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.

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?

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?

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?

“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 “fairness”—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).

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.

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.

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.

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.

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.