The California legislature, meeting all night long, passed two bills at about 4 a.m. on February 19 to ask the voters if they wish to revise election systems. SCA 4 changes the California Constitution, and passed 27-12. In the Senate, the “No” votes included two Democrats (Leland Yee of San Francisco and Loni Hancock of Berkeley) and ten Republicans. SB 6 changes the California election law and passed by an almost identical margin. One cannot presume that legislators who voted “Yes” were actually in favor of the proposals; most of them opposed the idea but felt they had to vote for the bills in order to break the budget stalemate.
The two proposals, together, provide for a Washington state-style election system. All congressional elections, and all elections for state office except for Superintendent of Public Instruction and judicial offices, would be designated “voter-nominated” offices. All candidates would qualify for the June primary ballot. Then, the top two vote-getters would compete in November. All voters would get the same ballot for these offices.
The ballot would say, “My party preference is (whatever) party.” However, candidates could only choose the name of a party that is currently qualified for the ballot. It seems plausible that a party like the Socialist Workers Party would have a strong lawsuit to force the state to let its members, who are running for office, specify that they prefer the Socialist Workers Party. The bills say that members of unqualified parties could only have “No party preference” on the ballot. This seems to violate the First Amendment. Since all candidates would get on the ballot by filing fee and a petition of either 40 or 65 signatures, the issue of ballot crowding would no longer have any relevance to party qualification.
Also, the proposals seem to violate the U.S. Supreme Court’s many ballot access precedents, which say that a vote test in a primary is equivalent to a petition (Munro v Socialist Workers Party) and also say that petitions cannot be greater than 5%. The top-two system, in practice, requires a showing of support of approximately 25% to 35% in the primary, and since the U.S. Supreme Court has said that vote tests are equivalent to petitions, and since petitions cannot be greater than 5%, therefore the vote test is also likely an unconstitutional ballot access hurdle.
That theory is only true because the California primary, like the Washington primary, would not be an “election”. An “election” is an event at which someone can be elected. The California proposal does not permit anyone to be elected in the primary, even if that person got 100% of the vote. The only election would be in November. Ballot access to “the” election is protected, even for candidates too weak to have a realistic chance of winning.
For clarification, note that the proposals that passed are not the same as ACA 6, which had been pending in the legislature. ACA 6 did not relate to congressional elections. The original version of the bill that did pass, SB 6, had been originally introduced last month as a bill relating to hazardous wastes. All the language about hazardous wastes was deleted from the bill, and the election law provisions were added into it, before it passed.
Well, we voted something like this down in the past and we will have to do it again.
Equal nominating petitions for all candidates for the same office in the same area — for ONE election.
P.R. legislative bodies and A.V. executive and judicial offices.
NO primaries, caucuses and conventions are needed.
CA may yet get *modern* after a few more attempts — due to the nonstop minority rule gerrymander crisis in CA.
It sounds like you’re saying that this measure would repeal voter registration by party.
The Supreme Court precedents that you discuss in the fourth paragraph above clearly only apply to congressional elections. The fact that the measure also applies to congressional elections may turn out to be a blessing in disguise. If the voters are foolish enough to pass this monstrosity, that will be grounds for a federal court challenge.
Interesting that the bill was originally about hazardous wastes. The “top two” is hazardous to small parties and independent candidates, and it’s PURE EXCREMENT.
did they fiddle with the provision of a very low (I don’t remember the %) number of votes needed to maintain 3rd party ballot status? Can someone remind me of what that number is, and where I’m right that it applies for any state-wide candidate of the party?
The measure makes no change in the state’s definition of “political party”, and that could be a problem for the supporters of this idea. The California requirements to qualify as a new party are extremely difficult, and now that the link would be cut between how many candidates get on the ballot, and how many qualified parties there are, it seems to violate equal protection that some candidates could list their party “preference” and others (i.e., members of unqualified parties) couldn’t. At least Washington state let all candidates choose a party “preference”.
If top 2 is adopted, then the extremist gerrymander math in the CA legislature may be even worse — by having more de facto marginal gerrymander candidates – especially in the de facto one party gerrymander districts — especially over 60 percent Donkey or Elephant districts — i.e. more districts having 2 Donkeys or 2 Elephants in the general elections.
P.R. NOW before it is too late.
See the Israel election P.R. results —
http://en.wikipedia.org/wiki/Israeli_legislative_election,_2009
U.S.A. — stuck in the ANTI-Democracy minority rule gerrymander Dark Age.
You are misinterpreting the sections on a candidate’s party preference. The voter registration has been modified. Currently a voter may “declare the name of the political party with which he or she intends to affiliate at the ensuing primary election”. Under SB 6, a voter may “disclose the name of the political party that he or she prefers”. There is no requirement under existing law that the “declared party” on a registration form be a qualified party, and SB 6 would make no such requirement for a “disclosed party preference”. The registration form, as it does now, would include a list of qualified parties.
A candidate’s party preference that appeared on the ballot would have to be that which he disclosed on his voter registration.
SB 6 also defines “affiliation with a party” as having “disclosed a preference for a party”, which would be used for the sections of the law dealing with party qualification.
In Munro v. Socialist Workers Party, the issue was the nomination process under Washington’s old blanket primary system. Under that system, the candidates for nomination by the major parties (Democrats and Republicans, usually) were placed on the primary ballot. Independent and 3rd party candidates were nominated separately, but then the nominee was placed on the blanket primary ballot.
Voters could vote for any candidate for any office regardless of party, but the nominees were selected by party, and had to receive 1% of the vote cast for the office.
In effect, the primary for each office was independent from each other (the election in Munro was a special US senate election, and the only one on the ballot). To secure a place on the general election for it nominee, the party had to get 1% of the voters to participate in its primary for the office.
The US Supreme Court ruled that this 1% was equivalent to a modicum of support standard, but within acceptable limits.
The Voter Choice system does not place candidates on the general election ballot on the basis of party affiliation or preference. No one in Munro suggested that Lloyd Cooney with 19.6% of the vote should appear on the general election ballot. It was only 14th-placed Dean Peoples with 596 votes (0.09%) who took issue. But if an election system does not provide ballot access on the basis of affiliation with a political party, organization, or gang, his claim is irrelevant.
#3 “It sounds like you’re saying that this measure would repeal voter registration by party.”
SB 6 does not. It does recast party registration from a “[declaration of] the name of the political party with which he or she intends to affiliate at the ensuing primary election”, a “[disclosure of] the name of the political party that he or she prefers”.
In reality an ordinary voter is not a “member” of a political party. Rather, their relationship with a political party is as a voter in the party primary. A standard such as used in Mississippi (intent to support the nominees of the party), is not only not enforceable but unconstitutional.
Since party primaries would no longer exist under Voter Choice primary, a voter may now disclose a “preference for a political party” on their registration. It is the party preference expressed by a candidate on his voter registration that would appear on a ballot.
Munro was not specific to congressional elections. The election in question was the 1983 special senate election, so even Foster v. Love does not apply.
The bottom line is that a “top two” system that does not allow the nominees of all political parties to go on to the general election is a very terrible thing.
If the California voters are somehow tricked into voting in such a “top two” system (which I do not think will happen), then the smaller political parties – including the Republican Party in the year 2012 because that ship is sinking fast – will need to start working better together and form temporary coalition candidates that will oppose the Democratic Party candidates.
#9: “A standard such as used in Mississippi (intent to support the nominees of the party)…”
That law, enacted in 1987, has almost never been applied.
“Munro was not specific to congressional elections.”
There has been a series of rulings that say– essentially– that the ballot for federal offices on the first Tuesday in November must include any candidate who has met a vote test of 5%. The Washington state “top two” and the California proposal set a standard of 25% or more.
#11 I said it was unenforceable and unconstitutional. People can vote for whoever they want to. Can you imagine what would have if people were forced to vote for Rod Blagojevich simply he was the nominee of their Democratic Party? He might have been elected governor.
Dean Peoples and the Socialist Worker Party did not seek a place on the ballot for a federal election held on the November date set by Congress.
The Munro opinion says, “the primary election in Washington, like its counterpart in California, is ‘an integral part of the entire election process . . . [that] functions to winnow out and finally reject all but the chosen candidates.’ Storer v. Brown
Note: at the time of Munro the primary election was the blanket primary (after the 1% test had been added), and the primary in California was a conventional partisan primary.
But the Top 2 primary also forms an integral part of the entire election process, and does serve to winnow out and finally reject all but the chosen candidates.
In the 1983 Washington special senatorial primary election, there was a candidate with 19% of the vote that was denied a place on the final ballot. This was totally unremarkable because they were from the same party as another candidate that received even more votes. That is, the 19% does not form a modicum of support in a partisan primary (even where a voter could vote for any candidate on the ballot regardless of party).
But the Top 2 primary does not qualify candidates for the general election on the basis of party affiliation (or independent status). There is no constitutional requirement that candidates qualify for the general election on the basis of their party status (or be disqualified in the case of losers in a partisan primary).
In Foster v. Love, a voter simply wanted to have a chance to vote on whether Billy Tauzin was chosen to represent him in Congress, on the date set by Congress for that choice to take place. If he had gone to a polling place he might have found it shuttered, or being used for some other purpose. Fast forward to 2008. That same voter may have simply wanted a chance to vote on whether Charlie Melancon was chosen to represent him in Congress, on the date set by Congress for that choice to take place. If he had gone to the polling place, he could have voted for president or senator, but that was mere coincidence and does not form an alternative to voting for a representative.
The problem with “top-two” is that the winnowing is too severe. Courts can’t “winnow” out candidates with substantial support. “Top-two” winnows out all candidates who don’t show, on the average, 32% support many months before the November election. But the U.S. Supreme Court has said that candidates with support of 5% or above cannot be kept off the general election ballot.
In 1968, the US Supreme Court put George Wallace on the general election ballot. In 1980, the US Supreme Court put John Anderson on the Ohio ballot. Yet Wallace was a Democrat and had been free to run for president in Democratic presidential primaries. Anderson was a Republican and he was free to run in Republican presidential primaries; in fact he had done so. But there is a constitutional right of access to the November ballot for all candidates who have substantial support, and who aren’t sore losers, and who meet the Constitutional qualifications. If Washington and California wanted to winnow out candidates who got less than 5% in the primary, they could do that. But Washington eliminates all candidates who are below 32% (on the average), and California threatens to do the same thing. 32% is way, way too severe.
In 1980, Ohio used a system of appointing its presidential electors based on votes for presidential slates in November. The slate could either be placed on the November ballot by a qualified party, including a newly qualified party, or qualify as an independent.
Ohio was not required to use such a system. They were not even required to hold a popular election. But once they had chosen that system, they were required to make it actually possible for new parties and independents to qualify for the ballot.
Anderson’s political registration in Illinois was irrelevant to his status in Ohio, and presidential preferential primaries are irrelevant as far as who was placed on the November ballot.
States are free to hold direct partisan primaries to nominate presidential electors (e.g. Alabama 1960, California 1912). I see no reason that these couldn’t be held on a winner-take-all slate basis (e.g. Taft electors v. Roosevelt electors or Kennedy electors vs. unpledged or Byrd electors). Or they could have direct partisan primaries to determine the presidential candidates, who would in turn name their associated elector slates.
Florida law permits the parties to hold direct primaries. A reasonable straightforward reading of the California Constitution would mean that they were required in California.
But a state need not hold partisan primaries, or predicate access to the general election on the basis of party affiliation. California does not use partisan elections for county offices, nor for all state offices.
It is each state’s decision to do so or not do so, and for which offices they hold partisan primaries or not. And a state may hold a non-partisan primary to winnow the field. The only constitutional constraint they would be under would be access to the primary ballot. And it laughable to consider the 60(?) signature requirement to run for Congress too high a barrier.
Since 1972, the State of Washington has excluded from the general election ballot for Superintendent of Public Instruction, candidates who have received 13.10%, 29.28%, 22.81%, 7.58%, 15.73%, 15.25%, 12.08%, 15.49%, 9.09%, and 8.98% of the vote. This was totally constitutional.
#13 Do you (dis)agree with my interpretation of the changes to the party registration? That is, voters may now “disclose a party preference”, and that a candidate’s party preference must match his registration, though a candidate may choose not to have that party preference shown on the ballot.
The practical effects will be:
(1) that candidates will now be permitted to have a preference for an unqualified party appear on the ballot, so long as they had disclosed that preference on their voter registration;
(2) it may be more difficult for qualified parties to maintain that status, since the 2% performance rule is effectively eliminated, and instead will have to meet the 1% registration rule. Currently the Libertarian party is slightly below the 1% threshold; and the P&F party is well below the limit.
(3) qualified parties will be able to have their endorsements (not nominations) included in the sample ballot sent to voters who had expressed a preference for that party.
(4) qualified parties will continue to have presidential preference primaries; and elect party officials.
Phil Sawyer Says:
February 21st, 2009 at 10:19 am
The bottom line is that a “top two†system that does not allow the nominees of all political parties to go on to the general election is a very terrible thing.
If the California voters are somehow tricked into voting in such a “top two†system (which I do not think will happen), then the smaller political parties – including the Republican Party in the year 2012 because that ship is sinking fast – will need to start working better together and form temporary coalition candidates that will oppose the Democratic Party candidates.
#16 Why is that a bad thing? The political parties will be allowed to make endorsements, and have that endorsement communicated to those voters who have disclosed a preference for the party.
Californians elect their county supervisors in June, why can’t they be expected to figure out who they want to represent them in Congress, the legislature, or state executive offices at that time.