petition as an independent candidate.
#16: “Louisiana not only think that December elections are bad…”
Louisiana obviously did not consider December elections to be “bad,” since, after Foster v. Love, the state set an early December date for its congressional runoffs.
Louisiana’s Democrats are inviting independents into their congressional primaries, while the Republicans are not, so it’s not correct to say that independents are being excluded.
There will be considerable competition in LA’s November 2008 congressional elections. The Senate seat is contested, and there will even be independent candidates for several House seats.
#17: Justice Lewis Powell once wrote that “the act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party.”
I’ve never commented on Prop. 60. I was just glad, in 2004, to see the so-called “open primary” go down to defeat in 51 of California’s 58 counties.
That would be a brilliant strategy to have both Sen. Obama and Sen. Clinton on California’s November ballot. I’m sure that Sen. McCain would love that.
#18 The district court set the schedule on remand. After the Supreme Court had ruled, the legislature considered setting the date, but it was blocked in the Senate. Finally the court ruled that the changing the dates would be sufficient. This was challenged in Love v. Foster, based on the argument that Louisiana should have to go back to the last legal system (pre-1977(?)), but the district court was upheld by the 5th Circuit.
The Louisiana legislature later codified the court’s decision.
Consider a qualified voter who was not affiliated with the Republican or Democratic parties. He votes in the open primary for the legislature (larger chamber) and no questions asked. A year later he attempts to vote in a congressional partisan primary and is denied the right to vote.
Under the US Constitution, the Louisiana Democratic party does not have the authority to invite independents to vote in their congressional primary. If they had that authority, it would mean that they could withhold it as well.
The Senate seat would be contested even if the open primary were used. If any additional independents are running because of the switch, it is because they hope to get elected with a plurality. And you also have a semi-open seat, and another where the sitting representative has been indicted.
Re #19.
Maybe someone will point out that the Don Grundmann won the AIP primary, and end the dispute whether Baldwin or Keyes will be the nominee.
It is an easy step from their to having Clinton placed on the general election ballot in California.