Proponents of the California ballot question to impose a “top-two” election system have been quoted in many mainstream news media organizations recently. These spokespeople repeat over and over that California’s state government leadership problems are caused by politicians who are too ideological. The advocates of “top-two” say that their election system would result in a different kind of candidate being put in office.
Ironically, however, the proponents never remind people that each of the last two governors of California was initially elected in their type of system. Governor Arnold Schwarzenegger was elected for the first time in 2003, in a special election at which all voters received the same ballot, with all candidates listed on the ballot. And previous Governor Gray Davis was elected for the first time in 1998, when California was using the “blanket primary”, another system in which all voters receive identical primary ballots, ballots that list all candidates for the office from all political parties.
Proponents of “top-two” seem to have succeeded in their desire to have “top-two” labeled as an “open primary”. Definitions in this area are hopelessly confused. Most proponents of “top-two” say it is legitimate for them to label “top-two” as an “open primary”, because they say that “open primary” means any system in which independents can vote in the primaries. However, it is already the case that independents in California may vote in the major party primaries in 2010.
NO need for any party hack caucuses, primaries and conventions.
Ballot access via EQUAL nominating petitions.
P.R. legislative bodies — Total Votes / Total Seats = EQUAL votes needed to win a seat using pre-election candidate rank order lists to transfer surplus / loser votes.
A.V. executive / judicial offices – vote for 1 or more (approved / acceptable choices) — highest win.
“Most proponents of “top-two†say it is legitimate for them to label “top-two†as an “open primaryâ€, because they say that “open primary†means any system in which independents can vote in the primaries.”
This ignores everyone that is a member of a Party other than the Political Duopoly or registered “Independent”/”non-partisan”.
Instead of “top-two”; California should instead adopt Non-Partisan IRV.
During California’s 2004 “top two” inititive campaign, as I recall, a state judge ordered Prop.62’s proponents not to call it an “open primary.” The Oregon Supreme Court issued a similar order there last year.
In 1991, Louisiana’s “top two” produced a gubernatorial runoff between a crook and an ex-leader of the Ku Klux Klan.* In 1995, the gubernatorial runoff featured a white conservative Republican and a black liberal Democrat (now-U. S. senator Mary Landrieu finished third).
* Both Edwin Edwards and David Duke later went to federal prison, and Edwards is still there.
The California court case in 2004 did indeed have the result of keeping the term “open primary” out of the voters pamphlet and off the ballot description of the initiative, prop. 62. The case was Vandermost v Shelley, Sacramento Superior Court #04-cs-1033.
#3 What about the 2003 Louisiana gubernatorial race?
Political parties only have to give notice 135 days prior to the June 2010 primary as to whether “declined to state” voters may voter in their primary. It is entirely to the whim of each party whether voters may vote in the primary. With the Democrats purging county committee members in SLO, participation by mere voters is a matter of conjecture at this time.
The terminological problem is at least as much about the word “primary” as it is about “open”. When used correctly, the term “primary” refers to an election in which a political party nominates its candidate for the general election. Unfortunately, the incorrect usage, referring to the first round of a top-two runoff, is extremely common. In California, it is even enshrined in the Elections Code, where the first round of top-two elections for county offices are called “primary elections”. This is in part because they occur on the same day as partisan primaries (proper use of the term) for state and federal offices.
#5: What about it?
#6: Do you think parties should let non-members serve as delegates to nominating conventions?
Personally, I think independents should be allowed to vote in party primaries, but that’s rightly up to each party– except in the states which force parties to let non-members into their primaries.
Besides, in California, a voter has until 15 days before the primary to register with a party.
What’s “SLO”?
“SLO” is an abbreviation for San Luis Obispo County, the county in which the Democratic Party expelled a county central committee member. There is no connection between that expulsion, and whether the Democratic Party would change its policy on letting independent voters vote in its primary. No Democratic Party official (state or local) is talking about excluding independents from the Democratic primary for public office.
#7, “primary” refers to a first election, not that somehow elections are first and foremost about political parties. Because most primaries are party primaries, the necessary modifier is often dropped.
#8 (re #5) do you think opponents to the Voter-Choice Primary, will bring up the 2003 Louisiana gubernatorial election?
Under the proposed system, voters will not have to game the system, deciding before each election which party’s primary they wish to participate in; or to hope that a party might let them vote; or be limited in voting in a single party’s primary up and down the ballot.
Voters in California already vote for some State officials; city, county, and other officials without regard to party. The political parties are simply unnecessary mediators of the free exercise of the right to vote.
#9 Any decision by the Democratic or other party as to whether DTS voters may participate will be made on an election-by-election basis, and will be made with the interest of the political party insiders in mind, and not the voters. The same type of decisions that went on in San Luis Obispo will go into determining whether or not a party conditionally permits independent voters to vote in their primary.
Democratic officials would be unlikely to discuss in public the “exclusion” of voters. They would characterize it as limiting party decisions to party members, ragardless whether the effect is the same.
The fact that you have to use the possessive “its” with regard to the primaries illustrates the fundamental difference. A party primary belongs to the party, and not the voters. A Voter-Choice primary would let all voters participate as a matter of constitutional right in the elections of their state and federal officers.
Attention clueless folks — PUBLIC primary elections are PUBLIC nominations for PUBLIC offices.
Sorry – party hacks (as PUBLIC Electors) are NOT independent empires in the PUBLIC nomination process.
PUBLIC nominations are quite different than internal clubby party hack stuff — picking party hack clubby officers, holding clubby party hack meetings, etc.
See the Eu opinion by the party hack Supremes in 1989.
#10: The direct primary election had its origins with the Democratic Party of Crawford County, Pennsylvania, in 1842. In the early 1900s, states began requiring parties to hold primaries to nominate their candidates.
About 100 years ago, the oxymoronic “nonpartisan primary” came into usage, about the time that municipalities started using nonpartisan (“top two”) elections. “Party primary” is actually redundant, but it’s necessary to add “party” to differentiate it from a “nonpartisan primary.”
#11: Again: in the event that a California party does not invite independents into its primary, the voter may register with the party as late as 15 days prior to the primary.
I believe that, for state and federal offices, political parties should be able to perform their basic function of officially nominating candidates; the party primary, to be sure, is the most democratic method of nomination.
When parties nominate by convention or caucus, of course, grassroots citizens can only vote directly in the general election.
I see that you’re now calling the “top two” the “Voter-Choice primary.”
Despite the fervent hopes of you and others, political parties are here to stay.
#14 The direct primary like the Australian ballot was intended to return control of the election of officers to the People.
The political parties were unable to stop the Australian ballot, but they have corrupted the process of being placed on that ballot.
Since most California voters vote by mail, they would first have to switch their party registration, or to request the party ballot be sent to them. And they would then still be restricted to voting for only nominees of that party for all offices.
Why shouldn’t you be able to exercise your 1st Amendment right of political association with “Democrats” with respect to your senator, with the “Republicans” with respect to your representative, and the “Greens” or “Libertarians” with respect to your governor?
The right to vote is an individual right, and should not depend on being a member of a party.
Political parties would have you believe that their basic functions are to organize the government, dispense jobs and other favors, and decide who you may vote for. They are simply unneeded for any of these functions. When the Australian ballot was introduced in South Australia, nomination required three persons: a nominee, a nominators, and a second-er.
Political organizations, parties, clubs, clans, or gangs are of course free to endorse or otherwise support candidates. There is simply no need for their having a formal role in placing candidates on the ballot or keeping other candidates off the ballot.
I made a mistake in nomenclature. The open primary legislation in California defines three times of offices:
(1) Voter-nomination offices
(2) Non-partisan offices.
(3) Partisan offices.
Jim Riley (#15) repeats the conventional wisdom about the direct primary, that it was a reform won to overcome boss rule in the parties. That view is now being challenged. See Alan Ware, The American Direct Primary: Party Institutionalization and Transformation in the North (Cambridge UP, 2002), which argues that at least some party leaders supported direct primaries even before the progressive era reformers did. Their motives were complex but included the idea that government control of the process at the state level (and at government expense) was preferable to control at the city and county level. Especially since nomination by primary election confers a degree of legitimacy not conferred by caucus and convention nominations.
Ware also argues that Riley is wrong about party opposition to the Australian ballot. Many party leaders also supported that reform, provided they could have a provision for voting a straight party ticket.
#15: I share your contempt for the barriers that the two major parties have erected to ballot access for independents and small party candidates. However, since you love the “top two” (or whatever you’re calling it now), I question your concern for independents and small parties, since the “top two” makes it nearly impossible for them to survive the first round of voting.
The Progressives promoted the direct primary because it was a more democratic nominating method than conventions or caucuses, and because they saw it as a way of reducing the power of special interests over the parties.
“[California voters] would then still be restricted to voting for only nominees of that party for all offices.”
Right– just as a citizen can only serve as a delegate to one party’s nominating convention in one election cycle.
As to your fourth paragraph: What Justice Scalia wrote about the blanket primary also applies to the “top two”: It “has simply moved the general election up one step in the process, at the expense of the parties’ ability to perform their basic function of choosing their own leaders” California Democratic Party v. Jones (2000). In the “top two,” a party can, of course, nominate/endorse candidates, but (1) other candidates from that party can still appear on the ballot, and (2) both or neither of the runoff candidates may be from that party.
Scalia also wrote that parties have “the freedom to identify the people who constitute the association, and to limit the association to those people only.”
Re your sixth paragraph: Scalia wrote that the founding of U. S. political parties was concomitant with the founding of the nation. Whether anyone likes it or not, parties are here to stay.
You certainly have the right to be an independent, but you DON’T have the right to force everyone else to behave like independents.
#16 The straight party vote is of course a corruption of the Australian ballot. When paper ballots were first used, they were simply sheets of paper on which a voter could write the name of his favored candidates. Later there was a court ruling in Massachusetts that said that printing the name of the candidate on the ballot, could include mechanical printing (as opposed to printing by hand). This led to newspapers printing ballots – which depending on the political leanings of the paper would let a voter cross off names of candidates he didn’t want to support, or simply reflect the endorsements of the paper. Political parties would also print ballots and distribute them, often using distinctively colored ballots, and sometimes trying to prevent distribution of ballots by competing parties.
The logical arrangement of a ballot would be to group all the candidates for a particular office. But ballots with a straight party option often are arranged in rows of candidates and columns of parties, or vice versa. In effect, they look like the old party-printed ballots stitched together.
Political parties now try to keep challenging parties off the ballot, as well as challenging candidates. The New York governor vetoed the Australian ballot legislation, saying that it would eliminate the option of a voter to self-nominate, that is, nominate who the individual wanted to vote for. The counter-argument to veto was that nomination would be so trivial that this was not a real barrier.
But the straight party option meant that you had to have standards for political parties nominating entire slates of candidates, and also encouraged parties to support barriers to individual candidates.
Compare the ballot access standards under Washington’s Top 2 law or California’s proposed Top 2 law to laws in most other States.
#17 Since we are citing Jones
“Respondents could protect them all by resorting to a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot—which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee. Under a nonpartisan blanket primary, a State may ensure more choice, greater participation, increased “privacy,†and a sense of “fairnessâ€â€”all without severely burdening a political party’s First Amendment right of association.”
Under the law in California, political parties would continue to have partisan primaries to elect their own leaders, they would be free to support or endorse political candidates for public office, simply not nominate in any manner which is recognized (nor mandated) by the State. The State would even distribute sample ballots for the parties to voters who had disclosed a party preference.
It is true that in California, both candidates in the general election may prefer the same party, but how is this a problem? Surely they would have different positions on issues, or different approaches to governance, just as two candidates in a primary runoff might (BTW, isn’t 2nd primary the real oxymoron).
#19: When Justice Scalia wrote “choose their own leaders,” he meant the parties’ nominees in the general election as well as the party officials.
Interesting that Scalia, who wrote your italicized quote, dissented in the March 2008 ruling on Washington state’s “top two,” which held that the “top two” is constitutional on its face.
Yes, in the “top two,” a party still has the First Amendment right to nominate candidates, though the state does not recognize such nominations: other candidates from that party can run in the popular election, and there’s no assurance that the party will have a candidate in the final, deciding election.
In the “top two,” a party could even nominate by primary, which is very unlikely, due to the expense.
The two final candidates both being from the same party is obviously not a problem to you, since you would just as soon get rid of political parties. But I consider it a problem because (1) that party is split in the deciding election, and (2) the other parties’ faithful voters are effectively disenfranchised and must choose between the “lesser of the evils.”
Two runoff candidates from the same party would not necessarily have different positions or approaches.
The difference is that the two candidates in a party’s runoff primary are seeking that party’s nomination, whereas the runoff in the “top two” determines who is elected to office.
Yes, “second primary” is an oxymoron, just as “first primary” is redundant, since “primary” comes from a word meaning “first.”
You’ve never answered this question: Why should the voters be limited to just two choices in the final, deciding election?
In the third paragraph in #20, I should have said “general election” instead of “popular election.”
I consider the two state-recognized rounds of the “top two” to be the general election and the runoff general election.
Louisiana, of course, does not allow write-ins in its “top two,” whereas Washington state allows write-ins in both rounds.
Does the California “top two” proposal allow for write-ins in either or both rounds?
#19. Justice Scalia was writing on behalf of the entire court (or at least its majority). In the Washington case, you will notice that Justice Thomas uses “we” when referring to what Scalia had written with respect to the non-partisan Top 2 (or whatever number) primary.
I have no problem if the two candidates with the most support in the primary happen to have a preference for the same political party. What if they both favor reducing taxes, or some other policy? Should there be a requirement that candidates must disagree on certain issues?
A political party does not have a First Amendment right to name candidates to be placed on the election ballot. They have a First Amendment right to support candidates for political office, through endorsements, financial support, campaign assistance, etc. IOW, they have the same rights as you or me.
The reason a political party might not use a primary is that they would have no way to enforce the result – the purpose of a primary is not to choose a candidate but rather to exclude candidates, and have the State impose the decision of a private organization on the voters.
If a candidate is among the Top 2 candidates in the primary, they can hardly be considered to be “evil” by the collective judgment of the voters, no matter what an individual voter may think.
A party as a corporate entity need not be split merely because the two candidates on the ballot have disclosed a preference for that party. And it would be quite unusual if all ordinary voters affiliated with a party supported the nominee of their party (not withstanding what Mississippi law says).
In the late 18th century, some States, particularly Massachusetts, required majority election. But rather than having a runoff among the Top 2, they simply held a new election or trial a month or two later. Sometimes, there would 7 or 8 trials, if there were obstinate voters or candidates. I do not favor such a system.
So if you wanted a majority election, then the best way to do that is to limit the final deciding election to two candidates. Remember, the purpose of that final election is for the voters collectively to decide who their governor, legislator (or other official) will be. It is not merely to express some opinion about which of dozens of candidates should ultimately be chosen.
I suppose a State could set up some sort of regulated trial system, where no new candidates could join, and candidates could be gradually eliminated. What would you propose?
#21
Voters in California may always write in a candidate’s name, but only votes for a declared write-in candidate are counted.
Washington does not require a declaration, but does require a write-in nominee to get 1% of the vote to qualify for the general election. California requires a declaration but has no minimum, so long as a candidate finishes in the Top 2.
A write-in declaration in California also requires a petition (100 for a statewide race, lesser amounts for others) and is not possible for the general (Top 2) election.
The various parts of the California law are severable, so that if the First Amendment right of a candidate to disclose his party preference is deemed to be inferior to the First Amendment right of a political party not to have its party name associated with that candidate, then the party preference disclosure could be omitted.
Ordinarily that would have been possible in Washington as well, but the Washington statute (re)defined a partisan election as one in which a candidate may indicate his party preference. Thus the essential feature of a Washington partisan election is that of the candidate party preference, rather than the fact that there are not State-recognized party nominations and voters were free to vote for whom they wish.
In California, the essential feature is voter-nomination, with disclosure of party preference by the candidates secondary.