Author of California “Top-Two” Denies that Measure Will Injure Minor Parties

California State Senator Abel Maldonado, the author of the bill for a “top-two open primary”, is touring California, speaking to newspapers. The chief purpose of his travels around the state is to win newspaper support and publicity for his own bid to become California’s Lieutenant Governor. Governor Arnold Schwarzenegger has chosen Maldonado to fill the vacancy in that job. However, Maldonado cannot take the Lieutenant Governorship post unless both houses of the legislature vote to confirm him.

As Maldonado travels the state, the newspapers always mention that he is the author of the “top-two open primary” measure that the legislature put on the June 2010 ballot. For the first time, one of the newspaper stories about that measure has mentioned the charge that the measure injures minor parties. The San Luis Obispo Tribune, to its credit, asked Maldonado about this. See this story. It says, “Maldonado strongly denied that the two-tier election system he has proposed would undermine third parties like the Libertarian and Green Parties.”

It is quite possible that Senator Maldonado doesn’t even realize that his measure makes it substantially more difficult for a ballot-qualified party to remain on the ballot. No newspaper story has mentioned that aspect of the plan. Existing law says a ballot-qualified party is one that polled at least 2% of the vote for any of the 7 or 8 statewide races on the ballot in a midterm year (parties get a free ride in presidential election years). This is a fairly easy test. But under Maldonado’s proposal, no party would have nominees in midterm years. Therefore, the only way parties can remain on the ballot is by having registration of approximately 100,000 members, something that neither the Libertarian Party, nor the Peace and Freedom Party, now have.

It is also quite possible that Senator Maldonado doesn’t even know that his measure says that write-ins could never be counted, for Congress and state office, in November. The irony is that both the write-in restriction, and the increased difficulty for parties to remain ballot-qualified, were completely unnecessary for the “top-two” measure. Neither of these characteristics was in Prop. 62, the earlier “top-two” measure, that was defeated by the voters in November 2004.


Comments

Author of California “Top-Two” Denies that Measure Will Injure Minor Parties — 34 Comments

  1. Every word in the M proposal was obviously gone over many times by an ARMY of lawyers.

    IF the top 2 stuff is passed, then what is the benefit of being a *ballot qualified* party — having taxpayers pay for party hack primary stuff ???

  2. Maldonado is a liar and a idiot. Under his own “top two” system he would have come in 4th place in his 2006 State Controller race and be eliminated. Plus the November run-off would have been between two Democrats only.

    RE-NAME: The “top two” is really a system of two general elections. A primary is for parties to select their candidates for the general election. The top two is a general election that PREVENTS parties from selecting a general election candidate and PREVENTS them from even appearing on the November ballot.

  3. As to #1, the proposal was not gone over many times by an army of lawyers. That is because it was passed in the middle of the night on February 19. It was introduced at 3 a.m. and passed in both houses by 6 a.m. People who wrote it had an initiative to copy from, but even that hadn’t been written very carefully.

  4. How many lawyers worked on the initiative used to produce the M proposal ???

    What part of the U.S.A. Constitution says that the party hack candidates of ANY party, large or small, have a constitutional right to have their names on official general election ballots with the party hack label involved ???

    What has happened to the 2008 top 2 WA State opinion by the Supremes ???

    What part of the M proposal needs an army of judges to determine what it says or means ???

  5. #2: “The “top two” is really a system of two general elections.”

    BINGO!! A party may endorse/nominate a candidate for any or all offices in advance of the first round of the “top two.” But there’s no legal way to stop other candidates from the same party from running in the “top two.” And of course, there’s no assurance that the party will have a candidate in the final, deciding election.

    #4: “What has happened to the 2008 top 2 WA State opinion by the Supremes ???”

    The Washington “top two” is being challenged on other grounds, and there will be a trial in US district court in October 2010. This adds to the uncertainty facing the California “top two” ballot measure in June 2010.

  6. #2 A “primary” election is simply the first election in a two stage election process. While in some cases it is contested on a partisan basis this is not necessarily so. Bonus points if you can figure out why the adjective “primary” is applied to a first election.

    It is conjecture whether Abel Maldonado would have finished 4th in an open primary for Controller, or even second among Republican candidates. As you may not know, the 2006 primary was a semi-closed primary. Democrats could only vote in the Democratic primary, Republicans could only vote in the Republican primary. DTS voters could choose one of those primaries (plus that of the American Independent Party). But many would not, perhaps because they were not aware of that possibility, perhaps because they thought that they didn’t belong, perhaps because they thought that they would be required to become party members.

    To the extent that DTS voters chose a primary, they would have chosen the Democratic primary because it had contested races for the gubernatorial races. On the Republican side there was only token opposition to Governor Schwarzenegger, and only single senate candidate. Democrats would have also been drawn out by the primary contest.

    But once voters had chosen to vote at all or chosen which party primary, they would have been stuck in that party’s primary on down the ballot. So Democratic primary voters would have voted for one of the two Democrats. Maldonado might have been able to appeal to Democrats, particularly Hispanics, as well as independent voters. And there would have likely been more Republicans and independent voters participating as well.

    In any case, Maldonado despite having finished 4th among all candidates, received almost 8 times as many votes as the collective vote total of the Green, American Independent, Libertarian, and Peace&Freedom candidates. In fact, these 4 candidates who finished 8th, 9th, 10th, and 11th overall, together barely beat the 5th place Republican candidate.

  7. What Richard Winger does not mention is that Prop 62, would have lowered the standard for a party to remain qualified to 1/3 of 1%, but it would also have restricted “party” candidates to those affiliated with a qualified party.

    While he has in the past claimed that SB 6 would limit candidates to expressing a preference for a qualified party, rather than simply a party which they had disclosed a preference for on their registration affidavit, a comparison of SB 6 and Prop 62 convinces me that the two are in fact particularly distinguishable in that regard.

    Prop 62 added as Section 337.3 a definition of “Political Affiliation” to mean either a registration with a qualified party or “no party”. In effect “No Party” meant that a candidate was not affiliated with a qualified party. It then goes on to define a Voter-Nominated office as in which a candidate is identified by his (qualified) party affiliation.

    Prop 62 would have printed the party affiliation on the ballot, and explicitly referred to section 13105 which defines how the party of a party nominee is indicated on the ballot.

    Had Prop 62 passed, it might not have survived a facial challenge before the Supreme Court. Instead of Chief Justice Roberts expressing doubt that voters would not be confused as he had in the Washington case, he would look directly at the law and see that party affiliation would be identical to that shown for a party nominee, and that those party affiliation would be restricted to parties that heretofore had been the only parties qualified to make nomination.

    It appears that the Washington district court and the 9th Circuit had somewhat interpreted the Top 2 law as a way to circumvent Jones, rather than as the Supreme Court ruled, a variation of the election system that the Justice Scalia had described in Jones. In the case of Prop 62, such an interpretation may well have been right.

  8. Do you think Section 8606 as added by SB 6 would withstand a court challenge, given that it is a restriction on an individual right to vote; as written it is nonsensical (diagram the actual text); because the ballot will continue to have a write-in line (Section 13207); and that a write-in candidate can fully comply with Sections 8600-8604, the only sections he is capable of complying with.

    Note that Section 8605 is not a restriction on the counting of votes for a declared write-in candidate, but rather a definition of the effect of the number of votes that are counted.

    If we compare the structure of 8605 and 8606, we could conclude that 8606 is a restriction on the effect of the counted votes (that votes for a declared write-in candidate may be counted, but that under no circumstance could they result in the election of the write-in candidate.

    So we then have the right of a voter to cast a write-in vote; and for a candidate to campaign as a write-in candidate, subject only to the limitation that only if the candidate files as a write-in candidate will the votes be counted. Election officials are required to provide a space for write-in votes on ballots; and required to count votes cast for declared write-in candidates.

    But even if the number of such votes was the larger than those cast for any other candidate, the candidate could not be elected???

  9. Did Steve Peace (see BAN October 19, 2009) confirm that Prop 62 in 2004 was intended to restrict candidates to running as affiliates of qualified parties; or was he referring to SB 6?

    There is very specific language in Prop 62 that is not present in SB 6.

  10. Are the party hacks sweating bullets as June 2010 gets closer — like having the Union Army at the gates of Richmond, VA in April 1865 — about to destroy the EVIL slavery regimes ???

    The M proposal can be seen via —

    http://www.sos.ca.gov/elections/elections_j.htm

    The party hacks will write their predictable stuff in the anti- part of the voters guide.

    P.R. and nonpartisan A.V.

    NO primaries are needed — to put the party hacks OUT of their misery.

  11. Gary: A primary is for parties to select their candidates for the general election.

    Jim: A “primary” election is simply the first election in a two stage election process. While in some cases it is contested on a partisan basis this is not necessarily so.

    Unfortunately, these statements are about equally valid. Gary is right about the historical origin of the term, at least in the U.S. Jim is right about the way it is used today. That includes the way it is used in the California Government Code, as well as frequent usage in political science journals.

    I say “unfortunately” because such ambiguity always causes problems. In this case it obscures the very important difference between two-round runoff as a voting rule (a little better than plurality, not nearly as good as IRV), on the one hand, and nominating elections, on the other. We would be better off if “primary” meant “partisan primary” and only that. Alas, that is no longer the case.

  12. #11: You’re right, sadly. Jim’s definition is the bastardized version of a “primary,” but it’s nevertheless accepted. This is a social science, so it doesn’t require the kind of precise deinitions as, say, chemistry or physics.

    In some jurisdictions, a party primary is the first step of a potentially three-step process; there is a runoff (or second) primary when necessary (Georgia, which has runoff general elections, has a potentially four-step process).

    As has been noted, “primary” comes from a word meaning “first.” Thus “first primary” is redundant, and “second primary” is an oxymoron.

    Then there’s that SEXY term, “open primary.” There’s quite a list of systems that are called “open primaries”– which ain’t.

    The so-called “nonpartisan primary” came into vogue about 100 years ago. Prior to that, a “primary” was partisan by definition. When one mentions a “primary,” he now must specify whether it’s “partisan” or “nonpartisan.”

  13. #13 Georgia’s process turned out to be four steps in last year’s Senate election. There was the Democratic primary in which no one got a majority, the Democratic primary runoff, the general election in which Chambliss fell just short of 50%, and the runoff in December.

    The turnout for the primary runoff was 35% below that of the primary, and the turnout for the general runoff was 44% below that of the general. They would have been better off using IRV.

  14. #11 The adjective “primary” means first. Even if its first usage in political lingo was in “primary meeting” as a preliminary to a party convention and then “primary election” it has a very long usage with respect to nonpartisan elections as well. In terms of state-organized primaries, there have have been nonpartisan primaries for nearly as long as there have been partisan primaries.

  15. There is now speculation that, if this “Terrible Two” bill passes, the American Independent Party of California might be a prime target of the other smaller parties that will lose their ballot access (not counting the Green Party of California, yet, because it has enough registrants right now). It would not be difficult, actually, for a very organized Caucus of Activists to take over AIP-CA. Frankly, I am at a loss to understand why the Reform Party of California has not already tried that – since they no longer have ballot access.

  16. Phil Sawyer,
    Do you think that is what the Constitution Party is
    trying to do to the American Independent Party right now, with the running of C. Nightengale for
    Governor against the party regulars that affliated
    personally with the America’s Independent Party?
    It was on June 27, 2008 the AIP affliated with the
    America’s Independent Party of Fenton, Michigan.
    The Constitution Party has no current connection with the American Independent Party.

    Sincerely, Mark Seidenberg, Vice Chairman, American
    Independent Party

  17. I was in Imperial County two days ago and noted the
    AIP registration was up to 1082 electors while the
    Reform Party was down to 30 electors, with the Libertarian Party set at 171 electors.

    Sincerely, Mark Seidenberg, Vice Chairman, American
    Independent Party

  18. #15: Jim, what terminology do you propose to capture the difference between an election using two-round runoff (whether partisan or non-partisan) and a nominating election (whether one or two rounds) and a general election (whether one or two rounds)? Because of the history we are discussing here, voters are very confused about this.

  19. #19 P.R. and nonpartisan A.V.

    ONE election = THE election. Period.

    Mercy on the poor suffering voters in States having runoff party hack primaries and runoff general elections.

  20. #14: The turnout in Georgia’s December runoff for US senator was 54% of the November turnout. There was also a runoff for public service commissioner. In each race, a Libertarian got enough votes to prevent either major-party candidate from having a majority in November.

    The Georgia runoff general election, of course, is a by-product of Lester Maddox’s 1966 election as governor.

    #15: The direct primary originated with the Democrats of Crawford County, PA, in 1842. They used “primary meetings” to nominate their candidates for the general election.

  21. Mark Seidenberg Says:
    December 10th, 2009 at 9:48 am
    Phil Sawyer,
    Do you think that is what the Constitution Party is
    trying to do to the American Independent Party right now, with the running of C. Nightengale for
    Governor against the party regulars that affliated
    personally with the America’s Independent Party?
    It was on June 27, 2008 the AIP affliated with the
    America’s Independent Party of Fenton, Michigan.
    The Constitution Party has no current connection with the American Independent Party.

    Sincerely, Mark Seidenberg, Vice Chairman, American
    Independent Party

    Hi Mark,

    Well, I think that the Constitution Party people think that AIP-CA is still their party. If they get out organized, then it no longer will be.

  22. #9 North Carolina gives a number of options that cities may use for electing their officials:

    (1) The partisan primary and election method;

    Each party nominates candidate(s), there may also be independent candidates.

    (2) The nonpartisan primary and election method;

    This is a Top 2 election, though for multi-seat offices it is Top 2 X N (if there are 2 council seats elected at large, 4 candidates are nominated). IIRC, if fewer candidates file, the primary for the office can be cancelled.

    (3) The nonpartisan plurality method;

    There is neither primary or runoff, the candidate(s) who receive(s) the most votes are elected.

    (4) The nonpartisan election and runoff election method;

    If no candidate receives a majority, then the two leaders contest a runoff. There are also versions for multi-seat offices (for 2 member seats: two candidates can be elected, and no runoff held; one candidate can be elected, and a runoff held between the 2nd and 3rd place candidate for the alternative seat; or no candidate is elected, and the runoff is between the Top 4.

    NC is cited because they have clearly set these out as alternative formats.

    A primary is a preliminary election to reduce the number of candidates prior to the election. A runoff is an election conducted to determine a final winner after an election.

    Note that general is not distinct from primary, but rather from special elections. A general election is one in which offices in general are contested, or in which all or a significant share of legislative seats are contested. Where elections are of limited scope, other terms may be used (eg municipal, school (board), etc. It is quite possible to have primaries or runoffs with special elections.

    California currently uses a hybrid system for its legislative and congressional special elections, where the first election serves both as a special election, and a partisan blanket primary, in case a runoff is needed.

    Louisiana refers to its two elections as a primary and a general election. Their interpretation is that the general election is cancelled if a candidate receives a majority in the primary; rather than the conventional interpretation that a runoff is held if no candidate receives a majority.

    California currently has a partisan primary, followed by a general election (though of course non-partisan offices are on the “primary” ballot, where a runoff may be held in November).

    California would be switching to a voter-nominated primary.

  23. #21 The term “primary meeting” was used before 1842 and after 1842 to refer to a meeting prior to a convention. In some cases the primary meeting was to organize the convention, in other cases it was to elect delegates to a convention (the same as a precinct caucus in Iowa or a precinct convention in Texas). The usage of “primary meeting” was particularly prevalent in the Mid-Atlantic States.

    In Crawford County in 1842, Democrats gathered in township-based primary meetings and voted by ballot for nominations. Party officers from the townships would then take the results to the county “convention” where they were totaled to determine the party nominees. In a sense, the Crawford County primary meetings were akin to modern-day Virginia firehouse primaries, except partisans don’t have to stay for the whole meeting in order to vote in Virginia (in Crawford County, the meetings were from 3 to 6).

    Thus, what is significant about Crawford County was the manner in which they conducted their primary meetings.

    There was dissension over the use of direct voting on nominees in the party primary, with Democrats in some townships declaring that the general election was as good as the party meetings for settling party disputes.

    Takoma Park, Maryland presently uses what could be characterized as a non-partisan primary meeting for the purpose of making nominations for city office. This meeting could in no way be characterized as a primary election.

    This of course was long before the adoption of the Australian ballot and any possible State enforcement of the nomination process. Prior to the adoption of the Australian ballot, voters would simply write their choice of candidate on a piece of paper. Parties might print ballots as a “convenience” for voters – and would print them in distinctive colors so that voters might be identified. Party toughs might try to keep other parties from distributing their ballots to voters. A voter might be given a party ballot along with a free lunch, or glass of beer.

    Ballots might also be printed in newspapers, and depending on the partisan leanings of the paper might have some or another candidates omitted.

    The Australian Ballot was intended to permit all candidates to run freely and let voters make their choice in secret. When South Australia adopted the Australian Ballot, nominations required two signatures, that of the nominator and that of the seconder. The New York governor vetoed the first Australian ballot legislation in that State, arguing that it would interfere with the right of self-nomination where an individual could “nominate” and vote for any person he thought worthwhile. Advocates of the Australian Ballot discounted these concerns arguing that ballot qualification would be so minimal (IIRC, 15 signatures) that it would be no barrier at all.

    Once the Australian Ballot was adopted, the political parties went right back to work, granting automatic access to nominees of political parties, and limiting access for independent candidates or minor parties that might challenge them. In effect, the major parties used the States to print their ballots, and used State power to restrict challengers.

    Partisan and nonpartisan primaries under State auspices were adopted about the same time as the Australian ballot. They were an attempt to give control of the process by which voters elect their officers to the voters and not the party bosses.

    SB 6 provides that qualified parties may distribute sample ballots along with the Voter’s Pamphlet, that indicates which candidates they favor. There would be nothing that would prevent a party from using a primary meeting to determine which candidates the party favors.

  24. #21 Votes cast in the senate race in the runoff were 57% of those cast in the general election (4.4% fewer voters voted in the senate race than voted for president).

    Chambliss received 66% as many votes in the runoff as he did in the general election, Martin 52% as many.

  25. #24 Post your stuff on wiki — history of elections in the U.S.A. ???

    EVIL bad old days – NO secrecy of the ballot — party hacks watching how you vote — vote wrong — get purged — lose jobs, get harassed, etc.

  26. #24: The “Crawford County System” was the term for the direct primary until the late 1800s.

    In advance of the first round of the “top two,” a party may endorse/nominate candidate(s) by any method that it chooses. It may, at its own expense, even conduct a party primary. But there’s no legal way in the “top two” to prevent other candidates from that party from also running in the first round, and there’s no assurance that a party will have a candidate in the runoff. There’s also no assurance that the two runoff candidates won’t be from the same party.

    Another feature of the “top two” is that a national party and its state affiliate may support opposing candidates in the same election– as has happened in Louisiana.

    #25: The article that I saw said that the turnout in GA’s December 2008 runoff for US senator was 54% of the November turnout.

    #23: “California would be switching to a voter-nominated primary.”

    And I suppose that those who participate in party primaries are Martians??

  27. #27/25 That would be because the authors of the article were comparing the number of votes cast in the presidential election to the number of votes cast in the senatorial runoff.

    Or they might have been comparing turnout for the election, and ignoring that at least 4.4% of voters in the general election did not vote in the senatorial race.

    I used the results on the Georgia Secretary of State web site.

    #27/23 I don’t understand what your point is. #23 was discussing terminology. California would continue to hold a primary election in June (the date is set by law, it was held in March just a few years ago).

    But instead of a first election to choose party nominees; it would be to choose the nominees of the voters.

    #27/24 The “Crawford County System” was a way to conduct primary meetings and county conventions. Democratic organizations in other counties continued to use the primary meetings in townships to elect delegates to county conventions where nominations were actually made. Those delegates may or may not have been instructed to support particular candidates.

    Some township primary meetings in 1842 passed resolutions opposing the “Crawford County System” arguing that the general election was the best place for settling intra-party disputes.

    Under SCA 4/SB 6, parties could not “nominate” candidates, (ie they could not designate which candidates names appear on the ballot). They may endorse candidates, and the State would pay for the publication and dissemination of those endorsements to the voters prior to the election. They would not be restricted to endorsing members of the party. They could also provide material support in the primary, which political parties often decline to do.

    There should be no way to keep candidates from running for office assuming that they meet minimal qualifications.

    There should be no assurance that a party (or faction) has a candidate in the general election.

    There should be no assurance that there won’t be two candidates from the same party in the general election.

    You are identifying features of Top 2, not defects.

    The national and California Republican parties supported different presidential candidates in 1912. Are you lamenting the destruction of the Whigs?

  28. Suppose the “top-two” proposal said that only the candidate who received the most votes in the first round could appear on the November ballot? Would that be a case of a “vote-nominated” candidate enjoying his or her right to a relaxing general election? “Voter-nominated” begs the question, which voters? If I vote for a Libertarian in the first round, have I nominated that candidate? Why is it that aggregates of 30% of the voters are needed before a candidate can be considered “voter-nominated?”

  29. #29 “Suppose the “top-two” proposal said that only the candidate who received the most votes in the first round could appear on the November ballot?”

    It would be a misnomer to call a system in which only one candidate was nominated a “Top 2” system. I’m not sure why you ended your sentence with a question mark.

    “Would that be a case of a “vote-nominated” candidate enjoying his or her right to a relaxing general election?”

    Why do you suggest that a voter-nominated candidate has a right to a relaxing general election?

    ““Voter-nominated” begs the question, which voters?”

    The voters collectively, without regard to their party affiliation or that of the candidates. All voters may participate in both the primary and the general election.

    “If I vote for a Libertarian in the first round, have I nominated that candidate?”

    His party affiliation would not have anything to do with it. Since nomination is a collective activity, you could not individually nominate a candidate. You could vote for that person as part of the nomination process.

    “Why is it that aggregates of 30% of the voters are needed before a candidate can be considered “voter-nominated?””

    The standard of two candidates qualifying is somewhat arbitrary, but it does have the property that the general election will be decisive. If you have 3 candidates, then there is a possibility of a 3 candidates with around 30% of the vote. Justice Scalia in Jones used “two” and “whatever”, indicating that two is one possibility, but that a State might well choose another number.

    It is what Nebraska has used for its non-partisan primaries for the past 70-odd years, and it is what is used for most cities that use non-partisan primaries. When San Francisco first considered going away from plurality election (around 1970), they considered switching to a Top 2 primary system. They later switched to a runoff for mayor, and eventually applied it to other single-member offices.

    If I were choosing the standard, I might use something like 2 candidates if collectively they had 2/3 of the vote, 3 if they had 3/4, and in general N candidates if they had N/(N+1) share of the vote.

  30. #28: My point is that those who participate in party primaries are VOTERS.

    “But instead of a first election to choose party nominees; it would be to choose the nominees of the voters.”

    You have a strange definition for “nominees.” Suppose the parties decided to nominate candidates in advance of the first round of the “top two.” Would the top two vote-getters in the first round then be considered to be twice-nominated?

    The purpose of the first round of the “top two” is to winnow the field to two candidates. In their book Primary Elections, incidentally, Merriam and Overacker refer to this as a “double election.”

    “There should be no way to keep candidates from running for office assuming that they meet minimal qualifications.”

    Anyone who seeks a party’s nomination is indeed “running for office.” If you don’t believe it, ask Hillary Clinton or Mitt Romney.

    “There should be no assurance that a party… has a candidate in the general election.”

    Well, let’s see now. In all 50 states, each qualified party has the power to have a presidential candidate in the general election.

    In 49 states– all but Washington– each qualified party is authorized to have a candidate for the US Senate and each US House seat in the general election.

    In 48 states– all but Washington and Louisiana– each qualified party is empowered to have a candidate for all or most state offices in the general election.

    So if you’re going to reverse this trend, you’ve got one helluva job ahead of you.

    “There should be no assurance that there won’t be two candidates from the same party in the general election.”

    Why not? Again, given the numbers I’ve cited above, you’ve got a lot of work ahead of you (BTW, the second round of the “top two” is a runoff general election, but I digress).

    “You are identifying features of Top 2, not defects.”

    I’ve identified defective features of the “top two.”

    “The national and California Republican parties supported different presidential candidates in 1912. Are you lamenting the destruction of the Whigs?”

    Yes, and a Democrat won the 1912 presidential election, didn’t he? That’s what usually happens when a party is split in the general election– it loses.

    The Whigs went out of existence in the mid-1850s. What’s your point?

    I keep wondering, Jim, when you’re going to tell at least one member of the Texas legislature about the glories of your beloved “top two.” Don’t you think your fellow Texans have suffered under the yoke of party primaries long enough?

  31. #30: A series of federal court rulings has established that any candidate for the US Congress who has met a prior vote test of 5% must be listed on the ballot on the first Tuesday after the first Monday in November.

    This is why I predict that, if Washington state wants to keep using the “top two” for congressional elections, it will ultimately have to have the first round for those elections on the first Tuesday in November. If the state wants to have a runoff, that will have to come at a later date.

    The timing of congressional elections is one more defect in the California “top two” proposal.

    You keep referring to what Justice Scalia wrote about the “top two” in California Democratic Party v. Jones (2000). I would remind you that Scalia opposed the Washington state “top two” in the March 2008 ruling.

  32. Webster’s defines “primary election” as “a preliminary election in which voters directly nominate for office the candidates of their own party.”

    “voters… nominate…”

    Thus the winners of party primaries are indeed “voter-nominated” candidates.

  33. #31/28 “nominee” is someone that is named as a candidate for office. Under the Top 2 Open Primary, the voters as a whole, without regard to party, chooses 2 nominees, without regard to party.

    Here is the exact language that from SCA 4:

    “Nothing in this measure shall restrict the parties’ right to contribute to, endorse, or otherwise support a candidate for state elective or congressional office. Political parties may establish such procedures as they see fit to endorse or support candidates or otherwise participate in all elections, and they may informally “nominate” candidates for election to voter-nominated offices at a party convention or by whatever lawful mechanism they so choose, other than at state-conducted primary elections.”

    They may endorse or informally “nominate” candidates, but the State of California will not recognize that candidate as a “nominee” on the ballots published by the government.

    Remember that Dennis Kucinich was prevented from appearing on the ballot in Texas because he wouldn’t pledge to support the “nominee” of the Democratic party.

    SCA 4/SB 6 does not change the mechanism by which California appoints its presidential electors. But if California wanted to have the same candidates on the presidential ballot as other States, they could simply have an open presidential primary in which any candidate could run, and any candidate who received a certain percentage of the vote would appear on the November ballot.

    I contacted the gubernatorial candidates, but none has responded, and one of them even quit the race.

    #32. I have never seen a decision that was specific to congressional elections, and the decisions were all related to the qualification standard in which candidates qualified for the election on the basis of partisan nomination.

    Further, Judge Coughenour has dismissed the ballot access claims by the Libertarian and Republican parties.

    Scalia was writing for the majority in Jones In the Washington case, Justice Thomas writing for the Court wrote “Petitioners are correct that we assumed that the nonpartisan primary we described in Jones would be constitutional.”

    Note his use of “we”.

    #33 Webster’s definition is in incomplete. The winners of partisan primaries are “partisan-voter-nominated”. When you refer to the electorate as a whole, you don’t need to qualify it, as you do when you refer to a restricted subset of the voters.

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