"TOP-TWO" TO BE ON CALIFORNIA JUNE 2010 BALLOT

Between 3 a.m. and 6 a.m. on February 19, both houses of the California legislature passed bills to let the voters decide whether they wish to enact a "top-two" election system. The popular vote will be in June 2010.

The bills did not exist until February 19. State Senator Abel Maldonado (R-Santa Maria) amended his bill on hazardous waste to instead relate to elections. Therefore, there were no public hearings and no possibility for public input. The overwhelming majority of legislators did not wish to vote for the bills. But the California budget stalemate, which had lasted for months, enabled a single Republican State Senator to force the needed two-thirds of the legislature to support his "top-two" bills, SB 6 and SCA 4. A vote of two-thirds was needed to suspend the normal rules that require public notice for bills. Maldonado said he would vote for the budget if the legislature passed his two election law bills, and he prevailed.

The budget had been stalled because the State Constitution requires the budget to pass with a two-thirds vote, and most of the 16 Republicans in the State Senate would not vote for a budget that raised any taxes. Maldonado’s pledge to vote for the budget, so that it could pass, was so appealing to Democrats in the Senate that they accepted the "top-two" bills. The bills passed in both houses without a single vote to spare.

Some observers believe that Senator Maldonado wants to run for State Controller in 2014. He must leave the State Senate in 2012 because of term limits. Since he has a Hispanic name, and since most Hispanic voters are not registered Republicans, Maldonado might think he would have difficulty winning a semi-closed primary, in which most Hispanics (most of whom are Democrats) could not participate. But under "top-two", Maldonado would hope to be elected.

On the other hand, California Republicans nominated Hispanic candidates for statewide office in the closed primary of 1990 and the semi-closed primary of 2002 (the nominees were Joan Flores for Secretary of State in 1990, and Gary Mendoza for Insurance Commissioner in 2002).

"Top-two" election systems provide that all candidates run in the primary on a single ballot, and all voters use that ballot. The California primary is in June. After the June primary, the only two candidates on the November ballot would be the two candidates who got the most votes in June.

There must be a vote of the people, because the State Constitution cannot be changed without a popular vote of the people. Currently, the State Constitution says that political parties have a right to have their nominees placed on the November ballot.

California voters defeated "top-two" in November 2004 by a margin of 54.0%-46.0%, even though most of the state’s big newspapers endorsed it. It was also defeated in Oregon in November 2008 by 34.1%-65.9%. However, Washington voters voted for it in November 2004 by 59.8%-40.2%. It was used for the first time in any state in Washington in 2008 (Louisiana has used a somewhat similar system for state office since 1975, but in Louisiana, when someone gets 50% in the first round, that person is elected).

"Top-Two" Supporters Ignore Evidence of How it Works

In California, some prominent supporters of "top-two" have an almost religious conviction that "top-two" produces moderate legislators, whereas normal party primaries produce "extremists". These people are especially incensed that many California Republican legislators are diehard conservatives, and that many Democratic legislators follow the wishes of organized labor.

The San Francisco Chronicle of February 20, editorializing in favor of "top-two" says, "Open primaries could provide for the election of more moderate legislators in Sacramento." The San Diego Union of February 20 said the proposal "could open the Capitol’s doors to moderates." The Los Angeles Times on February 20 said, "The system tends to benefit moderates."

Other supporters of "top-two" believe that it will create new ideas and a shake-up of the status quo. For example, the Chronicle news story in the February 20 edition says, "An open primary would dissolve the current political primary system, and has the potential to seriously erode party power and change the entire landscape of state politics…Some suggest the "top two" primary system could shake up a political system badly in need of an influx of new ideas and energy." The San Diego Union story quoted above is titled, "Open-Primary Proposal Could Shake up Politics." A New York Times story run on February 21 is titled, "California Budget Deal May Yield Sea Change in Election Politics."

Washington state used "top-two" for the first time in 2008. Neither the August primary nor the November election met the predictions of California fans of the system.

Primary turnout: The primary in 2008 had a turnout of 42.58%. That was lower than the turnout in the 2004 primary, which used a classic open primary. 2004 turnout was 45.14%. Yet all the supporters of "top-two" always say their type of primary is good for primary turnout.

"Shaking Up the System": the chart below shows that a smaller proportion of legislative seats changed hands in Washington in 2008, than in the median state:

State	Seats	Change	%
Del.	51	9	17.65
So. D.	105	14	13.33
Me.	186	23	12.37
R.I.	113	12	10.62
Iowa	125	13	10.40
Vt.	180	18	10.00
Nev.	52	5	9.62
Mt.	125	12	9.60
Or.	75	7	9.33
N.H.	424	37	8.73
No.D.	69	6	8.70
Ohio	115	10	8.70
Mich.	110	9	8.18
Alas.	50	4	8.00
Tenn.	115	9	7.83
Ct.	187	14	7.49
Utah	90	6	6.67
Okla.	125	8	6.40
Tex.	165	10	6.06
Mn.	134	8	5.97
Colo.	84	5	5.95
WA.	123	7	5.69
Ind.	125	7	5.60
N.M.	112	6	5.36
W.V.	117	6	5.13
Ks.	165	8	4.85
Pa.	228	11	4.82
Hi.	63	3	4.76
Wis.	115	5	4.35
Cal.	100	4	4.00
Ill.	157	6	3.82
Ark.	118	4	3.39
Az.	90	3	3.33
Mo.	180	6	3.33
N.C.	170	5	2.94
Wy.	75	2	2.67
Ga.	236	6	2.54
Ky.	119	3	2.52
Fla.	140	3	2.14
Mass.	200	4	2.00
N.Y.	212	3	1.42
S.C.	170	2	1.18
Idaho	105	1	.95
Aver.	`	`	5.93

The chart above shows what proportion of state legislative seats changed party hands in 2008. The seven states that didn’t hold partisan legislative elections in 2008 are omitted.

The states are listed in the order of "shaking things up", relative to what proportion of the seats switched from one party to another (including instances when a district switched from having an independent legislator to having a member of a party, or vice versa). The states in which things "shook up" the most are at the top, and the states with the smallest proportion of changes are at the bottom.

Washington is in the middle, slightly less volatile than the median state. Most noteworthy is that in 2006, when Washington used a classic open primary, the results were far more exciting. In 2006, 13 of the 123 Washington legislative seats (10.6%) switched from one party to the other.

Another variable is whether "top-two" was good or bad for incumbents. In the Washington 2008 primary, out of 123 races, only one state legislator, Jim Dunn, was defeated for re-election. And he had particular problems which would probably have caused his defeat, no matter what type of primary had been used.

The 2008 Washington results for U.S. House were also stultifying. All eight incumbents were re-elected. Except for the 8^th district, all the incumbents polled over 62% of the vote in November. And in the August primary, all the incumbents polled at least four times as many votes as anyone else in the same party.

Steve Hill, author of "10 Steps to Repair American Democracy", had an op-ed published in the Los Angeles Times of February 20. He made much the same points about the 2008 Washington state experience. He wrote, "To understand if the top-two primary plan might result in more competitive races, I examined the 2008 elections in Washington. Here is what I found:

"With 98 State House races, only five were won by a competitive margin (defined as a 4-percentage point difference between the top two candidates). Sixty-five races (66%) were won by landslide margins of 20 points or higher.

"In the 26 State Senate races, the results were very similar, with 62% won by landslides and only two races fitting into the competitive category. That’s a level of competition that hasn’t changed much from past Washington results, and is no better than what we have now in California.

"In terms of electing more moderates, the Washington elections were a failure. The term ‘moderate’ is a relative one, with different definitions from state to state, so a better way to examine this is to look for how many opportunities were available for moderates to get elected. One way to do that is to see how often the system pitted two Democrats against each other in November, or two Republicans, so that the voters from the other party could act as a moderating influence against either the most conservative Republican or the most liberal Democrat.

"In State House races, only six out of 98 had two candidates from the same party, and in the Senate, two out of 26 races did. So in only a handful of races did moderates have an improved opportunity to get elected."

Although Hill did not mention U.S. House races, in all eight of Washington’s districts, the only candidates on the November ballot were a single Republican and a single Democrat.

Minor party and Independent Candidate Exclusion: the one significant difference in Washington between 2008 and prior years is the effect "top-two" had on minor party and independent candidates. Ever since Washington started using government-printed ballots in 1890, there had always been at least one minor party or independent candidate on the November ballot for Congress, or statewide state office, or both. In 2008, for the first time, there were no such candidates for either Congress or any state statewide race.

On February 19, Arkansas Governor Mike Beebe signed HB 1246 into law. It expands the petitioning period for a party to get on the ballot from any 60 days the party chooses, to any 90 days. The number of signatures remains 10,000. When the Green Party circulated its party petition in 2006, it found the 60-day limit a great hindrance. The bill also expands the petitioning period for non-presidential independents from 60 days to 90 days (presidential independent candidates can take as many days as they wish, and can start as early as they want).

This is the first bill improving ballot access that has passed in any state since 2007. The bill was sponsored by the Green Party’s state legislator, Richard Carroll.

In 2005, the Arizona Senate passed a bill to lower the number of signatures needed for a new party, from 1.33% of the last vote cast, to 1.33% of the last gubernatorial vote cast. That would not have changed anything in presidential election years, but it would have resulted in a substantial reduction in the number of signatures needed in midterm years. Unfortunately, the 2005 bill did not pass the House.

Ballot Access News just learned that an identical bill did get introduced in 2006, and was signed into law. It was SB 1041, by Senator James Waring. Therefore, the number of signatures in 2010 is 20,449, not 30,580.

Alabama: on February 19, the House Constitution and Elections Committee passed HB 72. As amended, the bill lowers the number of signatures for a non-presidential statewide candidate from 3% of the last gubernatorial vote, to 1.5%. If passed, the number needed for a statewide independent in 2010 would drop from 37,513 to 18,757.

The bill originally made the same reduction for district and county independents, but the House Majority Leader, Representative Ken Guin, complained that an independent for state House would then only need 150 signatures, so the part of the bill cutting the number for district and county offices was deleted. Actually the typical state House district requirement would have been 180, not 150; Guin was somewhat inaccurate.

Arkansas: HB 1247, the bill to alter the definition of "party" from a group that got 3% for President or Governor, to one that got 3% for any statewide office at either of the last two elections, passed the House State Agencies & Governmental Affairs Committee on February 13.

Connecticut: on February 18, the Joint Government Administration and Election Committee held a hearing on HB 6436. It cuts the number of signatures for a statewide independent, or for the statewide nominee of an unqualified party, from 7,500 signatures, to 1,000 signatures. Also it says that the Secretary of State will check petitions, so that the circulators don’t need to deal with Town Clerks. The willingness of the Committee to hold a hearing on the bill shows that the bill is being taken seriously. Witnesses from the Green, Libertarian, Constitution and Socialist Parties testified in favor.

Illinois: Representative Mike Boland (D-East Moline) has introduced HB 1012, lowering the number of signatures for independent candidates, and for the nominees of unqualified parties. The new requirement would be twice as many signatures as are now needed for a candidate to get on the primary ballot. For statewide office, the requirement would drop from 25,000 to 10,000 signatures. For district office, it would drop from 5% of the last vote cast, to approximately 1% of the last vote cast.

Maryland: Senators Jaime Raskin (D-Takoma Park) and Andrew Harris (R-Cockeysville) have introduced SB 947, to lower the number of signatures for a new party from 10,000 signatures, to 5,000 signatures.

Missouri: SB 70, to delete the requirement that the petition for a new party must carry the name of that party’s presidential nominee, has been assigned to the committee that handles election law bills.

New Mexico: Senator Al Park (D-Albuquerque) has introduced HB 299, to make it easier for candidates to get on a primary ballot. Existing law requires a petition of 2% of that party’s previous primary vote for Governor. The bill would provide a filing fee alternative. The fee would be $50 for State House, $100 for State Senate, and 4% of the annual salary for other offices.

New York: four bills are pending. A4161 lowers the number of signatures for all district and county in half, for both primary ballot access and general election ballot access. S1366 removes the restriction that no one may circulate an independent candidate petition outside of his or her home district (this is already policy, as a result of a 2004 federal court decision Chou v Bd. of Elections). S355 says petty technical details should not invalidate petitions. A2651 reduces the number of signatures in special elections and expands the petitioning period.

Oklahoma: on February 16, the Senate Rules Committee held a hearing on SB 359, the bill to lower the number of signatures for a previously unqualified party to get on the ballot, from 5% of the last vote, to 5,000 signatures. Unfortunately it was defeated 10-4. The lobbyist for the bill spend so much time just trying to persuade the Committee to hold the hearing, she didn’t have time to talk to all the Committee members. An identical bill, HB 1072, is still alive in the House. Also HB 2206 would provide that the voters should vote in 2010 on whether to ease the ballot access laws, not only for parties, but for independent presidential candidates. However, that popular vote would be combined with lots of other issues, such as removing the straight-ticket device from ballots, and letting 17-year-olds vote in primaries if they would be 18 by the general election, and election day registration.

Oregon: Senator Rick Metsger (D-Mt. Hood) has introduced two bills to ease ballot access for independent candidates. SB 326 repeals the law passed in 2005 that says primary voters can’t sign for an independent candidate. SB 353 lowers the number of signatures needed by an independent candidate, from 1% of the last presidential vote, to one-half of 1%. If the bill were passed, statewide independents would need 9,072 signatures instead of 18,143.

Pennsylvania: SB 252 provides that a group with registration membership of at least .05% of the state total is a qualified minor party, able to nominate candidates by convention and have them automatically on the general election ballot. The bill also lowers the number of signatures needed by independent candidates to the same number of signatures that are needed for candidates seeking a place on a primary ballot. The statewide requirement would be 2,000 signatures. Current law requires approximately 30,000 signatures. The bill is co-sponsored by Senator Mike Folmer (R-Lebanon) and eight other Senators.

Rhode Island: SB 203, by Senators David Bates (R-Barrington) and Edward O’Neill (I-Lincoln), would lower the petition for a new party from 5% of the last vote cast, to 1%. It would also legalize circulating the petition in an odd year. The same bill in the House, by Representatives Rodney Driver (D-Richmond) and Christopher Fierro (D-Woonsocket), is HB 5426.

Texas: HB 820, by Representative Solomon Ortiz (D-Corpus Christi), would lower the petition for a new party and for a statewide independent candidate to 500 signatures. The current requirement is 1% of the last gubernatorial vote, except that for presidential independents the current requirement is 1% of the last presidential vote (80,771 signatures).

Utah: SB 27 has passed the legislature. It repeals the requirement that an independent presidential candidate must personally file paperwork in Utah in order to be on the ballot.

West Virginia: Delegate Barbara Fleischauer has introduced a bill to lower the number of signatures for independent and minor party candidates from 2% of the last vote cast, to 1%. The bill also changes the non-presidential petition deadline from May to August. The bill number is not known yet.

Maine: Senator Peter Bowman (D-Kittery) has introduced LD547, to provide that the names of qualified write-in candidates must be posted at polling stations. Also, the list must be on the Secretary of State’s webpage in the weeks before an election. Finally, the bill deletes the requirement that a write-in voter must write-in not only the name of the candidate, but that candidate’s town.

Vermont: the Secretary of State’s omnibus bill is about to be introduced, and it will provide that write-in candidates who file a declaration of write-in candidacy will have their votes tallied and included in the official state election returns. Currently, write-ins are permitted, but the state doesn’t tally them, although the Secretary of State made an exception last year and tallied the write-ins for Cynthia McKinney for president.

On February 17, the Virginia Senate Privileges & Elections Committee deleted a restrictive provision from HB 2642. The provision would have outlawed paying petition circulators on a per-signature basis. It would even have made it illegal to pay a bonus based on high productivity. This provision had been passed the House unanimously, but activists persuaded the Senate Committee to eliminate the idea from the bill.

The U.S. Supreme Court will consider whether to hear Arizona’s appeal in Brewer v Nader on March 6.

On February 19, the Ohio Secretary of State finalized a directive that all the parties that were on the ballot in 2008 are also on in 2009. That includes the Libertarian, Green, Constitution and Socialist Parties, all of which were put on by court order in 2008, on the basis that the law on how a party gets on the ballot had been declared unconstitutional in 2006, and no new law exists yet.

Bills to establish the National Popular Vote Plan pact have been introduced this year in Alaska, Arkansas, Connecticut, Florida, Iowa, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Vermont, Virginia, and Washington. The New Mexico bill has already passed the House, and the bills in Arkansas, New Mexico, Vermont, and Washington have already passed the first Committee.

On February 5, the Minneapolis City Council voted to use Instant Runoff Voting in this year’s city elections. The city’s voters had voted for IRV in 2007, but opponents had filed a lawsuit, charging that the Minnesota Constitution does not permit cities to make that choice. However, because a lower court upheld IRV earlier this year, the Council felt free to implement it.

This chart shows the most crowded general election race for statewide office, in the history of each state. The chart only refers to regularly scheduled elections, not special elections. This chart may be useful to persuade state legislators that their fears of overcrowded ballots are unwarranted. The highest number of candidates for statewide office was 19, in New Jersey in 1993.

State	Year	Number of Candidates	Requirements
Alabama	1980	10 for president	Hold a convention
Alaska	1992	9 for president	2,035 signatures
Arizona	1968	7 for president	358 signatures
Arkansas	1996	13 for president	Hold a convention
California	1996	8 for president	89,007 registrations
Colorado	2008	16 for president	Pay $500
Connecticut	1996	7 for president	7,500 signatures
Delaware	2008	7 for president	284 registrations
District of Columbia	1992	9 for president	3,072 signatures
Florida	2008	13 for president	27 members to be electors
Georgia	1936	5 for president	Hold a convention
Hawaii	2000	7 for president	602 signatures
Idaho	2000	6 for president	4,918 signatures
Illinois	1976	8 for president	25,000 signatures
Indiana	1980	8 for president	6,982 signatures
Iowa	1992	14 for president	1,000 signatures
Kansas	1980	8 for president	2,500 signatures
Kentucky	1976	9 for president	5,000 signatures
Louisiana	1992	11 for president	Pay $500
Maine	1996	7 for president	4,000 signatures
Maryland	2008	6 for president	10,000 signatures
Massachusetts	1938	10 for governor	1,000 signatures
Michigan	1984	10 for president	File decl. of cand. In court
Minnesota	1996	11 for president	2,000 signatures
Mississippi	1992	8 for president	1,000 signatures
Missouri	1952	8 for president	Hold a convention
Montana	2000	7 for president	5,000 signatures
Nebraska	2000	7 for president	2,500 signatures
Nevada	1992	8 for president	9,392 signatures
New Hampshire	1980	8 for president	1,000 signatures
New Jersey	1993	19 for governor	800 signatures
New Mexico	1992	10 for president	2,069 signatures
New York	2000	12 lines for president	15,000 signatures
North Carolina	1980	6 for president	10,000 signatures
North Dakota	1976	11 for president	300 signatures
Ohio	1984	9 for president	5,000 signatures
Oklahoma	1934	8 for governor	Pay a fee
Oregon	1996	8 for president	14,601 signatures
Pennsylvania	1914	10 lines for governor	2,238 signatures
Rhode Island	2000	10 for president	1,000 signatures
South Carolina	2000	7 for president	10,000 signatures
South Dakota	1996	6 for president	3,117 signatures
Tennessee	1992	14 for president	25 signatures
Texas	1996	6 for president	43,963 signatures
Utah	1992	13 for president	300 signatures
Vermont	2000	10 for president	1,000 signatures
Virginia	1936	7 for president	File decl. of candidacy
Washington	1976	12 for president	100 attendees at meeting
West Virginia	2000	6 for president	6,365 signatures
Wisconsin	1976	11 for president	2,000 signatures
Wyoming	2000	6 for president	3,485 signatures

On February 17, Indianapolis Councilmember Edward Coleman called a press conference and announced he is leaving the Republican Party and joining the Libertarian Party. He was elected to one of the four at-large city-county council seats in November 2007, so he is halfway through his 4-year term. Indianapolis is merged with Marion County, and the combined entity uses partisan elections, and is run by a Mayor and a 29-member council. Most of the councilmembers are elected by district, but, as noted above, Coleman has an at-large seat.

Indianapolis has an estimated population of 795,458 as of 2006, making it the 14^th most populous city in the United States. It is virtually tied with San Francisco, which is 13^th. Indianapolis has more people than North Dakota, Alaska, Vermont, Wyoming, and the District of Columbia.

Coleman therefore represents more voters than any other member of a minor party in the United States. The only independents who represent more voters are Mayor Michael Bloomberg of New York city, and U.S. Senator Joe Lieberman of Connecticut.

Assuming Coleman runs for re-election as a Libertarian in 2011, his path will not be easy. Indiana has a straight-ticket device, so many voters will vote a straight Republican ticket, or a straight Democratic ticket, without noticing that perhaps they wanted to vote for Coleman. The last Libertarian Party partisan county supervisor, Paul Trujillo of Valencia County, New Mexico, was defeated in 2006 when he ran for re-election as a Libertarian. Even though he was popular, New Mexico also has a straight-ticket device, which probably caused his defeat.

The February 1 B.A.N. listed the FEC’s compilation of how many votes each presidential candidate received last year. However, B.A.N. erroneously omitted Cynthia McKinney’s vote total of 161,603.

Richard Carroll, the Green Party’s state legislator in Arkansas, is quickly becoming one of the best-known politicians in the state. On January 29, the Arkansas Times ran a story on him which revealed that he works a night shift in the Union Pacific Railroad’s shop in North Little Rock, so that he can attend the legislature in the daytime. His job with the railroad consists of helping rebuild locomotives that have been damaged in derailments and accidents.

Then, he got more publicity on February 11 when he introduced HJR 1009, to repeal Article 19, section 1 of the Arkansas Constitution. That currently says, "No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court." If HJR 1009 passes, the voters would then vote on whether to approve the change. The bill is currently sitting in Committee. The only other states that have similar laws in their Constitutions are Tennessee and Texas. Also, South Carolina’s Constitution says no atheist can become Governor.

Carroll got still more publicity in February when he was denied membership in the legislature’s Black Caucus. Carroll is white, but his wife is black, and he lives in a black majority district, and he says he supports the legislative agenda of the Black Caucus. It took the Black Caucus several weeks to decide that he may not join.

On February 1, the Coalition for Free and Open Elections (COFOE) held its annual board meeting in New York. The Board appropriated $2,000 for the Illinois ballot access case. The Board also appropriated another $1,000 for the Georgia ballot access case. All of COFOE’s income comes from readers of Ballot Access News. If you are a COFOE member, your dues are being put to good use. COFOE-sponsored lawsuits won against the North Carolina independent petition requirement in 2004, and against an Illinois petition requirement for independents in 2006.

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