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National Public Radio Station in Fresno Explores Effects of California's Top-two Law on Minor Parties

Published on November 30, 2012, by in General.

The National Public Radio Station in Fresno, California, here explores the effect of California’s Proposition 14 (the top-two open primary) on California’s minor parties. Thanks to Mike Feinstein for the link.

10 Responses

  1. It looks like the voters in CA need a new Proposition to change the way parties are qualified. The current system was outmoded with Proposition 14.

  2. Slam In A Y-Trap

    Repealing prop 14/88 would be a good one.

  3. Slam In A Y-Trap

    Feinstein says he thinks that the courts will overturn Prop 14 and related laws for presenting what he calls “unconstitutionally high barriers to participation in the general election.”

    Let’s hope he’s right. Hopefully it would be the US Supreme Court so no other state can ever do this.

  4. Slam In A Y-Trap

    I wonder if a repeal proposition would pass now that people have seen what a con game this new system is? I am cautiously optimistic it would.

  5. Jim Riley

    Secretary of State Debra Bowen is either incompetent and/or is deliberately sabotaging Top 2.

    California has always recognized the right of voters to affiliate with non-qualified parties, and differentiated those voters from Decline To State voters. The system by which parties become qualified is based on voters being able to register with non-qualified parties.

    When a voter registered a party affiliation it was aspirational. It literally meant that the voter intended to affiliate with a party at the next primary (ie vote in their primary). If a voter registers as a Democrat or Republican, it is not a pledge to name their dog, Barack, or their cat, Mitt. It is not a pledge to donate money or plant a yard sign for their party, or even vote for the candidates of the party in the general election. It simply means that they intend to vote in the primary of that party.

    Even someone who is registered with the Democratic Party is not guaranteed to have a primary, if registration drops below the abandonment level (Americans Elect is below this threshold).

    If a voter had expressed their intent to affiliate with the Americans Elect, Constitution, Justice, We Like Women, Coffee, or Reform party at the next primary, and that party did not hold a primary (as happened in 2012), then by statute, they could request the (presidential) primary ballot of a party that was holding a primary and who permitted such voters to participate in their primary (in 2012 the Democratic and American Independent parties extended such an invitation).

    This did not mean they were abandoning the Constitution or justice or reform, or had stopped liking women, or drinking coffee. It did not mean that they no longer had a party preference. It simply meant that their preferred party was not having a primary, and another party had extended an invitation for them to vote, and they accepted that invitation. Just because the many voters who had Declined To State their affiliation, or had No Party Preference had the same privilege, does not change the status of the voters who do have a preference for a (non-qualified) party.

    California’s instructions for the federal voter registration card recognizes the distinction between Decline To State voters and those who affiliate with non-qualified parties. Prior to the June 2010 primary at which Proposition 14 was approved, the Secretary of State sent an advisory to county election officials specifically making the distinction. The pamphlet for county election officials used to train poll workers makes the distinction.

    Proposition 14 which amended the California Constitution did not define “party preference”, but its preamble expressed the legislative intent of the People in amending their constitution: (1) it was the intent that Top 2 comply with the SCOTUS decision in the Washington Top 2 case; (2) that SB 6 was the implementing legislation; (3) that existing party affiliations on voter registration were to be converted to a party preference.

    SB 6 added Elections Code 2151(d) which defines the process by which party affiliations were converted to party preferences on January 1, 2011 when Propostion 14 took effect. Existing Decline To State voters were converted to No Party Preference. All other voters who had expressed a party affiliation (ie had not Declined To State, but who had explicitly indicated what it was) were converted to a Party Preference for that party.

    There is no indication that this conversion was not carried out in the manner set out in statute.

    Clearly the party preference of a voter is what they indicated on their affidavit of voter registration, and that preference need not be for a qualified party.

    Proposition 14 did not define the party preference of a candidate for a voter-nominated office, but SB 6 did. It said the party preference of a candidate was what they had indicated on their affidavit of voter registration. This is reinforced by Elections Code 300.5 which says that the party affiliation of a voter or candidate for a voter-nominated office is that which was disclosed on their affidavit of voter registration.

    When Washington AG Rob McKenna was arguing the Washington Top 2 case before the Supreme Court, he successfully made the case that a candidate’s party preference was an expression of personal political belief and did not indicate support or endorsement by the party which was preferred. On remand, the district court and 9th Circuit ruled that voters would not be confused by the two.

    Expression of personal political beliefs are protected by the 1st Amendment. It does not matter whether the beliefs are popular or not. Even if the California legislature had sought to restrict expression of a preference for less popular parties in SB 6, they could not constitutionally have done so.

    It was Debra Bowen’s misinterpretation of SB 6 that was unconstitutional, not Proposition 14.

    The California Constitution as amended by Proposition 14 states that a voter in a Top 2 open primary may vote for any candidate “without regard to the political party preference disclosed by the candidate or the voter.” “Without regard” means that the State of California either by statute or regulation may not make a distinction based on party preference. They may not prevent candidates from expressing a less popular or novel viewpoint, nor prevent a voter, particularly those who share that view from being exposed to it. The requirement that a candidate who has a preference for other than one of the “qualified” parties, must state that he doesn’t have a preference for one of the qualified parties clearly violates Gralike.

  6. Be Rational

    Riley, you prattle on, fool no one and don’t ever listen.

    “Top-two” is evil. It creates a one-party state and ends free elections. It must be repealed wherever in has been enacted.

  7. Jim Riley

    Some have suggested that the “modicum of support” decisions such as Storer apply, but this is not true.

    “modicum” means a small, moderate, or token amount.

    California has long had quite modest petition requirements for candidates to be placed on a primary ballot, whether it is for a non-partisan office such as superintendent of public instruction or county supervisor; or for placement on a partisan primary ballot for governor or state assemblyman.

    Since all candidates for voter-nominated office are placed on the primary ballot, the same modest petition requirements apply to all candidates.

    What is being confused here is the support levels necessary to make a nomination. Political parties had to demonstrate that there was support for their nomination process, either by having over 100,000 voters having registered their intent to vote in the party’s next primary, or nearly 200,000 voters having voted for one of the party’s statewide nominees at the past election. The individual candidates had only a small signature requirement to get on the primary ballot, and then if they received the most primary votes advanced to the primary.

    For candidates nominated independently of the party primaries, the standard was even more burdensome, with 175,000 signatures required for a statewide candidate. This is more than the collective total of voters in the 2010 American Independent, Green, Libertarian, and Peace & Freedom primaries.

    But the purpose of Proposition 14 was to extirpate party nominations from the electoral process in California. As Justice Scalia noted in ‘California Democratic Party vs Jones’ a non-partisan blanket primary would not have the constitutionally crucial characteristic of primary voters choosing a party nominee.

    Under the Top 2 Open Primary, votes cast in the general election no longer indicate support for the nominees of a political party, since the candidates were not nominated. Nor do voter registrations indicate support for the nomination process of the party, since there is no longer such a State-recognized process (excluding presidential elections and party committee elections).

    What the Secretary of State’s misinterpretation of SB 6 is doing is requiring a modicum of agreement with a candidate’s personal political views before that candidate may have that viewpoint appear on the ballot, and worse, require some of them to express a view that is not actually theirs and may even be repugnant to them.

    California might as well add a statement that only political views approved by the State of California may appear on the ballot.

    If voters only see the the names of parties that formerly had the privilege of making nominations, it may lead them to making the erroneous conclusion that they are really nominations in disguise.

    This leads to a suspicious is that the Secretary of State is deliberately attempting to sabotage Top 2, rather than is merely incompetent.

  8. Be Rational

    “California might as well add a statement that only political views approved by the State of California may appear on the ballot.”

    Exactly the result “top-two” was designed to deliver – without the honesty of admitting it.

  9. Casual Bystander

    Just remember, if “Top Two” is such an improvement on what it replaced, can “Top One” be far behind?

  10. Demo Rep

    One more brain dead item.

    ANTI-Democracy gerrymander math —-
    1/2 votes x 1/2 gerrymander areas = 1/4 control.

    Much too difficult LOW tech math for NPR/PBS/ etc. moron groups to understand.

    P.R. and nonpartisan App.V.
    Equal nominating petitions
    ONE election day — NO moron primaries, caucuses and conventions.

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