A poll released on the evening of May 19, taken by the Public Policy Institute of California, shows a big lead for Proposition 14, the top-two ballot measure. The poll shows 60% support the measure, 27% oppose it, and 13% are undecided.
A poll in March showed 56% support for the measure. The gain for the measure is undoubtedly due to the heavy advertising for the measure, especially in radio ads. There has been no advertising against the measure.
The fundamental reason for the measure’s strength in polls is its wording. The ballot says in large type, “Proposition 14. ELECTIONS. INCREASES RIGHT TO PARTICIPATE IN PRIMARY ELECTIONS.” Then, in smaller type, it says, “Changes the primary election process for congressional, statewide, and legislative races. Allows all voters to choose any candidate regardless of the candidate’s or voter’s political party preference. Ensures that the two candidates receiving the greatest number of votes will appear on the general election ballot regardless of party preference. Fiscal impact: No significant net change in state and local government costs to administer elections.”
Assuming the measure passes, those who favor having more than just Democrats and Republicans on the November ballot will resort to the courts. The U.S. Supreme Court said in Munro v Socialist Workers Party, 479 U.S. 189, “We are unpersuaded, however, that the differences between the two mechanisms (a petition to get on the November ballot, versus polling a certain share of the vote in a preliminary election) are of constitutional dimension.” This means that the U.S. Supreme Court thinks that a prior vote before the general election, as a condition of appearing on the general election ballot, is subject to the same precedents that apply to petition hurdles to the November ballot.
Those who attempt to rebut that conclusion invariably say that the U.S. Supreme Court’s ballot access precedents do not apply for an election in which parties do not have nominees. That notion is incorrect. The early ballot access victories in the U.S. Supreme Court were not based on freedom of association for political parties. The first three full-opinion ballot access victories in the U.S. Supreme Court were based on voting rights, and the rights of candidates, not on the rights of political parties. Two of the first three ballot access victories did not have any political party plaintiffs. They were Williams v Rhodes, and Ogilvie v Moore; the plaintiffs were voters and candidates. These decisions were issued in 1968 and 1969. At that time, the U.S. Supreme Court had never ruled that the Freedom of Association portion of the First Amendment pertains to political parties. It is true that in 1935, in Grovey v Townsend, the U.S. Supreme Court refused to overturn a Texas Supreme Court ruling that said the Democratic Party is free to limit membership to whites, but that decision does not mention the First Amendment, and furthermore that decision was overturned in 1944 in Smith v Allbright.
California voters have restricted the franchise in the past. In May 1879, the voters approved a new state Constitution that said, “No native of China shall ever exercise the franchise in this state.” That passed 54%-46%.
Richard,
Would a legal challenge be bolstered by the testimony of individuals who say they voted in favor of Prop 14 because of the ballot wording? If so, how do we go about finding such folks. Of course, we could plant a few moles but it would be embarrassing to have them exposed during a trial. 🙂
June
Did you really just compare the open primary to racism? I think that’s a sign of panic, because it clearly has no basis in reality.
I believe the real exclusion is when the state provides the funding and infrastructure for a private group (such as a political party) to hold an event (such as a primary election) from which other Californians are excluded — especially when the state provides the legal muscle to enforce that exclusion.
That’s a BIG lead. The wording is SO biased.
#2: Richard’s post didn’t “compare the open primary to racism”, because it didn’t talk about open primaries at all.
Proposition 14 is not an open primary. An open primary is a system where all parties’ separate primaries are held simultaneously and every voter can choose at the polling place in which party’s primary he or she wishes to participate.
Proposition 14 is a particularly pernicious blanket primary. A blanket primary in general is a system where all candidates of all parties appear on a single primary ballot. Proposition 14 is particularly pernicious because its primary serves only to prevent all but two candidates from participating in a much later, separate election in which the real decision is made. Unlike non-partisan elections and some of the run-off systems used in the South, the initial election can’t decide anything. Further, the primary is five months or more before the general election, unlike the similar top two systems used in Louisiana and Washington where the primary and general elections were only separated by a month or two (so that the campaigns overlapped, and those excluded from the general election ballot didn’t necessarily have their issues excluded from its campaign).
DOOM for the party hacks — the quicker the better — especially more and more of the gerrymander powermad MONSTERS in the CA legislature — as evil corrupt as Stalin and Hitler.
What part of the dead U.S.A. Constitution says that X percent of the total voters have a constitutional right to have *their* party hack candidate on general election ballots ??? Keep looking.
See the Washington top 2 opinion by the Supremes.
Pass Prop 14.
Pressure for P.R. and App.V. = REAL reforms.
[General] Election ballot access via EQUAL nominating petitions.
NO primaries are needed.
Political *science* moves on — regardless of STONE AGE party hack thinking.
The Washington top two opinion by the US Supreme Court has footnote 11, saying the Court is not deciding the ballot access issue.
May Maldonado rot in Hell for all time with little Devils sticking pitchforks in his ass.
Don’t be deceived by this Proposition California.
It’s completely deceptive, just like our President.
I urge you for the sake of our country to vote NO.
We do not want to end up voting for two Democrats and no Republican.
Don’t just listen to false advertising people…DO YOUR OWN RESEARCH!!
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It’s time to let Lieutenant Governor Maldonado off the hook. Proposition 14 is the baby of Governor Arnold Schwarzenegger. When the legislature first considered passing bills to put Proposition 14 on the ballot in January 2009, in exchange for Maldonado’s vote for the budget, that idea came from the Governor’s office, not Maldonado’s office. A reporter told this to me. It wasn’t Maldonado’s idea; it was the Governor’s idea. The Governor has a grudge because in 2004 Proposition 62, that year’s top-two measure, was the only ballot measure in which his recommendation was defeated by the voters. All the other ballot measures in November 2004 went his way.
I think it most unfair to accuse Richard of comparing open primaries to racism, as Doug Johnson implicitly alleges in his comment. The significance of the decision in Grovey v. Townsend was and contiues to be that the U.S. Supreme Court upheld a Texas court ruling that political parties are private associations and, hence, free to restrict their membership, regardless of the criterion on which the limitation is based. Similarly, in overturning Grovey, the U.S. Supreme Court rejected that reasoning as a consequence of viewing political parties and some of the purposes they serve to be quasi-governmental and, thus, not free to set such limitations. That contrast, not the fact that substantive conflict addressed in both cases dealt with racial discrimination, is the operative point that Richard makes in his argument. The focus is on the nature of parties as political entities, not the racist motives behind the white primary. . .
#2, then why don’t you support legislation that could make party primaries a PRIVATE affair?
Prop 14’s main goal is to keep smaller parties off the general election ballot. That is obviously anti-democratic.
#6 Federal District Judge Zilly had heard the ballot access arguments before he had made his “extraordinary and precipitous nullification of the will of the people” in issuing his injunction based on the facial challenge.
Since he had never ruled on the ballot access arguments, it remained a live issue.
Federal District Judge Coughenour (who replaced Judge Zilly on the case) in his August 20, 2009 order dismissed the ballot access claims put forward by the political parties in Washington. It is true that his decision may be appealed, but you may have given an impression that these issues have not been considered by a federal court.
PS
Williams v. Rhodes was combined with Socialist Labor Party v. Rhodes, and the American Independent Party was an appellant in Williams v. Rhodes.
#2 I don’t understand the connection between Richard Winger’s last paragraph and anything else in his article. It might have even been an inadvertent cut and paste error.
#4 Did you object to the ballot title “Open Presidential Primary” in 1972?
In 1915 when California considered switching to a nonpartisan primary for state and legislative elections, the primary was in August. As recently as 2004 the primary was in March. SB 6 doesn’t change the date of the primaries. It does not prevent them from being changed.
The plaintiffs in Williams v Rhodes were: Glen A. Williams, Louis F. Molnar, Richard Kochensparger, Ghernie Z. Robertson, Truman C. Webb, Suzanne Peterson, Thomas F. Lavery Jr, Marcus O. St. John, Anthony P. Capatosto, Howard H. Jenkins, Dixie Anne Krumpek, George C. Wallace, and Ohio Wallace for President Committee. The American Independent Party was not a plaintiff. So comment #13 is factually incorrect.
As to comment #15, California voted on a ballot measure in June 1972, Proposition 4, to provide that all candidates for president in the presidential primary should be on automatically, if they are discussed in the news media. I supported that measure, so I had no reason to complain that its ballot label was “Open Presidential Primary. The measure hugely helped minor parties and their presidential candidates, because it relieved them of the need to complete a burdensome petition. But, as a matter of proper use of language, the title was and is faulty.
It will be an absolute travesty if California– our most populous state– injects itself with this “top two open primary” virus, because the virus will then likely spread to other states.
Let’s not forget that only two states– Louisiana and Washington– use the “top two” to elect all of their state officials. And only Washington uses it to elect its congressional delegation.
#2: “… the state provides the funding and infrastructure for a private group (such as a political party) to hold an event (such as a primary election) from which other Californians are excluded…”
In 1995, a federal appeals court said that, when the state mandates that parties hold primaries, the parties cannot be required to pay for those primaries (Republican Party of Arkansas v. Faulkner County).
In state and congressional elections, California independents have their choice of either the Republican or the Democratic primary. Furthermore, a voter has until 15 days before the primaries to change his registration.
Why should someone who steadfastly refuses to register with a party be allowed to participate in that party’s candidate-selection process– unless the party invites him to do so?
#16 Williams v Rhodes and Socialist Labor Party v Rhodes were consolidated, and the Socialist Labor Party was a prevailing party, just as much as the individuals associated with the American Independent Party. And why did Justice Black write that the Ohio American Independent Party was an appellant, if it was a not.
#17 Why should voters be denied the right to politically associate in support of any candidate?
What if a voter wishes to support Jerry Brown and Carly Fiorina? Surely a voter in the USA should be permitted to vote for a male for governor, and a female for senator.
About comment #18, the US Supreme Court makes lots of factual errors in its decisions. In Jenness v Fortson, the decision says signatures don’t need to be notarized, but they did need to be notarized at the time in Georgia, and they still do. In Williams v Rhodes, Justice Black said things that were factually incorrect, including not only that the AIP was a plaintiff, but that Ohio made certain arguments that it really didn’t make. I have the briefs and I have the transcript of the oral argument. The Douglas concurrence in Williams v Rhodes is also factually wrong; Ohio had insisted that all those problems Douglas talked about were not problems.
#20 The party hack Supremes are basically irrational / mindless in making split hairs legal classifications — regardless of any *facts* and/or the *law* in any given case.
Where is any mention of Brown v. Bd of Ed (1954) in Williams v. Rhodes (1968) — in Jenness v. Fortson, etc. ???
P.R. and nonpartisan App.V. — to END the nonstop EVIL in Dumb City.
#20 Are going to claim that the US Supreme Court did not consolidate Williams v Rhodes and Socialist Labor Party v Rhodes. What do “543” and “544” refer to in the various opinions?
Did Jerry Gordon participate in the oral arguments? If so, in what role?
#19: Why should the members of political parties be denied the ability to associate to officially nominate candidates for office?
“Surely a voter in the USA should be permitted to vote for a male for governor, and a female for senator.”
If that’s the standard: A voter could vote in the Democratic primary for Jerry Brown and Barbara Boxer, or in the Republican primary for Steve Poizner and Carly Fiorina.
And there will be at least one male candidate for governor and one female candidate for senator on the November general election ballot.
Prop. 14, of course, would move the general election up to the first step in the process, at the expense of the parties’ ability to officially nominate candidates.
Still waiting for any answer —
What part of the dead U.S.A. Constitution says that X percent of the total voters [PUBLIC Electors – in a party hack subgroup] have a constitutional *right* to have *their* party hack candidates listed on general election ballots ???
Keep looking to solve for X — since Williams v. Rhodes in 1968 at least.
In response to comment #22, my post just talked about the ballot access cases that won in the U.S. Supreme Court in 1968 and 1969. I don’t consider Socialist Labor Party v Rhodes to have been a winning lawsuit. The U.S. Supreme Court, as well as the lower court, refused to put the Socialist Labor Party on the ballot. And the Ohio legislature’s response in 1969 indicates the Ohio legislature didn’t perceive the SLP to have the case either, because the 1969 legislature passed a new law that was almost as hostile to the SLP as the pre-1969 law had been. The SLP didn’t actually win an Ohio ballot access until its 1970 case, when the 3-judge court put the SLP on the 1970 ballot. The 1970 case was the first time in the SLP’s history (which was a 90-year old history even back then) that a court had ordered it put on a government-printed ballot.
#25 So as a result of Williams v Rhodes the American Independent Party appeared on the 1968 November ballot?
Meanwhile as a result of (544), the SLP did not. But that was because the Supreme Court made the decision that they had sought that change too late.