California “Top-Two” Proposal Compared to Washington State’s “Top-Two” Law

Washington’s “top-two” law, in effect since 2008, is quite similar to the California “top-two” proposal that will be on the ballot in June 2010, but there are significant differences. In each instance, the Washington state version is significantly kinder to minor parties than the California proposal.

1. Washington state lets anyone running for office choose any ballot label he or she desires. For example, in Washington state a candidate for the legislature appeared on the primary ballot with “Prefers Salmon Yoga Party”, and in 2009 a candidate for County Office filed and requested the label “Prefers Grange Party”.

By contrast, the California proposal only lets candidates “prefer” the name of a qualified party. This interpretation was confirmed on October 19 by former State Senator Steve Peace, a leader in the drive to pass “top-two.” He consulted with the attorneys who drafted the California proposal.

2. Washington state will count write-ins in the general election if the vote-counting computers indicate a write-in candidate could possibly have outpolled the candidates on the November ballot. By contrast, the California proposal says write-ins at general elections are never to be counted.

3. Washington state’s primary is in late August, and California’s primary is in early June. The Washington system allows for candidates to enter the race as late as May 15 of an election year. By contrast, California’s proposal does not allow anyone to appear on a ballot unless that person enters the race by March 12 (except, theoretically, one could enter the California first round in May as a write-in, and conceivably might place first or second and thereby appear on the November ballot, but this is very unlikely). Each election year’s calendar is slightly different; those particular dates are the ones that would apply in 2010.

If the California proposal passes, California, Texas and Nevada would be the only states in which all practical routes to have one’s name printed on a ballot would be closed off by mid-March. Furthermore, Texas and 43 other states would still permit someone to enter a general election as a write-in candidate, so one could argue that California would be one of only 6 states that closes the door to any candidacy that is announced later than the summer (the earliest state deadline to be a qualified write-in candidate in November is Florida’s July 20 deadline).

4. “Top-two” does not affect presidential elections, but the California “top-two” proposal indirectly makes it more difficult for minor parties to place a presidential candidate on the November ballot. Because, under the California proposal, parties would no longer have nominees for state office or for U.S. Senate, the existing law that lets a party remain on the ballot if it polls 2% for any statewide race in a midterm year would effectively cease to exist. Therefore, all parties would go off the ballot, but those with registration of at least 1% of the last gubernatorial vote would instantly re-qualify. 1% of the last gubernatorial vote will probably be 100,000 registered members, which means the Peace & Freedom Party (which has fewer than 60,000 registered voters) would almost certainly lose its qualified status, and no longer be able to place a presidential candidate on the ballot. Peace & Freedom Party nominated Ralph Nader for president in California in 2008. If “top-two” had been in effect in 2008, this means it is overwhelmingly likely that Nader would not have been on ballot in California in 2008. The independent petition requirement in 2008 for a presidential candidate, 158,372, was so severe that Nader could not have qualified.

By contrast, Washington state lets any independent presidential candidate, or the presidential candidate of an unqualified party, appear on the ballot with a petition of 1,000 names, due in August.

One final contrast: Washington state supporters of the “top-two” system are honest enough to use that label. California supporters insist on calling the idea the “open primary”, even though the California proposal has nothing in common with the standard open primary used in over 20 states.


California “Top-Two” Proposal Compared to Washington State’s “Top-Two” Law — 9 Comments

  1. Let’s cut through the BS.

    Benito Mussolini would fully approve of this system as a vital first step.

  2. P.R. and nonpartisan A.V.

    NO party hack caucuses, primaries and conventions are needed.

  3. Gary is correct. The top-two system is very anti-democratic.

    The only hope for the Peace and Freedom Party of California, though (in the long run), is for it to increase its registration. One of the best ways to do that would be for the Party to affiliate with a national Party – so that it would have broader appeal. That would help it to build upon the good vote totals of the Nader-Gonzalez campaign of 2008. The Party should wait until 2016 to run another presidential campaign, in any event. It would be ulra-leftist and counter-revolutionary for the Party to help the Republicans by going against the Obama-Biden Administration.

  4. affiliating with another (national ) party wont mean they get more votes, inherently. revolution is situational, stalinist. (in partial jest)

  5. 1. Voters will be voting on the Constitutional Amendment, not the implementing legislation contained in SB 6. The constitution takes precedence over statutory law.

    Section (e) says, “nothing in this act shall restrict the right of individuals to join or organize into political parties or in any way restrict the right of private association of political parties.”

    The right of political association extends far beyond “qualified” political parties. To limit candidates to having a preference for a “qualified” political party would restrict the right of political association. A statute that tried to impose such a limit would violate the constitution.

    Section (c) “existing voter registrations, which specify a political party affiliation, shall be deemed
    to have disclosed that party as the voter’s political party preference unless a new affidavit of registration is filed.”

    Under current California law, a voter may register in an unqualified party. In fact, the system for qualifying a new party is based on voters first registering in an unqualified party. While there is a provision for a petition with 10% of voters establishing a new party, this is quite unlikely to happen. Courts have taken a dim view at procedures that virtually prevent new challengers to established parties.

    Under current California law, a voter’s party registration can be changed in only two ways: (1) The voter changes it; (2) The voter’s registration is removed entirely.

    SB 6, while it recasts voter registration from a “declaration of intent to affiliate with the party at the next primary” to a “disclosure of party preference” makes absolutely no substantive changes in the ability to establish or maintain party registration in an unqualified party.

    SB 6 adds the following definition “300.5. ‘Affiliated with a political party’ as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or her affidavit of registration.”

    And says that a candidate may have the party preference that he has disclosed on his voter registration.

    NO party may make a nomination for a voter-nominated office. The party preference expressed on the ballot for a voter-nominated office ABSOLUTELY IN NO WAY indicates nomination by that party. It would be nonsensical to suggest that one could only express a preference for parties that may not nominate.

    California has the initiative process, so that even if the courts incorrectly interpret the initiative, it can be corrected. In Washington State, Secretary of State last legislative session proposed cleanup legislation for the Top 2 that the Forces of FUD appear to have blocked. It would provide for two levels of party qualification. One would permit 100 persons establish a party by petition. Candidates would be permitted to express a preference for such an actual party. There would be a higher standard for parties associated with nomination of presidential candidates and election of party offices (which in Washington would be conducted in conjunction with the general election and not the primary). California might do well to emulate such a two tiered approach. Because of California’s party registration scheme, it may easier to implement in California.

    There is one aspect of qualified parties that is associated with qualified parties. This is the ability of qualified parties to send a sample ballot to party registrants along with the Voter’s Pamphlet. With ever increasing numbers of California voters registering as permanent by mail voters, this provides a direct way to communicate party endorsements to voters, in a way which is quite likely to be used while voters fill in their ballot. Note that this will also effectively provide a form of fusion or at least cross-endorsement, without the silliness practiced in New York or South Carolina. If there were no candidate who had expressed a preference for a qualified party running in the primary (or even if there were), the qualified party could still recommend candidate(s) which the party supports.

    This is something that is clearly superior to the system used in Washington State.

  6. 2. Washington takes a very libertarian view with regard to write-in votes. However it will only qualify a candidate for the Top 2 election if they receive 1% of the vote. In SOS Reed’s cleanup legislation this would have increased to 2%. There were numerous races with one declared candidate on the ballot, no declared write-in candidates, and more than 1% write-in votes. These write-in ballots should probably have been examined to see if there were 1% of the vote for any person even though there were no write-in declarations. Two percent may be enough to avoid counting random doodlings on the ballot, but permit a declared write-in candidate from getting on the ballot.

    California on the other hand requires a declaration from a write-in candidate for the vote to be counted. But it sets no percentage limit for any candidate who is either on the ballot or a write-in candidate to qualify for the November ballot. Under this system, Senator Maldonado would have had an on ballot opponent this past November.

    While Washington permits write-in votes in both the primary and the general election, it does apply sore loser restriction in all cases. That is, an on-ballot candidate who fails to finish in the Top 2, may not run as a write-in candidate in the November election, and any votes cast for such a person are void. And if a declared write-in candidate fails to qualify for the Top 2, they may not declare as a write-in candidate for the November election.

    The inability of a latecomer to file as a write-in for the Top 2 election is not a particular burden, given the purposes of winnowing the field to TWO.

    The provision restricting write-in candidacies in the general election is in statute and can be changed by the legislature. In particular, California may wish to examine how Nebraska handles nomination vacancies for its Top 2 elections.

    The particular cases that Richard Winger has cited where a write-in candidate has been elected in California are not particularly relevant to Top 2.

    In 1930, Charles Curry (Sr) died less than a month before the election. Curry had been nominated by both Republican and Democratic parties and was the only candidate on the ballot. His son Charles Curry, Jr. was elected as a write-in candidate. If such a situation occurred today, and a deceased candidate were elected, it would be treated as a conventional vacancy, and filled by special election. Special elections under Top 2, will not be that much different than special elections in California (BTW, which look an awful lot like the blanket primary outlawed in Jones).

    In August 1945, the great Hiram Johnson died with 17 months remaining in his senate term, 15 months before the next general election. William Knowland was appointed by the governor to be senator. In November 1946, Knowland was elected for the full term beginning in January 1947. On the same date, he was elected in a write-in election for the final two months of the term that he had already served 15 months an appointee. Participation for the simultaneous special election was about 20% of the general election.

    Under current California law, a special election is not held to fill the final months on a Senate term, and special elections are held using conventional election procedures. See 1992, when Dianne Feinstein was elected to fill the vacancy caused by Pete Wilson’s resignation to become governor. Feinstein was nominated in June and elected in November, at the same time Barbara Boxer was nominated and elected to a full term.

    In 1982, Ronald Packard was defeated in the Republican primary for Congress. He then ran as a write-in candidate and was elected. Under current California law (and perhaps this was true then as well) he would be barred from formally filing as an independent candidate. It is possible that under a Top 2 system he might have qualified as a candidate for the general election in a heavily Republican district. In Washington, if he had not finished in the Top 2, he would not be permitted to run as a write-in.

    Linda Smith was elected to Congress from Washington in 1992, running as a write-in candidate in the blanket primary. Finishing as the leading Republican in the primary, she won election on the ballot in the general election. Under a Top 2 system, she would have qualified for the Top 2 ballot since she had the 2nd most number of votes in the primary.

  7. 3. The date of California’s primary is set by statute and may be changed. It was held in March of 2004. California conducts dozens of non-partisan elections coincident with its partisan primaries.

    For example, there was an election for Orange County Supervisor, 1st District contested among 4 candidates in March 2004, in which no candidate received a majority. The runoff was held 8 months later in November (California conducts its county elections using a “Top 2” format similar to that used in Louisiana, where a candidate with a majority may be elected in the primary. There is no provision for late ballot filings. IIUC, this Top 2 system has been used for over 90 years in California.

    While we may agree that it is moronic to hold a primary in March (or June) and a runoff in November, there is no reason to be unduly concerned about the possibility of additional on-ballot candidates in a non-partisan election Top 2, simply because for certain offices a candidate may formally express a preference for a political party, and in other offices he may not.

    There would probably be many write-in candidates in the primary qualifying for the Top 2 general election ballot, except for one simple fact – it is so trivial to file for office under Top 2 that any even marginally serious candidate would probably file for the office.

    But in situations where only one candidate files, a write-in candidate who finishes 2nd, with even 1 vote would be placed on the November ballot. And as the cases of Ron Packard and Linda Smith demonstrate it is not impossible for a write-in candidate to gain a large number of votes.

  8. “It would be ulra-leftist and counter-revolutionary for the Party to help the Republicans by going against the Obama-Biden Administration.”

    Phil, are you saying that it is revolutionary to not oppose the warmongers in the White House? That is the dumbest thing I’ve ever heard. Obama is the new face of the American Empire and he’s raised more corporate dollars than any Republican ever has.

  9. 4. In 2008, 4 of the 6 political parties did not place a candidate on the November ballot that the voters themselves said that they preferred in the February primary.

    Democratic voters preferred Hillary Clinton (a majority)
    American Independent voters preferred Don Grundmann (Alan Keyes was not even on the ballot).
    Green voters preferred Ralph Nader (by over a 2:1 margin over Cynthia McKinney).
    Libertarian voters preferred Christine Smith (Bob Barr was not on the ballot).

    Only the Republicans and Peace&Freedom parties honored the expressed preference of their partisans.

    It is fundamentally wrong to continue a system that denies the right of ALL citizens to choose who their government officials and representatives shall be, simply to prop up a system of presidential nomination that ignores who the voters say that they want to be President.

    Under Top 2, voters may be more likely to register with a party. Under the current system, a voter who registers with a minor party is limited to voting in a June primary in which most cases there are no candidates, and extremely rarely more than two. Since Jones, the number of minor party legislative candidates has steadily declined, as has minor party registration. Some voters may sign up for a minor party when they register to vote during mass registration drives prior to general elections. There are 6 boxes on the registration form and they check one. If they want to actually participate in a primary election, they will change their party registration (participation by registrants of 3rd parties and DTS voters in the primaries is much less than for Republicans or Democrats). If one examines Oregon voter registration totals, it appears that the Pacific Green Party lost 1/3 of its registrants prior to the 2008 primary in that State.

    Being a registrant of a minor party is practically of no utility to an ordinary voter in California. There are no functional minor party primaries for offices other than President, and the party elite ignore the expressed presidential preferences of the party registrants.

    Changing the effect of registration may actually increase the retention of registrants.

    The proposed constitutional changes do not take effect until January 1st, 2011. There will be a gubernatorial election in November 2010, at which time the 6 parties will have a chance to meet the 2% vote standard. If they do, they will be qualified for 2012 (presidential election) and 2014. This will provide almost 5 years to update the party qualification standards.

    The existing qualification standards may be subject to legal challenge. Under current law there are 3 ways for a party to qualify. (a) By petition with 10% of the gubernatorial vote, or around 870,000 signatures, a standard so much higher than any other as to be meaningless; (b) retaining registrants equivalent to 1% of the vote in the previous gubernatorial election (87,000); or (c) At a gubernatorial election, get 2% of the vote for a candidate of the party in an statewide vote.

    Since NO party will be able to meet standard (c), arguably California is increasing the qualifying standards for political parties, and would have to justify the change.

    If Californians truly want to make it easier for candidates to qualify for the presidential balott, they should do so directly.

    Richard Winger’s argument is essentially that 158,000 signatures is almost impossible signatures to get, so that California should retain some bizarre indirect system of qualification.

    The first part may indeed be true, after all, Ralph Nader only got 108,000 votes; Bob Barr 68,000; Alan Keyes 41,000 and Cynthia McKinney 38,000. It is significant that the candidate who actually got the most votes in his party’s primary in February got the most votes of any minor party candidate.

    But why should the opportunity to hold a presidential preference primary (whose results are ignored) and place a presidential candidate on the ballot be based on performance in some down ballot race?

    California should do something creative. Why not a open presidential primary? Have 55 elector candidates who have a common party preference qualify for the ballot along with the presidential candidate that they support by filing a petition with between 65 and 100 signatures, the same number as needed to qualify for any statewide office under Top 2. All voters may vote in the primary, and any candidate who receives 1% of the vote advances to the general election ballot. The electors may name their Vice Presidential choice later in the year.

    Require a majority vote in the presidential election, with any necessary runoff held in early December.

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