Thomas D. Elias has this op-ed in favor of the “top-two” system in the June 17 issue of the Long Beach, California, Press-Telegram. The op-ed has several important factual errors.
The op-ed says the system is “just like special elections”, but in California, special legislative and U.S. House elections are not like “top-two”. The first round in California special elections is an election. An election is defined as an event that can elect someone. The first round in the California “top-two” proposal is never an election. No one can be elected in the first round under “top-two.” The first round is nothing but an exclusionary device to keep candidates off the general election ballot.
The op-ed says under current California law, “voters can only cast ballots (in the primary) for candidates in the party where they’re registered.” In reality, independent voters may vote in California Democratic primaries for all office, and in California Republican primaries for all office except President.
The op-ed says the California legislature is “loaded with ideologues”, but the op-ed doesn’t say who they are. Proponents of “top-two” constantly make this claim but they never have the nerve to list which legislators they mean.
The op-ed says Louisiana has been using “top-two” “for more than 50 years”. Louisiana started using its current system for state office (in which there are no party primaries) 34 years ago. Also the Louisiana system is not quite the same as “top-two” because in Louisiana, the first round is an election.
Elias ignores all evidence of how “top-two” worked in Washington state in 2008, the first time it had been used there. Only one incumbent state legislator (out of 124 seats that were up) was defeated in the primary, and the percentage of Washington state legislative seats that switched parties was lower than in California that same year. Also, Washington state’s first “top-two” primary, in 2008, had a lower voter turnout than in 2004, when Washington state used a classic open primary. “Top-two” proponents commonly assert that turnout increases under “top-two”, but ignore the actual evidence.
Richard:
Reminder, in primary elections the American Independent
Party also allows the Decline to State voters to cast ballots for all offices. It also did not join the law suit that overturned the open primary law voted in during the 1990’s in California. It is the insistence of all the other parties to NOT accept that situation that has brought us to this current situation. Next year a proposition will be on the ballot to force top
two on California. That’s why the op-ed was written.
The Op-ed said “all candidates are listed together on the ballot in each primary election, just as they now are in special elections.” That is absolutely true. It did not say that the system is just like “special elections”. Note however, that if the proposition is adopted, special elections will be like the open primary with the top two candidates advancing to a second election regardless of party affiliation, with the exception that a majority winner can be elected without a runoff.
The primary election under a Top 2 system is to winnow the field to the two leading candidates without respect to the political affiliation of the voters or the candidates. It thus serves to choose two candidates, and is therefore by definition an election.
Louisiana has effectively used the Top 2 system for more than 50 years. The only time there was a Republican gubernatorial primary (in 1971), turnout was about 1% of that in the Democratic primary.
Tom and I had some contact during California’s Prop. 62 (“top two”) campaign in 2004. Like most “top two” proponents, Tom doesn’t give a damn about political parties. He told me that he didn’t mind the existence of national political parties, but he saw no need for state parties!
In his op-eds of December 2008 and May 2008, Tom bragged that California voters passed the blanket primary (which he calls the “open primary”) in 1996. But he conveniently omitted the fact that Prop. 62 failed in 2004, losing in 51 of the state’s 58 counties.
Tom also stated that, in its March 2008 ruling, the U. S. Supreme Court totally approved Washington state’s “top two,” which is not true. The high court in fact said that an “as-applied” suit could be brought against the Washington system after the state had used it once.
Tom further said that the high court had approved Louisiana’s “top two.” In reality, no suit has ever been brought against the Bayou State’s overall system.
Judging from the content of Tom’s latest op-ed, my detailed rebuttals of his two previous op-eds had little or no effect on him.
In California, whether independent voters may participate in the partisan primaries is entirely up to the whim of the party central committees.
If an independent voter found themselves in a Democratic tilting legislative district and a Republican tilting congressional district, they would have to choose between choosing a legislator or US representative. Under a Top 2 system, they could vote for both, just like the US Constitution says that they should.
You didn’t question Elias’s assertion that the major political parties would suddenly be professing an interest in the well-being of smaller parties and independent candidates (does California have the highest petition standard for independent congressional candidates, or are there other States that are even worse?) And the unions in Oregon did campaign against Top 2, including the smear job by the teachers union.
#3 His current editorial says “an almost identical proposal was defeated here three years ago as Proposition 62, when both big parties fought it.”
Under the proposal to be voted on next year, any voter may express a party preference on the voter registration rolls, and if they seek office to have that expressed preference shown on the ballot.
The California ballot question next year will not give unrestricted freedom for choice of a party “preference”. Unlike the Washington state system, a California candidate who is not a member of a qualified party cannot express his or her “preference” under the proposal. Instead that person is stuck with “independent” as a preference. That aspect is one of the minor reasons why the California measure may be held unconstitutional. There is no state interest in censoring a candidate’s “preference”, since the choice of a party label has no connection with ballot crowding.
#2: “Louisiana has effectively used the Top 2 system for more than 50 years.”
The “top two”/”open primary” is indeed part of the residue of the old one-party (truly NO-PARTY) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary. You could also say that most Southern states, prior to the Republican Party becoming competitive in the ’60s and ’70s, also used the “top two.”
Over the years, I have been astonished to hear gung-ho Mississippi Republicans calling for our state to adopt a Louisiana-style system. That’s like chickens inviting Colonel Sanders into the henhouse.
#4, third paragraph: Representatives of California’s numerous small parties campaigned against Prop. 62 in 2004. And it should be noted that just under 66% of Oregon voters opposed that similar ballot measure last November– hardly a squeaker.
A ruling should come down in the current federal suit against Washington state’s “top two” prior to California’s June 2010 vote on the “top two.”
Jim at #4: … Elias’s assertion that the major political parties would suddenly be professing an interest in the well-being of smaller parties and independent candidates (does California have the highest petition standard for independent congressional candidates, or are there other States that are even worse?)
Taking the second part first, the proposed state constitutional amendment is accompanied by legislation that makes many changes to the election law, to be effective only if the amendment passes. (The constitutional amendment is SCA 4 and the statute is SB 6.) The way I read the statute, it sets very reasonable ballot access rules: 65 signatures to run for Governor and U.S. Senate, 40 signatures to run for state Assembly and state Senate. And signers do not need to be registered in the same party as the candidate.
But whether deliberately or not, top two would dramatically changes the rules for small parties trying to stay on the ballot. First, it changes the meaning of “on the ballot” since that phrase would apply only to Presidential elections and party central committee elections, and not to any other office. Second, it weakens the motives voters have to register as members of a party.
Third, it changes the rules for keeping ballot-qualified status. Currently in California, a party can stay on the ballot either by keeping its registration above one percent of the vote in the most recent gubernatorial election, or by getting two percent of the vote for any statewide office at the same election. Only parties that have a statewide candidate who advances to the second round are going to be able to take advantage of the two percent provision. (Since neither SCA 4 nor SB 6 changes this part of current law to keep it in sync with all of the other changes, one might try to argue that two percent in the first round ought to count, but I don’t think the courts are going to buy that.) The Peace and Freedom Party, currently the smallest in terms of registration, could not stay ballot-qualified unless it increases its registration by over 50%. The Libertarian Party is currently under the one percent threshold, although only by a few thousand. This is in spite of the fact that both parties routinely get two percent for at least one statewide office.
I’m pretty sure the comments on small parties that Elias attributes to Republican and Democratic strategists have nothing to do with suddenly discovering the virtues of a multiparty system. These are just convenient smokescreens, to be buried as soon as the measure is defeated.
Sorry … only the first paragraph, quoting Jim Riley, should be in italics.
#4: “In California, whether independent voters may participate in the partisan primaries is entirely up to the whim of the party central committees.”
Why should a voter who steadfastly refuses to affiliate with a party be allowed to help choose that party’s nominees– unless the party invites that voter to do so? Furthermore, in California, a voter may change his registration as late as 15 days prior to the election.
In 2004, Washington had contested gubernatorial primaries, especially on the Democratic side where King County Executive Ron Sims was challenging Christine Gregoire. In 2008, the matchup for the gubernatorial race had been set in 2004 when the recount between Gregoire and Gino Rossi went on for weeks. There was also a US senate race in 2004, but none in 2008.
Despite the lack of top of the ticket contests, turnout was only down 1.7% statewide. However, this was largely due to a 22.2% decline in King County. Elsewhere in the State, turnout was up 7.8%, with bigger increases the further you got from Seattle. An honest appraisal of the situation is that voters in King County turned out to vote for Ron Sims in 2004, and didn’t show up in 2008.
King County had 31.5% of the statewide turnout in 2004; 37.7% of the statewide Democratic gubernatorial vote; and 47.8% of the statewide Ron Sims support. In 2008, King County only had 25.1% of the statewide turnout. Between 2004 and 2008, voter registration increased 3.5% in King County vs. 4.2% statewide, so the difference in turnout can not be attributed to a mass exodus of Seattleites to Wahkiakum, Wenatchee, and Walla Walla.
Another remarkable thing about the two years is that only 88% of voters cast an effective vote for governor in 2004. 177,000 ballots simply did not count.
7.8% of voters did not pick a party. While it is true they may have voted in the non-partisan Supreme Court and Superintendent of Public Instruction races, this is quite unlikely given that turnout for these races was only about 75% of those who did successfully vote in the gubernatorial race. Another 4.2% picked a party but did not vote in the gubernatorial primary of their party.
Among Libertarian voters, 14% did not vote in the gubernatorial primary, even though this was the only primary and the only primary race that the Libertarians have ever had and probably will ever have in Washington.
What really happened was that a large share of voters simply refused to color within the lines imposed by the party political bosses. Many voters who checked the Democratic box simply wanted to vote in the Gregoire-Sims race.
In 2008, 99% of voters cast an effective vote in the gubernatorial primary. So while their were 1.7% fewer ballots turned-in in 2008, there were 10.7% more votes cast in the gubernatorial race, despite there not being a hotly-contested race.
#7 You will recall in the oral arguments before the US Supreme Court in Foster v. Love, Louisiana Attorney General Ieyoub argued that the Louisiana system was so unique that the Congress could not possibly have conceived of the idea when it set the uniform congressional election date in 1872. The Love lawyer correctly pointed out that when Congress set the uniform congressional election date that all States used the system where any voter could vote for any candidate in congressional elections.
Am I not correct that there was only one Republican gubernatorial primary in Louisiana history with only about 10,000 votes (less than the 2004 Libertarian primary in Washington) vs. over 1 million in the Edwin Edwards-J Bennett Johnston race for the Democrats.
After they switched to the open primary, David Treen was elected governor on the 2nd try. Since before then the GOP was the equivalent to a 3rd party in Louisiana, we may well expect 3rd party success in Washington in coming years.
I wrote a polite note to the author to stand with us for ballot freedom. He is a total a-hole. Feel free to send him an e-mail.
Elias’ e-mail to me:
Thanks for your note, Mr. Julian, but freedom is not an issue here. All minor parties are completely free to run candidates in primary elections, voicing all their views. And if they are sufficiently appealing to enough voters, they will begin to make runoff elections. But there would be no more crutch for them in the form of a guaranteed November forum, even if their views are so far from the mainstream that they would have no hope of making a runoff on their own merits.
That’s not a lack of freedom; rather it’s a wakeup call to minor parties to become relevant or be consigned to primaries only. Plus, there would be no minor parties to siphon off votes from significant candidates and throw elections out of whack, the way Ralph Nader did in 2000 and the way occasional minor party candidates have done in other past elections. That would also be an improvement.
Again, this is not a freedom issue; it’s a matter of forcing parties to become truly relevant if they want to play a role in runoff elections.
tom elias
Tdelias@aol.com
#6 California has party registration, Washington does not.
Under California’s system, a party registrant is not a member of party, but rather simply expressing an intent to affiliate with at the next primary election (see Elections Code 2151). As you well know, there is no requirement that a voter affiliate with a “qualified” party, and even if a party becomes de-qualified a voter’s party affiliation does not change.
SB 6, passed by the legislature and approved by the governor in February is the enabling election for the opening primary. It will become operative when (if) the voters approved the Constitutional amendment.
SB 6 recasts voter registration from “intent to affiliate at the next (party) primary” to a “disclosure of party preference”, but does not otherwise change the general concepts of party affiliation. For example, whether a party is “qualified” (to hold a presidential preference primary, elect party officers, and have a presidential candidate on the general election ballot depends (in part) on the percentage of voters who express a preference for the party. Similarly, a voter may express a preference for a non-qualified party. Just as a voter may now continue to express an intent to affiliate with the Natural Law Party at the next primary, they may disclose a preference for the Natural Law Party.
When a candidate files a declaration of candidacy, they have a choice of having the party preference that they disclosed on their voter registration printed on the ballot, or to have it omitted.
Read through the current Elections code and also SB 6, and see if you can find anything that would restrict a party preference to an established or “qualified” party.
SB 6 sets the petition requirement for US representative at 40 signatures. How does that compare with the current requirement for an independent candidate in California?
So in actual fact, the open primary makes it remarkably easier for candidates who do not prefer the established parties to run for office.
Independent voters would do better to just start registering as candidates in the general election than to complain about party primaries. Party primaries were used to put a stop to the Populist movement about 1900, supported by Republicans because it gave them more financial control over elections and supported by Democrats because they had been repeatedly losing the Presidential election because of populist candidate William Jennings Bryan. Public financed party primaries gave party bosses complete control over elections, while, at the same time, the people were convinced that their voice in government was increased.
There is no way to improve the condition of independent voters by worrying about primary elections. Party politicians will tell you that political parties are like private clubs, and they have the right to choose their own candidates. Independent voters should tell them, “That is right, and as soon as you are paying for your own primary elections, independent voters will have no desire to vote in your primary elections for your corrupt candidates, but as long as these elections are paid for by public revenues taken from independent voters, we have a right to vote in them.”
Exclusion of independent voters is taxation without representation.
The two major parties represent themselves to be the government of the United States. Actually, the people of the United States are the government. The majority of voters are now independent voters. If independent voters wish to be represented in government, they will have to start registering as candidates in the general election. The difficulty that exists is that two hundred years of political party domination have resulted in state laws that are designed to prevent independents from becoming candidates for office. That being the case, independents need to use what exists instead of wishing that political party members were good and fair minded people. Political parties will use every unfair advantage, every dishonest practice, every untruth they can think of, and all of the public revenues they can appropriate to keep themselves where they are. Their task is impossible. Independent voters will take over the government. How fast it happens will depend on what independent voters do at this time. If independent voters start registering as candidates in the general election, the artificial authority that political parties have assumed will be broken fairly quickly. If independent voters do nothing but complain about party unfairness, as they are now doing, it could take centuries.
The weakness that political parties have is that they can never make government interesting enough to attract a majority of people to be active in government. The best they have done here in Arizona in recent years is a voter registration of 54%. The two major parties changed the voter registration form to slow independent voter registration in 2005. At that time independent voter registration was approaching 100,000 per year, while the rate of party registration was declining. Party politicians took the check box for independent voter registration off from the voter registration form, decreasing independent voter registration to 13,000 per year. However, the attempt to stop independent voter registration was only effective for a two year period, and is now at 167,361 between April 1, 2007 and April 1, 2008, a higher rate than existed before the attempt to stop independent voter registration.
Independent voters need to pay more attention to voter registration and less to party candidates. If independents want to take back the government after 200 years, they need to increase voter registration. Without candidates for office in the general election, it is going to take a long time. If there were independent candidates, they could be registering voters while obtaining nomination petition signatures.
#8 A candidate nominated for the general election for a voter-nominated party does not represent the political party he may have disclosed a preference for, so that the 2% requirement of Elections Codes 5100(a) would be moot.
So a party whose registration was below 1% of the previous gubernatorial vote would not qualify to conduct a presidential preference primary; nor be able to elect its party officers at the June primary; nor would it be able to have a sample ballot with any endorsements distributed to its affiliated voters.
The requirement that political parties choose their party officers in a public primary likely would not withstand a court challenge.
And the state parties may currently disregard the results of the presidential preference primary. In 2008, the Democratic, Libertarian, Green, and American Independent parties did not place the winner of their presidential primary on the general election ballot).
So how important is it that a political party be able to have a presidential preference primary?
Given the ease by which a candidate may qualify for the gubernatorial or presidential ballot, how likely is that the current standard for qualifying as an independent presidential candidate would stand up in court?
Wouldn’t it be better to reform the presidential ballot qualification process, rather than to retain the partisan “nomination” of State Treasurer candidates so that minor parties can maintain a place on the presidential ballot?
Second, it weakens the motives voters have to register as members of a party. Let’s rephrase this to: “it removes the requirement that voters affiliate with a political party in order to fully participate in the electoral process, and permits voters
to freely exercise their 1st Amendment political association rights without State interference or coercion.”
#10. Why should a voter who steadfastly refuses to affiliate with a party be allowed to help choose that party’s nominees?
Richard Winger wrote: “In reality, independent voters may vote in California Democratic primaries for all office, and in California Republican primaries for all office except President.
You are arguing that it is irrational for the political parties to continue to do so.
I’m simply suggesting that “independent” voters can not and should not depend on the privilege (certainly not a right) to vote in partisan primaries when it is up to the discretion (or whim) of the political parties to do so, and where the current practice may be irrational.
Choice 1) Independent voters may participate in all elections for all statewide and congressional offices (county elections in California are already nonpartisan).
Choice 2) Independent voters may participate in elections that in many cases effectively choose who takes office, only at the discretion of the political parties. In some cases, they may have to choose between voting for the Democratic nominee for Congress
or the Republican nominee for the Assembly.
THE problem is minority rule GERRYMANDERS.
Top 2 is one more distraction dreamed up by populist MORONS.
P.R. and A.V. — NO party hack caucuses, primaries and conventions are needed.
Before 2004, Washington had used a blanket primary where any voter could freely vote in the primary of any party, switching from race to race if they so chose. Thus candidates might choose to appeal to independents and cross-over voters, rather than simply trying to gain support from among more partisan voters in a closed primary.
Washington also elects 3 legislators from each legislative district, one senator and two house members, so that there may be less challenges of incumbents. A newcomer could simply wait for one of the seats to open up (if a senatorial seat opens up, it is common for one of the representatives to seek the senate seat, which opens up the representative seat).
So Washington had a system where legislators had become successful at appealing to a broad range of interests in their district. Incumbents were rarely defeated. Remember that these nominally partisan legislators passed the Top 2 primary, only to have it blocked by Governor Gary Locke’s ill-advised veto. It was only after the veto that the Washington Grange started their initiative petition drive.
Many legislators were elected in 2000 and 2002 under the blanket primary, in 2004 and 2006 under the pick a party primary, and under the Top 2 primary in 2008. It would be either naive, disingenuous, or dishonest to expect large differences.
And of course, the Supreme Court ruling did not come down until March 18, 2008. There was a certain degree of uncertainty about the use of the Top 2, as the political parties continued to litigate as part of their FUD campaign. It would be unrealistic to expect strongly funded or supported candidates to seek election under a system that might changed.
In the limited cases where there were open seats, the system did work to the extent that it permitted all voters to participate in the election of the new legislature.
#16: A candidate nominated for the general election for a voter-nominated party does not represent the political party he may have disclosed a preference for, so that the 2% requirement of Elections Code 5100(a) would be moot.
I think that Jim Riley is right and I was wrong (#8) on this point. Thank you.
Something important is missing from my outline of the effect on small parties in #8. For political parties, ballot access is important because (1) you do not have to collect signatures separately for each office you want to run a candidate for, and (2) your candidates get to be identified on the ballot as representatives of your party, which is a crucial signal to many (or even most) voters once they get past President, Governor and Senator on the ballot.
Under the California proposal, (2) would become a huge problem as small parties lose ballot status. Unlike Washington, this proposal doesn’t let you state that you are a member of a party that doesn’t have ballot status.
But, at the start, (1) would not be much of a problem because the signature requirements are so friendly to ballot access concerns. What is important about (1) is that it is part of the statute, not the constitutional amendment. It could, and almost certainly would, be amended very quickly. Then it would become clear that this proposal effectively eliminates small parties.
#21 I don’t read SB 6 that way. Go through SB 6 and the current Elections Codes, section by section.
A large chunk of SB 6 is to recast the current voter registration status, which is not “party member” but rather “intent to affiliate with the party at the next primary”. But now a voter will “disclose his party preference”. Instead of declining to state which party he will affiliate with, an “independent” voter will choose to not disclose his party preference.
But the rest of the party registration code remains intact. And in California one is entirely free to express an intent to affiliate with a non-qualified party. If a party is disqualified, the voter affiliation does not change. There are likely thousands of voters who have expressed through their voter registration their intent to vote in the Natural Law Party primary next June. And the only practical way to qualify a new party is by voters first to register with the party. The laws that require county election officials to scan through their voter rolls and find registrants of various non-qualified parties is not changed. Currently, the Anarchy and Poverty Party, Christian Party, Free Parliamentary Party, Golden State Party, More Money for Women Party, New World Party People for Direct Democracy Party, Reform Party, and Utopia Manifesto Party are attempting to qualify. Only the Reform Party has a significant number of registrants. Second is the Christian Party with 100 voters who have expressed their intent to affiliate with the party at the next primary.
So clearly voters may express a preference for a non-qualified party, and that preference is not changed merely through disqualification of the party.
A candidate for office will be able to indicate on the ballot, their party preference or lack thereof that they had previously disclosed. So a voter could disclose a preference for the Constitution Party, and then run for office with his previously disclosed preference indicated on the ballot (one provision of SB 6 requires 10 years of party registration history to be posted on the county election web sites).
True, the law could be revised. But it might be something that either the California or Federal Courts would overturn. “What is the role of the Democratic and Republican, etc. parties?” “To hold presidential primaries and nominate presidential candidates. They may not nominate candidates for statewide, federal, or county offices.” “So what is the purpose of this law?” “To restrict candidates to expressing a preference for only certain parties that may not nominate them.” “Isn’t this just a subterfuge to get around the constitution?” “Err…”
Since participation in the primary is open to all voters and candidates without regard to party preference, how can the State by law add a restriction? Since expression of a party preference is not an indication of endorsement or nomination it would seem like the State would have to be careful about restricting the 1st Amendment right of a candidate to express his preference for any party.
As to (1), the petition requirements for qualifying for the open primary are the same as the current requirements for the partisan primaries. Why would they be changed, if they haven’t already been?
BTW, Washington’s Top 2 primary is entirely in statute. There was a proposed bill by the Secretary of State that would restrict candidate preferences to minor parties that had petitioned (100 signatures). Washington does not have party registration, so the only way to maintain major party status is through performance in the presidential election.