In June 2010, Californians will be voting for the second time on the “top-two” election system. Californians voted on it in November 2004, and defeated it 54%-46%. A detailed look at the 2010 ballot measure shows that it is significantly less respectful of voter rights than the 2004 California proposal had been.
1. The November 2004 proposal did not curtail the ability of voters to cast a write-in vote for anyone they wished in general elections. By contrast, the 2010 proposal says, “8606. A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.” If this passes, California would be one of only 7 states in which no voter could cast a write-in vote for Congress or state office in a November election, and have that write-in counted. Hawaii, South Dakota, Louisiana, Oklahoma and Nevada are the only states that never print write-in space on general election ballots for Congress and state office. Also, Mississippi prints write-in space, but won’t count the write-ins unless a candidate whose name is on the ballot dies or withdraws.
The termination of write-in voting is especially disappointing, given that three times, Californians have elected someone to Congress by write-in votes at the general election, in 1930, 1946, and 1982.
2. The 2004 California initiative eased the requirements for a party to remain ballot-qualified. It lowered the number of registered members a party needs qualify initially, from 1% of the last gubernatorial vote, to one-third of 1% of the last gubernatorial vote. This was to compensate for the fact that under “top-two”, parties don’t have nominees, so the “top-two” measures always automatically eliminate the alternate vote test for a party to remain ballot-qualified. In other words, a party could no longer remain on the ballot by polling 2% for a statewide office in a midterm year, so at least the 2004 measure compensated by lowering the number of registrants a party needs.
By contrast, the 2010 ballot measure does not alter the definition of “qualified party”, so if it becomes law, the only way a party will be able to remain on the ballot will be to have registration above 1% of the last gubernatorial vote. Currently that requirement is 88,991 registrants, but after 2010 it is likely to be close to 100,000 registrants. In October 2008 the Peace & Freedom Party only had 56,350 registrants, and the Libertarian Party only had 83,574, so both parties would need to significantly increase their registration, if the 2010 measure passes.
Many Libertarians in Oklahoma would celebrate a one percent registration quota. I wouldn’t but others would.
That’s the trouble with abandoning a pure open ballot access standard, the quota keeps shifting to exclude more and more people. The pure standard is ZERO registrations, ZERO petition signatures, ZERO candidate filing fees (taxes) and 100% count of write-in votes.
Would “write in” still apply to Presidential elections? How would top two affect Presidential elections overall?
“Top-two” doesn’t have any effect on presidential elections. Qualified political parties in California would still have their presidential nominees on the November ballot. That is the only partisan office about which that would be true.
P.R. and A.V.
NO primaries, caucuses and conventions are needed.
Too much for the armies of petition folks in CA to understand ???
The Top 2 provision has two parts, one which would modify the California Constitution to provide for Top 2 elections, and the main part which is in statute. The statutory law has been passed by the legislature, and signed by the governor. It includes a provision that makes its execution contingent on passage of the proposition.
There is nothing that would prevent the legislature from making adjustments to the law, so long as they were consonant with the Top 2 provisions.
The Top 2 statute does permit write-in candidates for the primary, and is more liberal than existing law with respect to advancing to the general election, since there is no minimum support requirement.
There is really no reason for write-in candidates in the general election, since the purpose of the primary is to determine which two candidates the voters make their final choice between, and the intent is to ensure majority support for the elected official.
California should really be seen as being comparable to Hawaii (as upheld in Takashi) since it will make ballot qualification so trivial that there really is no reason for write-in votes in November.
Washington does permit write-in votes in both the primary and the general election, but it also has a sore loser provision. A candidate who is defeated in the primary, even as a write-in candidate, may not run as a write-in candidate in November.
While Texas does permit write-in votes, it does not permit write-in votes in runoffs (which are similar to the Top 2 election except they are contingent on the leading candidate not having a majority). In addition, Texas does not permit a losing candidate in a primary to file as a write-in candidate for the same office in the general election.
California might also want to make adjustments in cases where there is a nomination vacancy after the primary. The provision in SB 6 is for the 3rd place finisher to advance to the general election ballot. In Nebraska Top 2 legislative elections, there is a provision for petitioning to get on the ballot in cases where there would otherwise only be one candidate on the general election ballot.
In 1982, Ron Packard lost the Republican primary, but then defeated the Republican and Democratic nominees as a write-in candidate. Under current California law, he would be ineligible under the sore loser provisions to run as an independent candidate. It is unclear whether he would be able to run as write-in candidate. Based on the term limits cases, requiring a candidate to run as a write-in candidate could be seen as a backdoor way of introducing another qualification. If challenged, California might very well impose the sore-loser provision to write-in candidates as well.
Given the nature of his district (he had 75% support in 1984 against a Democratic and a Libertarian opponent), Packard might well have qualified for the general election under the Top 2 system.
And I leave it up to you to explain why a candidate who only had 36% support should be elected, simply because it is slightly more than other candidates.
In 1930, Charles Curry had been nominated as the candidate of both the Republican and Democratic parties. In fact, candidates in 10 of 11 districts were unopposed, 9 had been cross-nominated by both parties; and the 10th had been nominated only by the Republicans, with no Democratic opposition. The Republican won the only contested seat, with 75% of the vote.
Charles Curry died on October 10, 1930, so the election was conducted as a write-in campaign for all candidates, Curry’s son, Charles Curry, Jr. was elected in November. Since no candidates were on the ballot, there was no party designation. But the winner and 2nd place candidate were seen as being Republicans.
Under a modern election schedule, it would have been impossible for the write-in candidates to file that late (and California does not count write-in votes of non-filing candidates). Instead, what would have likely happened is that Charles Curry (Sr) would have been “elected”, the seat declared vacant, and a proper special election held. Under “Top 2”, special elections would be held under the format that Californians are already familiar, but without the silliness of party nominations if no candidate receives a majority of the total vote. Instead the Top 2 candidates would face off in a runoff.
And of course, under Top 2, voters in 10 of 11 districts would not have a choice of 1. Parties would of course be free to cross-endorse candidates.
In some countries, for example, Britain, if a candidate dies immediately prior to an election, the election (in that constituency only in case of a general election) is delayed so that new nominations may be made. That would be a better solution than having to use write-in voting.
I couldn’t find an example of write-in election in 1946. The results on the Clerk of the House do indicate certain candidates were write-in candidates, but none were close to election. What was the district number?
The 1946 election was for the 3-month short term for U.S. Senate.
Have candidates / incumbents choose replacements if vacancies happen during an election or a term of office.
NO more rigged special vacancy elections.
SB 6 recasts party registration from “declaration of intent to affiliate with the party at the next primary” to “disclosure of preference for a party”. Under current law, a voter may register with an unqualified party; or if a party becomes unqualified, the party registration remains the same. Your party registration can only change if you change it, your voter registration is cancelled, or you live in Sacramento County.
SB 6 does not change this. So a voter is quite free to
disclose a preference for the Constitution, Reform, SalmonYoga, Grange, or Socialist parties. If that voter runs for office, he may have the preference that was disclosed on his registration appear on the ballot. So in a certain sense, ballot access is much easier, though of course a candidate who prefers the SalmonYoga party is not the nominee of that party.
Since no party would be qualified to nominate candidates, there would be relatively few items still associated with being a “qualified” party:
(1) Electing precinct officers at the primary. Most of California’s regulation of the internal organization of political parties is probably unconstitutional anyway, so most parties would just as soon not have random voters voting for party officers anyway. An “unqualified” party could simply let members elect officers at party meetings or conventions.
It really doesn’t seem that the ability of a party to garner votes for some statewide office should determine whether it should elect its officers at a primary. In this case, I would think that number of registrants is the key factor. But it would probably be best to completely deregulate internal affairs of political parties, beyond a simple requirement to publish their rules and to have a republican form of governance.
(2) Holding presidential primaries. Many parties ignore the result of these anyway. For example, Hillary Clinton and Don Grundmann received the most votes in the Democratic and American Independent presidential preference primaries, yet were denied a place on the ballot by the internal machinations of their respective parties.
Unqualified parties are still free to participate in the nomination activities of their national parties, though they would have to qualify a presidential candidate as an independent candidate.
It would make more sense to base the qualification to hold a presidential primary on past success in the presidential election, or perhaps past participation in the party’s presidential primary (ie so long as the presidential primary is quorate, the party could continue to hold presidential primaries).
(3) Place a presidential nominee on the ballot. Since this is the main remaining authority associated with qualified parties, it would make more sense to base continued ballot access for presidential candidates on votes received for the presidential candidate.
Alternatively, the qualification standard for independent candidacies could be reduced. It would be hard to rationalize requiring 65 signatures to run for governor or US Senator, and 170,000+ to run for president in California.
(4) Ability to include a sample ballot with official party endorsements distributed with the voter’s pamphlet. A county may either distribute the sample ballot to party registrants, or a combined sample ballot for all parties sent to all voters.
Unqualified parties may make endorsements, but would have to arrange for distribution and publishing.
(5) Ability to include a contribution envelope or one page letter for distribution to registrants with the party. The cost of materials is borne by the party.
Most items related to “qualified” parties have nothing to do with Top 2, and it might even have been considered non-germane to include changes to qualification standards in SB 6. There is certainly nothing that would prevent California from reducing the qualifying standards for the presidential ballot. But since Top 2 does not apply to presidential elections, it would be inappropriate to do so in Top 2 legislation. The same is true for elections of party officers.
That leaves the ability to have party endorsements published in the sample ballot. Since these only need be distributed to party registrants, it might be feasible to greatly reduce the qualification standard. The mailing cost is the same, the distribution cost might be higher by a small amount – but having 15 different ballots distributed to registrants of 15 different parties that much more difficult than registrants of the existing 6 parties.
#1 California permits registration in “unqualified parties” and does not disaffiliate voters except when requested by the voter, or when the voter registration is purged.
A candidate may have his party preference that he had previously disclosed on his voter registration shown on the ballot.
“qualified party” really has no meaning with respect to Top 2 elections, other than qualified parties can have a sample ballot with party endorsements distributed to voters along with the voter’s pamphlet.
In California, a candidate (who agrees to spending limits) may purchase space for a candidate statement that appears in the voter’s guide. In 2006, all 4 minor party candidates for governor did so. There were no statements from the Republican and Democratic candidates, so presumably they did not agree to spending limits.
So let’s say that the Libertarian party did lose its “qualified” status. A candidate for governor would need 65 signatures to qualify for the ballot. His preference for the Libertarian Party would be shown on the ballot. He could purchase a candidate statement (just like Libertarian Al Oliver did in 2006). He could certainly include an official endorsement from the Libertarian party in his official statement.
#3 Only two partisan offices would remain, that for President/Vice President and those for party officers.
A voter-nominated office is not a partisan office.
Would there still be write in ability for President in California? Would a Presidential candidate be able to run for an unqualified party and be on ballot?
Jim @9:
So let’s say that the Libertarian party did lose its “qualified†status. A candidate for governor would need 65 signatures to qualify for the ballot. His preference for the Libertarian Party would be shown on the ballot. He could purchase a candidate statement (just like Libertarian Al Oliver did in 2006). He could certainly include an official endorsement from the Libertarian party in his official statement.
But you miss two glaring and important points.
First, those 65 sigs are for the primary only. If that candidate misses the cut, they don’t make the final, and ballot access for minor parties is kept by getting 2% in the general election for statewide office, not the primary. This is how top-two kills minor parties.
Second, there is NOTHING stopping an interloper from declaring a minor party preference and then deliberately undermining that party as outlined in the first point by being so outlandish and insane that they wouldn’t get the votes needed. Imagine a Libertarian for increased taxes or the police state, or a Green for repealing pollution controls. Top-two removes political party candidate vetting and makes it a free-for-all, which puts the parties’ reputations and very existence in the risky hands of someone claiming allegiance but really isn’t. NO, THANKS!
#6. So Hiram Johnson dies in August 1945, with 17 months remaining on his term. William Knowland is appointed to serve in the Senate.
In November 1946 at the general election, Knowland is elected to a full term (1947-1953) in a conventional election in which over 3 million votes were cast.
On the same day, he is also elected for the final 2 months of Johnson’s term by write-in in a special election in which about 500,000 votes were cast.
So California waited for 15 months to hold a special election and didn’t have a mechanism in place for candidates to file. Johnson had been the only popularly elected senator for this seat, so perhaps California had never prepared for the contingency.
(1) It was not a general election, but a special election.
(2) Write-in votes are permitted in special elections under the Top 2 proposal, since they are similar to a primary in function.
(3) California permits regular filing for special elections to fill vacancies. In fact, if the special election is held coincident with a general election, there is also a primary (see Dianne Feinstein’s election in 1992, following Pete Wilson’s resignation to become governor.)
(4) California law now explicitly provides that an appointed senator may serve out a term that ends in January following the next general election. So if a case like 1946 occurred now, Knowland would have served 17 months as an appointed senator, and there would have been no special election.
#11 The Top 2 would not change the procedures for presidential elections.
Presidential preference primaries would be held for qualified parties, and they would be able to place their nominee on the November ballot.
Independent candidates may file by petition, though the petition standard is quite high (170,000+). My reading is that a slate of independent electors need not be pledged to a presidential candidate.
Pledged slates of electors may file as write-in candidates. Note that it is the electors who file, not the candidate; and in 2008 there was a write-in slate pledged to Ron Paul, as well as Frank Moore, James Harris, and Chuck Baldwin.
#12. There would be no elections coincident with a gubernatorial election that a party has a candidate representing it. So none of the currently 6 qualified parties would be able to use the election performance standard to maintain their qualification, and would instead need to maintain their registration levels.
Since the main powers of a “qualified party” will primarily be related to presidential elections, it would make sense to switch the qualification standard to be based on presidential elections.
In addition, a petitioning standard of 170,000+ for president and 65 for governor or US senator could hard to defend in court.
The interloper would have to have disclosed his preference for the Libertarian Party, and his registration history for the past 10 years would be public. The Libertarian party would be able to make endorsements and have a sample ballot distributed to its registrants prior to the primary.
It should be noted that California voters also defeated a “top two” proposal for state offices in October 1915.
Proposition 62, the November 2004 measure, lost in 51 of the state’s 58 counties. Like the 2010 proposal, it included congressional as well as state offices.
#8 is wrong when it says a registered member of an unqualified party may have his or her party name on any California ballot under “top-two”. California election code section 338 defines “party” to be a qualified party. The top-two ballot measure does not change that definition.
I really liked the comparison between the 2004 election and the 2010 election. This proposition is so dangerous that I wrote the article below for a local paper.
Be aware Californians, on your June 8, 2010, direct primary ballot will be a very dangerous proposition which appears very harmless. It is called the Top Two Candidates Open Primary. I had always thought the purpose of a primary was to allow each political party to select who would run in the general election against the winners of the other parties. However, the purpose of this proposition is to put all candidates, for the same office on the same ballot. Here’s the killer: only the two candidates with the highest vote totals for each office, regardless of party preference, would then compete for the office at the ensuing general election. This will probably result in one Democratic and one Republican candidate for each office. However, in some cases it will be two Democratic candidates and in other cases it will result in two Republican candidates. Voters will be denied the opportunity to vote in the general election for a third party candidate. The passage of the Top Two proposition will reduce your choices in the general election to only two.
In order for a third party to remain qualified as a recognized political party in California it must receive two percent of the vote for one of its statewide candidates in a gubernatorial general election. This sounds like a small amount of votes, but depending on voter participation, that is between 150,000 and a quarter million votes. Peace and Freedom Party has met that test every time with the exception of 1998 when the party was removed from the ballot. It took a great deal of energy and money to carry out a registration drive that resulted in Peace and Freedom Party being the only party in the history of California to re-qualify for that state’s ballot. Since no third party candidate will come in first or second for a statewide office, it would be impossible to obtain the votes necessary in the general election to remain a ballot qualified party. If a party fails to obtain the votes needed it can still qualify to run candidates in the “voter-nominated†primary by having 88,991 people registered to vote with the party. However, except for presidential candidates, it would be a real fluke for any third party candidate to be on future general election ballots.
We know that over 90% of the districts are rigged, legally rigged, by gerrymandering them into safe one party districts. So the question becomes “if a candidate receives an absolute majority of the vote in the primary why do we need an expensive runoff election?†For that matter, by using an instant runoff voting (IRV) method, where voters would simply rank the candidates 1, 2, 3… in their order of preference, an absolute majority would be obtained with only one election. With IRV no expensive general election is needed. IRV would be an ideal way to elect people to statewide offices where only one person is to be elected.
On the other hand, Peace and Freedom Party does not advocate any electoral system for State Legislature and U. S. House of Representatives except for one that allows each political party to be represented in direct proportion to the number of votes received in the general election. If we had a proportional system of representation, Peace and Freedom Party would have several people elected to partisan office.
We are fighting for our lives so to speak. We need to educate people about this bad proposition and build strong opposition to it now. If we were voting today it would pass. If it passes Peace and Freedom Party will lose its ballot status. Please help us spread the word about this wolf in sheep’s clothing.
#17 Voters will be voting on the constitutional amendment (SCA 4), not on SB 6. To the extent that there is a conflict between existing statute as amended by SB 6 and the California Constitution, the constitution wins.
SCA 4 says that existing party registrations will be converted to disclosure of party preference, and states that candidates have the right to have their party preference appear on the ballot for voter-nominated offices. Clearly under existing California law, voters have a right to declare a party affiliation with a not “qualified” party. In fact, California requires (we won’t even consider the 10% petition as a viable possibility) voters to affiliate with a non-qualified party in order for the party to be qualified, and retains affiliation in previous qualified parties (with the exception of Sacramento County).
Under SCA 6, a voter, regardless of his party preference may vote for any candidate. Candidates have a right to express a party preference on the ballot. It would be absurd to say that I may vote for any candidate even if I had expressed a preference for the SalmonYoga party, and yet restrict candidates who have also expressed a preference for the SalmonYoga party from having that preference appear on the ballot. And SCA 6 provides the authority for parties to organize to support candidates. To limit certain candidates from expressing a preference for a political party would be a restriction on the formation of political parties.
Your interpretation would be as likely to be upheld as a statute that provided a candidate’s name could be printed on the ballot, but not have a box for voting.
Section 338 defines a party as one that is qualified to participate in a primary. But SB 6 makes a clear distinction between partisan primaries and primaries for voter-nominated offices. In fact it adds Section 337 with that specific definition. It is the clear intent of SB 6 that there are NO qualified parties with respect to voter-nominated offices, beyond the ability to include a sample ballot in the voter’s pamphlet.
Further, SB 6 does not provide that a candidate may have “his party’s name on the ballot” but rather a statement of his party preference that he had disclosed on his voter registration. And as we have seen, California permits a disclosure of a preference for a “non-qualified” party.
In addition please read Section 64 of SB 6. Your interpretations is NOT the broad construal of the intent of legislature or of the People in passing SCA 4.
Thus even if your interpretation of the interaction between SB 6 and section 338 is correct, it would be in violation of the Calfornia Constitution. Clearly a faulty implementation of the constitution in statute will not be upheld.
Jim Riley, I hope you will tell us all what state you live in. Assuming it is not Washington or California, are you active in persuading your state to adopt “top-two”? Or are you happy with your own state’s system, whatever it may be??
There are 53 congressional seats, 40 senate seats, and 80 assembly seats in California. The last elections that they were contested, in 2008 for Congress and the Assembly; 2006 and 2008 for the senate, there were 49 Libertarian candidates (28%); 10 Peace & Freedom candidates (6%); 8 Green candidates (5%) and American Independent candidates (1%).
There were no contested primaries for any of these 4 parties. A registrant with any of these parties who voted in the primary, would either be given a ballot with one candidate, or no candidates. If they asked about it, they might be told that if they wanted to vote, they had to register as a Republican or Democrat. There is a distinct incentive to change one’s registration from the minor party.
Under the Top 2 proposal, qualified parties will be able to endorse candidates, and have those endorsements included with a sample ballot distributed with the Voter’s Pamphlet. With over half of Californians voting my mail, most probably consult the pamphlet as they prepare their ballot.
Even though a party might not have a candidate for a particular district or office, they can still endorse another candidates, whether from another major party, a minor party, or an independent. There is less of an incentive to quite a minor party.
#21: If a registrant of a minor party wants to have a choice on primary day, he should help to recruit one or more additional candidate(s) from his party to run.
“… they might be told that if they wanted to vote, they had to register as a Republican or Democrat.”
With the exception of the Republican presidential primary, California independents (“decline to state”) had their choice in 2008 of the Democratic, the Republican, or the American Independent primary.
It’s true that the “top two” lets voters choose among all the candidates in the preliminary round. But the price they pay is that (1) they never have more than two choices per office in the final, deciding election, and (2) minor party and independent candidates almost never reach the final election.
#20: Jim Riley is a Texan who, in answer to a previous question from me on this site, said that he has never contacted any state legislators about his beloved “top two” (Texas, of course, does not have the initiative process). I suggested to Jim that he take a little break from posting pro-“top two” essays on this site and tell at least one legislator about the glories of the “top two.”
Texas, to be sure, has state-mandated open primaries, in which each voter picks a party on primary day. And that state is next door to Louisiana, which has used the “top two” to elect its state officials since 1975.
#22 If you go to the sandwich shop and none of the sandwiches have any meat (or even tofu), you will go elsewhere. We are not talking about two choices, but even one choice.
In 2008, if you were an American Independent voter, you could only vote in one congressional district; P&F voters could only vote in 5 congressional districts, 2 senate districts, and 3 assembly districts; Green voters, 5 congressional districts, 2 senate districts, and 1 assmembly district. Even Libertarians were restricted to 20 (of 53) congressional districts; 14 of 20 senate districts; and 15 of 80 assembly districts.
The number of minor party primary candidates for Congress and the legislature has steadily declined over the last decade:
1998: 157 (blanket primary)
2000: 208 (blanket primary)
Jones decision August 2000.
2002: 103
2004: 97
2006: 78
2008: 68
In the June 2008 primary, 32.8% of Republicans and 29.7% of Democratics voted; while only 23.6% of Greens; 20.8% Libertarians; 16.5 of American Indedepents; and 9.4% of P&F’ers voted. Only 20.3% of DTS voters participated.
Green Party registration is down 31% from its peak, and if you check registration data coming into the primaries last year, there appears to have been deliberate re-registration to escape the party. P&F registration is down 25% from when they requalified. Libertarians are down 13%, perhaps due to the fact that they do run more candidates. The Reform party lost 1/3 of its voters and its qualification in the two years following Jones.
If Jones were properly styled, it would known as Democratic Party against the Voters of California
#23: California Democratic Party v. Jones was decided on June 26, 2000. The Republican, Libertarian, and Peace and Freedom parties were also plaintiffs in that suit.
Californians who register into minor parties know what the possible consequences will be (since you don’t give a damn about political parties, you obviously have a hard time understanding this). They could change their registration to “decline to state” as late as 15 days prior to the primaries and be eligible to vote in either the Democratic, the Republican, or the American Independent primary.
The statistics you state indicate that the minor parties need to do a better job of recruiting candidates. Do you actually think that your cherished “top two” will solve that problem? To the contrary, the “top two” will, sooner or later, cause all or most of the minor parties to cease to exist.
#24. June rather than August, you are correct. But in any case, it was after the blanket primary in March 2000. The Republican were in on the lawsuit as well. Just like the case in Arizona, it was not in the best interests of the minor parties.
Californians who register into parties probably do not know what the consequences are. In the run up to the general election there are big registration drives and every party gains voters. But there is no meaning to being a party member in the general election.
Then at the next primary they discover that there is nobody to vote for. The only people to vote for are in the non-partisan local offices. The more clever among them will switch to DTS or Republican or Democratic. But that isn’t going to help the minor party registration numbers, is it?
Ultimately, the parties end up simply trying to keep on the ballot by getting enough support in the down ballot statewide races to keep on the ballot. But what is the point if no one runs for Congress or the legislature?
The statistics show a definite correlation between elimination of the blanket primary and the number of candidates and party registrants. The partisan primary scheme is not helping the minor parties.
Under Top 2, party registrants would be able to support party candidates, and also participate in the election for other offices. The current election format skews the electorate for local offices and referendums, since independents and minor party registrants are less likely to vote in the partisan primaries.
I’m more interested in voters participating in elections than political parties. You appear to defer to the political parties.
But political parties simply are unnecessary for the mediation of elections. Top 2 in no way prevents parties from recruiting candidates or supporting the election of candidates.