1. Tobin misunderstands the fundamental principle behind Proposition 14 – that the People collectively should choose their state officers and representatives.

   Under Proposition 14, Tobin could still run for Secretary of State, she would have the choice of having her party preference appear on the ballot or having a blank. Political parties would be free to support her and indicate any endorsement on the sample ballot distributed with voters pamphlet.

   Tobin would be free to campaign on her own merits, and not simply as the Libertarian nominee.

2. The principle that the voters collectively choose their state officers and representatives is already policy in all 50 states and in other nations that have relatively free elections. The people do this on election day. In the United States, election day is in November of even-numbered years, according to legislation passed by Congress in the 19th century.

3. I am surprised by your comment. In fact that policy has been co-oped for a very long time. In NY I do not have the option to decide who I want to vote for in November. NY is a closed primary state. Has very restrictive laws to get on the ballot or to get a party ballot line. As an elected Independence Party member running for his fourth term, I can not go on the street for my petition signatures. My state rules require me to hire a caller, only call party members, get their approval before I can get their signature. This puts a damper on your ‘FREE’.

4. It is worth noting that we have many, many two candidate run-offs in local elections every year in California — often with two members of one party squaring off. Voters making a judgment about the top two vote getter should ask themselves whether or not they think our local elections procedures provide voice to a wide range of perspectives, and result in effective governance systems.

5. #2 At the time of the 1872 law, congressional elections were conducted over a 15-18 month period, with some being held almost a year before the start of the term, and others being held after the start of the term (though usually before the opening session). The uniform congressional election date was not fully effective in all states until 1960.

   At that time there were not government-printed ballots (the 1872 law required paper ballots, but this in effect outlawing voting by voice in congressional elections). Voters would simply write the name of their preferred candidate on a sheet of paper, or alternatively vote a ballot that had been prepared by a political party or newspaper, with suitable editing. There were no formal nominations under this system, since any voter could vote for any candidate.

   After introduction of the Australian ballot, beginning in 1888 and being universal by about 1920, the government prepared ballots with “all” candidate names. But this system required that the government determine who the candidates were, so that they could print their name on the ballot. When parties were given the authority to have their nominee appear on the ballot, the government then had to determine which parties it recognized, and who was qualified to act on behalf of each party.

   States then required parties to nominate by primary. At first these were seen as private affairs, but since the 1944 Smith v. Allwright decision these have been recognized as being an integral part of the election process. This view was reiterated in Tashjian where the Supreme Court overruled a lower court decision that had said that constitutional requirements for voter qualification in congressional elections were not applicable to congressional primaries. The Supreme Court said that they did. Congress has regulated financing of congressional primary elections as part of an overall regulatory scheme.

   In summary, it is quite lawful for states to hold preliminary elections before November, so long as the final choice is made in November.

   Congress could require Top 2 Open Primaries be used for congressional elections, or could formally set or restrict the time of primary elections. They could also outlaw Top 2 Open Primaries or primaries altogether.

   It is a political question for Congress to decide. In the absence of congressional action, it is up to each state.

6. #4: The great majority of US municipalities have nonpartisan “top two” elections. However, only two states– Louisiana and Washington– use the “top two open primary” to elect all of their state officials. And only Washington, which first used the “top two” in 2008, uses it for its congressional elections. The Washington “top two” is facing ongoing litigation, including a trial in US district court next October.

   The “top two open primary” is fine for local elections, since (1) local officials are concerned with providing services, rather than with policy issues, and (2) the national parties almost never get involved in local elections.

   The parties don’t seem to differ on fixing potholes, collecting trash, or performing autopsies.

7. #5: “There were no formal nominations [before there were government-printed ballots]…”

   The parties in many places held conventions and caucuses to choose their candidates. In 1842, when the convention system became unwieldy for the Democrats of Crawford County, PA, the party began using “primary meetings.” This featured secret balloting by party members and was the beginning of the direct primary election.

   The party now called the Democratic Party began nominating by national convention in 1832, when it renominated President Andrew Jackson. Prior to that, presidential candidates had been nominated by the party caucuses in the US House, by state legislatures, and by mass meetings.

   “After introduction of the Australian [state-printed, secret] ballot, beginning in 1888 and being universal by about 1920…”

   Louisville, KY, was first to use the Australian ballot in 1880. By 1892, it was required by 3/4 of the states containing 72% of the people. By 1896, after its adoption by New York, the Australian ballot was used by 9/10 of the states with 92% of the people.

   “… since the 1944 Smith v. Allwright decision [party primaries] have been recognized as being an integral part of the election process.”

   The US Supreme Court recognized that fact in 1941 in U. S. v. Classic. This ruling was prompted by a vote fraud case in the Democratic primary in a New Orleans U. S. House district (the Democratic primary was then tantamount to election).

   Louisiana’s “top two” (“open primary”), incidentally, is part of the residue of that old one-party (truly NO-PARTY) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary.

   “… it is quite lawful for states to hold preliminary elections before November, so long as the final choice is made in November.”

   From circa 1998 until 2006, Louisiana held the first round of its “open primary” for Congress on the first Tuesday in November, with the runoff in December if necessary. A series of federal court rulings have effectively said that that November ballot for Congress cannot be limited to just two candidates.

   Thus the Washington “top two” and California’s Prop. 14 (“top two open primary”), as applied to congressional elections, are almost certainly unconstitutional.

   “In the absence of congressional action, it is up to each state.”

   Each state, of course, must abide by court precedents.

8. “Tobin misunderstands the fundamental principle behind Proposition 14 – that the People collectively should choose their state officers and representatives”

   The People already choose them. Why is it such an imperative to limit The People to two choices on the Novevember ballot?

   “Political parties would be free to support her and indicate any endorsement on the sample ballot distributed with voters pamphlet.”

   Political parties and the 80% of California’s registered voters who are in a politcal party already have the right to nominate (not endorse, NOMINATE) candidates for the general election in November. Anyone can “endorse” a candidate: The Teamsters, the NRA, the old guys at the local diner who sit around and talk politics, the bridge club, the crazy aunt living in the basement.

   In the very likely event that Tobin didn’t make into the top two, her race would be over in June. This is not the case in the current system.

9. Oops,I forgot. Independents also can vote in the Democratic, Republican, and AIP primaries. So it’s more like 100% of registered voters.

10. I’m not sure I understand Steve’s distinction between “policy issues” and “services”. Land use — the most important part of local jurisdictions’ purview, in my opinion — is certainly not a service, and I suspect it would be quickly ‘partisanized’ were local primaries controlled by parties. Are local taxes “policy” or “services”? And anyone who doesn’t think school districts make education policy hasn’t been to a school board meeting in a while. As for the involvement of national parties, how involved are national parties in state legislative elections? Not at all, in the Assembly and Senate districts where I live…. And what difference does national party involvement make anyway, if one’s argument is a principled one regarding ballot access?

11. #9: The American Independent Party recently withdrew independents’ eligibility to vote in AIP primaries.

    #10: Are you advocating party primaries for local elections?

    Of course, in the “top two open primary,” each party may endorse//nominate a candidate(s), but a party is not assured of having a candidate in the final popular election (on the other hand, the two final candidates may be from the same party).

    There have been instances in Louisiana’s “open primary” of the national party and the state party backing opposing candidates. This happened with the Republicans in the 1991 governor’s race, and neither candidate made the runoff.

    It’s no accident that only two states use the “top two open primary” to elect all of their state officials. Washington state started using the “top two” in 2008, and it’s the only state that uses it for its congressional elections.

12. ANTI-Democracy minority rule gerrymanders de facto control ALL in the U.S.A. at the moment — since 4 July 1776.

    A plurality of the votes in a bare majority of the gerrymander districts for one party control —

    = about 30 percent inderect MINORITY RULE by party hack extremists in the gerrymander U.S.A. House of Reps, ALL 99 houses in the 50 State legislatures and many, many local govt regimes.

    = about 12 percent indirect MINORITY RULE in the gerrymander U.S.A. Senate — due to many below average small States.

    Again – Nebraska has a NONPARTISAN ONE HOUSE legislature with a top 2 NONPARTISAN primary since about 1936 — and manages to survive.

    See the Texas White Primary cases in 1928-1932 in SCOTUS.

    Primaries are PUBLIC nominations for PUBLIC officies by PUBLIC Electors — and NOT some sort of clubby meeting in a backyard treehouse.

    P.R. and A.V. NOW. — NO EVIL party hack extremist MORON primaries are needed.

13. #7 In 1842, Pennsylvania Democrats held primary meetings in each township. This “first” meeting chose delegates to the county convention. At the county convention, delegates would choose the party’s candidates for office.

    Crawford County Democrats held such a set of township primary meetings in June 1842, but when the county convention met, they could not reach a decision as to who was nominated including allegations that there were more votes cast than delegates, and that some delegates had not followed the instructions of their township party.

    The Whigs suggest that no party nominate candidates, but the Democrats later organized a mass meeting in the county seat, where they agreed to a plan where Democrats at township primary meetings would cast ballots directly for candidates, and then the totals from the entire county would be tabulated to determine the nominees.

    This system was not mandatory and some townships did not participate, though most would-be nominees gave assurances that they would respect the decision of the primary meeting participants.

    In 1850, Crawford County Democrats abandoned the system going back to indirect nominating conventions.

    It should be remembered that the whole point of the exercise was to deny Whigs and independent voters from actually having any influence in the election.

    While the Crawford County Democrats had the right idea in using direct election of candidates, they got it wrong by restricting participation to partisans only.

    Under Proposition 14 all California voters will be able to participate in the election of their state officers, congressmen, and legislators, just as they now do for county and city officials.

    Political parties will be free to organize meetings like those held by Crawford County Democrats in 1842 to endorse candidates. California will print these endorsements on a sample ballot that is distributed with the voters pamphlet to all voters.

    Given that about half of California voters are permanent by-mail voters, it would be expected that many will consult these sample ballots as they complete their ballot at their desks or kitchen table. At the poll voters will likely consult the sample ballot when deciding who to vote for.

14. #7 Louisville, Kentucky adopted the Australian ballot on February 24, 1888. At that time, Kentucky still used voice voting for state elections (the 1872 federal law requiring paper ballots only applied to congressional elections). Thus the Louisville law can be seen as having two purposes, instituting paper ballots, and having those ballots provided by the government.

    By 1917, only Georgia and South Carolina did not have any form of the Australian ballot. But in other states, application was not universal (eg only one county in North Carolina, larger counties in Tennessee). In other cases, it was not really a complete version, as a few states also permitted use of party ballots, or simply used the party ballots.

    The promise of the Australian ballot was soon corrupted by the political parties, as they sought to limit ballot access to party nominees. While party primaries sought to curb the party bosses from designating who was on the ballot, it still restricted voters choice in who they may vote for.

    And we can see the harm of party primaries, such as in Ohio where the Secretary of State requires inclusion of forms that threaten felony prosecution if voters lie about their fealty to the party ideology; in Tennessee where the Democratic Party set aside the result of a primary election on a claim that “Republicans” had voted in the primary; in Mississippi where a federal judge orders that photo IDs provided to voters to prove their party membership; and in North Carolina, where the so-called Department of Justice has ordered that elections be organized so that a party that represents only 75% of voters can effectively choose who is elected at the general election.

    Proposition 14 would restore the promise of the Australian ballot. All candidates names would be placed on the ballot. Qualification would be in the name of the individual candidate, and all California voters would be permitted to exercise their franchise in decide who their government officials and legislators are. The first stage (the Top 2 Open Primary) would reduce the field to the two candidates most favored by the voters. The general election in November would decide whom was elected.

    Political parties would be free to recruit candidates, support candidates financially, etc. They would simply not be allowed to decide who you may not vote for.

15. #7 Courts have ruled that when the state structures their system of election around party nominations and independent nominations to a general election, that they must provide reasonable access to the general election, because of equal protection.

    Equal protection does mean that candidates have an equal chance of winning an election, but simply that they have an equal opportunity to participate in the electoral process.

    While some of the legal briefs in these cases may have noted the federal uniform congressional election date, the court opinions have not. Some of the cases were actually about state elections such as for governor. There is nothing illegal about Mississippi conducting its state and legislative elections on a date other than designated for Congress.

    There have been two cases that were directly related to the date of congressional elections. The most noteworthy was Foster v Love which was about the date of Louisiana’s election for congressional elections. Louisiana held its election in October, and if a candidate received a majority, he was elected. Only runoffs were conducted on the first Tuesday after the first Monday in November.

    During oral arguments. Supreme Court justices asked what would happen if Louisiana simply held the general election with one candidate on the ballot, or permitted write-ins, and there was no clear response. In their decision, it was the fact that Louisiana was actually giving candidates to winning candidates in October, and not even opening polling places in November that was decisive.

    2 U.S.C. § 7 simply defines the first Tuesday after the first Monday in November as the “day for the election … of Representatives”

    Washington held its election for representatives on that date in 2008. None of the elections were contested in the House of Representatives on grounds that the election was conducted on a date other than that set by Congress.

16. #8 All the voters should be able to choose from among all candidates.

    California’s election schedule is not ideal. But Proposition 14 does not change the date of the primary.

    As recently as 2004, the primary was in March. California could change to August with a relatively simple statute change (the complexity is because of all the related filing deadlines).

    Under the current system in California for electing the Superintendent of Public Instruction, if a candidate does not finish in the Top 2, or if the winner receives a majority, their election is over in June.

    Why should it matter if Tobin is running for Secretary of State or Superintendent of Public Instruction? Is it because it is important to have a partisan oversight of the State’s elections?

17. # 16 Where is that Model Election Law — for the party hacks in the States to enact ???

    — with ALL the deadlines in election law stuff.

18. List and find open houses on onlyopenhouses.com

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