Thomas D. Elias is a California journalist who has three times been nominated for a Pulitizer Prize. He has written two books, both of which have sold well. They are (1) The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It; and (2) The Simpson Trial in Black and White.
Elias writes a column, “California Focus”, which appears in 70 newspapers which have a compiled circulation of 1,890,000 readers. Three times, he has written a column in support of the California ballot measure for a “top-two open primary”: on February 24, 2009, June 17, 2009, and December 14, 2009. The December 14 column is here.
Although Elias is an award-winning journalist, he is so much in favor of “top-two” that his columns about “top-two” are not objective. He knows that the specific measure that will appear on the California ballot has some flaws, but none of his lengthy columns mentions those flaws. Those flaws, which so far have not been mentioned in any California daily newspaper except for the Orange County Register, are: (1) the measure makes it far more difficult for a ballot-qualified party to remain on the ballot by eliminating the 2% vote test; (2) the measure says write-in votes won’t ever be counted for Congress and state office in November; (3) the measure treats candidates unequally as to whether they get a party label of their choice; (4) the measure shuts off all routes to the November ballot after mid-March of an election year.
Other supporters of “top-two” are willing to acknowledge that these flaws are indeed flaws. For example, Tom Campbell, a former state legislator and Congressman, and a leading candidate for either Governor or U.S. Senator in next year’s Republican primary, said on October 20, “I do not favor preventing write-ins, or making it difficult for third parties to appear on the initial (primary) ballot.” Jim Mangia, of IndependentVoice, said on December 8, “I agree with you (that some, or all, of these characteristics of top-two are indeed undesirable).”
The December 14 Elias column misleads its readers in several ways. He says if the “top-two” measure were in place, the November election would be a “runoff”. Actually, Webster’s 9th New Collegiate Dictionary defines “runoff” to be: “A final race, contest, or election to decide an earlier one that has not resulted in a decision.” But under “top-two”, the first round is not an election. An “election” is an event at which someone may be elected. But under “top-two”, no one is ever elected in the first round, even if that person receives 100% of the votes in the first round. The first round is nothing more than a ballot access screening device. The only election is in November. Therefore, the November event is not a “run-off”; it is the first and only election.
The December 14 column says “very few seats ever switch parties”, but in 2008, three of California’s 80 Assembly seats switched from Republican to Democratic, and one switched from Democratic to Republican, for a total of 5% of the seats that switched parties.
Another distortion is Elias’s sentence, “It’s exactly how hundreds of local elections in California have been conducted.” This is not true. California non-partisan local elections sometimes provide for run-offs if no one gets 50% in the first round, but in all cases, if someone does get 50% in the first round, the person is elected in the first round. Furthermore, of course, California local elections are non-partisan, but under “top-two”, Congressional and state elections would continue to be partisan, so they are not “exactly alike.”
But the worst aspect of Elias’s December 14 column is his sentence, “The smaller parties want to stay in general elections even though they have no chance to win. They whine that they should have a presence in every election, regardless of whether they’ve earned it.” It is consensus among historians and political scientists that minor parties in a two-party system have a valuable role to play. They introduce new ideas into the system that are initially either very unpopular, or totally unknown. Minor party candidates are free to say exactly what they believe, because generally they don’t expect to win, whereas major party members frequently are careful not to espouse any idea that isn’t already popular.
Many California city elections involve no run off at all. Many cities and school boards will elect the top 2 or 3 or 4 vote getters out of an entire field of candidates. When I lived in Ventura, CA the top four vote getters all won city council seats.
Tom Elias and I had some correspondence during California’s 2004 Prop. 62 campaign. He habitually fails to mention Prop. 62 in his “top two” columns, obviously because it lost in 51 of the state’s 58 counties.
Like most proponents of the “top two,” Tom has little use for political parties. He told me that he didn’t mind the existence of national parties, but that he saw no need for state parties!!
Tom wrote two columns on the “top two” (“open primary”) in 2008, one in May and the other on December 11. Click here for my response to the May article. Comment #2 is excellent, if I do say so myself.
Click here for my reponse to Tom’s December 11, 2008 piece.
This is a test post.
Tom Elias and I had some correspondence during the campaign for California’s Prop. 62 in 2004. He habitually fails to mention Prop. 62 in his “top two” columns, obviously because it lost in 51 of the state’s 58 counties.
Like most proponents of the “top two,” Tom has little use for political parties. He told me that he didn’t mind the existence of national parties, but that he saw no need for state parties!!
Tom wrote two columns on the “top two” (“open primary”) in 2008, one in May and the other on December 11. Click here to see my response to the May article. Comment #2 is excellent, if I do say so myself.
The surviving top 2 party hacks will obviously try and pander to the voters who —
(1) voted for ALL of the losing candidates in the primary and
(2) ALL of the voters who did NOT vote in the primary.
The Sun will continue to rise and set — with the party hack winner claiming a mighty majority MANDATE for his/her party hack extremist agenda.
P.R. and A.V. — NO primaries are needed.
In the 2006 gubernatorial election, there were 364 votes counted for write-in candidates (0.004% or 4/1000 of 1% of the 8.68 million votes cast). No write in votes were counted for Lt. Governor, Secretary of State, Controller, Treasurer, Attorney General, or Insurance Commissioner.
Moreover the provision against counting write-in votes is so badly written it would be unlikely to stand up to a legal challenge.
In California in November 1976, there were 58,412 write-ins tallied for Gene McCarthy for president.
“(3) the measure treats candidates unequally as to whether they get a party label of their choice;”
This is not correct. Richard Winger appears to be confusing SCA 4/SB 6 with Prop 62 which was defeated in 2004. Prop 62 explicitly restricted candidates to having the party affiliation of a qualified party. Those whose voter registration was with a non-qualified party were explicitly deemed to have “No Party” registration.
It is quite lawful in California for a voter to have a party registration with a non-qualified party, whether that party was formerly qualified, attempting to qualify, or merely existing in the mind of the registrant. The legal meaning of party affiliation in California is a declaration of intent to affiliate with a party at the next primary. Neither the voter or the State can be sure that the party will exist at that time, or hold a primary, or whether the voter will actually affiliate with that party by voting.
State law requires that when a political body attempts to qualify as a political party, that election officials count persons who had declared an intent to affiliate with the party prior to the formal attempt to qualify the party. The Reform Party has repeatedly attempted to re-qualify. And each time, election officials are required to count the party affiliations of voters, whether they are fresh or made 15 years ago.
There are only two ways for the party affiliation of a voter to change: (1) The voter changes it; or (2) the registration lapses.
SCA 4/SB 6 would maintain all existing voter affiliations, but would recast them as “disclosing a preference for a political party” (since parties will no longer have party primaries for State offices, an intent to affiliate with a party at the next primary is meaningless). It makes no substantive change in the manner in which party affiliations or registrations are maintained.
Under SCA 4/SB 6, a candidate whose voter registration disclosed a party preference could either have that that preference shown on the ballot, or have no preference shown. So if a voter may legally disclose a preference for the Constitution Party, the SalmonYoga Party, or the Grange Party, then that preference will be shown on the ballot, unless the candidate chooses not to show that preference.
In addition, the Secretary of State will be required to show the party affiliation record for the previous 10 years of all candidates for office on the SOS website.
The truth is that SCA 4/SB 6 empowers candidates of unqualified parties to have their affiliation appear on the ballot. This is absolutely not the case under current law, where a candidate would be forced to run as an independent, if he were able to complete the onerous task of gathering the huge number of signatures required in California.
The number of signatures required for a congressional candidate would be 40 under SCA 4/SB 6. For an independent candidate under existing law it can be well over 10,000.
#7 SCA 4/SB 6 does not apply to presidential elections.
If Top 2 had been used for the presidential election in 1976, Jerry Brown and Ronald Reagan would have been on the ballot, and perhaps McCarthy would not have got as many votes.
Do you interpret Section 8606 (added by SB 6) as paralleling the language of Section 8605?
Former California State Senator Steve Peace, who was the proponent of the proposed “top-two open primary” initiative that was going to be circulated in 2009 (except it wasn’t necessary, because the legislature put it on the ballot instead) says I am right about no labels for members of unqualified parties. His e-mail of October 19, 2009, says, “I have verified that you are correct.”
As to write-ins sometimes being important, in November 1996, in the California Assembly race in the 30th district, Brian Setencich received 26,968 write-in votes, which was 41.20% of the total vote cast.
A more recent example of how important write-ins can be in US House races is from Texas in 2006, when Shelley Sekula Gibbs received 61,938 write-ins in the 22nd district. Under the Maldonado proposal, none of those votes would have been counted.
Any proposal in the past that lost is worthless.
Current law — proposed law – with changes (in under 10,000 words please — to reduce having total confusion).
The M proposal seems to be written in perfectly clear English with ZERO doubt about what it means and what it will do if approved — i.e. Put many extremist party hacks out of business after 1 or 2 or 3 or 4 or more elections — i.e. to encourage the moderates to get their acts together.
Again — for the M proposal — see (June 2010)
http://www.sos.ca.gov/elections/elections_j.htm
#11 Do you interpret Section 8606 (added by SB 6) as paralleling the language of Section 8605?
If the 2006 election in Texas CD 22 had been contested using Top 2, there would have been different candidates on the ballot. If not for an adverse court ruling, Sekulla Gibbs would have been on the ballot in 2006. And she won a special election for the final 2 months of the term, under a special election conducted under the identical format as will occur under the Top 2 system proposed for California. I will leave it up to you to defend the idea of a March primary, and a requirement of filing for an office less than half way through a 2 year term.
If the 1996 election in California AD 30 had been conducted under Top 2, Brian Setencich would have been on the November ballot.
The 1996 election particular illustrates the problem with the current partisan primary system. Jim Costa(D) had been elected to the seat in 1992 with 65% of the vote, and then switched to the senate. Setencich narrowly won the open seat in the 1994 election, likely benefiting from the Republican congressional resurgence that year. This gave the Republicans a one-vote majority in the Assembly.
Paul Horcher, a Republican turned Independent from Los Angeles voted with the Democrats to keep Willie Brown in power. Horcher was recalled, but later was given a job in San Francisco by Brown, who was mayor by then.
Doris Allen, a Republican from Orange County along with Setencich then supported Brown, with Allen being named Speaker. Like Horcher, Allen was recalled. She ran for election to her old seat as a Republican under the blanket primary in 1998. Had it been conducted as a Top 2 election, she would have qualified for the general election.
After Allen’s recall, Setencich was named speaker. After Brown was elected mayor, he was booted from the speakership. In return for his support, the Democrats did not field a candidate for his seat (remember they narrowly lost in 1994, and Costa had won with 65% support in 1992). Setencich was defeated in the Republican primary. So Willie Brown denied Democrats the right to vote for their assemblyman in a political deal. It was in the general election that Setencich attempted to be elected as a write-in candidate.
Setencich was also given a job in the Brown administration. The Democrats retook his Assembly seat in 1998, and in 2000 held it with a 66% majority.
Had Horcher or Allen been elected under a Top 2 system, there may have been less of sense that their seats were a possession of a political party. If they had been elected with broader support they may have been able to withstand the recall challenge. And had all voters regardless of their political affiliation been able to vote in the primary, Setencich might well have been re-elected.
#10 I could find no record of an initiative petition on the SoS web site (I went through reports back into 2008). Was it ever submitted the Attorney General’s office? Was it ever in written form?
You have claimed that the Maldonado measure was written in the middle of the night. Are you sure that it is the same as the Peace initiative?
Prop 62 was quite explicitly clear that it restricted party affiliation to qualified parties. That is absolutely not the case for SCA 4/SB 6.
So either the Maldonado version and the Peace version are different; or they are the same and were incompetently written such that even if the drafters intended to restrict parties to qualified parties, they failed to do so.
Steve Peace submitted his first version of a proposed “top-two” initiative to the Attorney General on September 29. It was given number 08-0015. It would have abolished registration by party. Then he submitted another version on January 30, 2009, which retained registration by party. The legislature used that draft as a framework for SCA 4 and SB 6, but some changes were made.
#15 So — how many armies of lawyers worked on the S.P. proposal — BEFORE the party hacks in the CA legislature got their hands on it ???
Any side by side sentences for comparisons — of who did what when ???
Standard legislative history stuff — necessary now since the party hack courts mystify all language all the time.
#15 08-0015 refers to “major” and “minor” party but I can not find anything that defines how a major or minor party is defined. And since it would have eliminated party registration entirely, it would have been dramatically different from SCA 4/SB 6.
I can’t find the January 30 version on either the AG web site or in the SOS initiative report (but the bracketing dates were 1/28/2009 and 2/18/2009).
Prop 62 in 2004 explicitly stated that a candidate who was registered with a non-qualified party would be shown as “No Party” on the ballot. That is, it was recognized that it was quite legal to have a valid party registration with an unqualified party – and that to limit ballot designations to only certain parties required explicit language.
It is quite clear from the whole scheme that California uses to regulate party affiliation and qualification, that registration with with an unqualified party is not only legal, but in some cases necessary in order for a party to become qualified.
So in context the “party” that one may affiliate with on their voter registration is different from the “party” defined in Section 338, which refers to a subset of the parties that voters may have declared on their registration.
SB 6 adds “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.”
In the context of a voter-nominated office, this definition overrides that of “party” found in Section 338. If a candidate for a voter-nominated office has disclosed a preference for the SalmonYoga party on his registration affidavit, then that is indeed his party affiliation for his candidacy.
A voter certifies the truth and correctness of the information on his voter affidavit, subject to charges of perjury. California could always charge a voter with perjury if they had reasonable cause that the voter was not truthful when they disclosed a preference for the SalmonYoga party. This would probably be a very difficult charge to prove and win a conviction on.
So while SB 6 could have restricted a candidate’s party preference to that of a qualified party, SB 6 does not. I don’t know whether or not the Peace initiative had any such language. If it did, it did not make it into SB 6.
Section 8605 of the Elections Code says that a declared write-in candidate in a partisan primary may not qualify for the general election (ie be nominated) unless they receive a certain number of votes. It doesn’t prevent the write-in votes from being counted. In fact they must be counted in order for the threshold test to be applied.
SB 6 added subsection 8605 (c) that eliminates any threshold test for qualification in voter-nominated primary. A declared write-in candidate qualifies for the general election if they finish in the Top 2.
SB 6 also added Section 8606, which is totally garbled. It may mean that (A) a vote (not a person) for a declared write-in candidate may not be counted. Or it may mean that (B) votes for a declared write-in candidate must be counted, but even if that candidate receives the most votes they can not be elected.
California law requires that a voter may always cast a write-in vote, and that a candidate may always campaign as a write-in candidate, and it requires that ballots have a space for write-in votes.
It however, limits the counting of write-in votes to declared write-in candidates who follow certain procedures specified in Sections 8600-8604. California places a blank on the ballot, and a voter may write “Donald Duck”, and Mr. Duck may campaign as a write-in candidate. But the vote for Duck will not count unless he has complied with declaration requirements of Sections 8600-4. Mr. Duck can not comply with sections 8605 or 8606, since those are restrictions of election officials not on a candidate.
If Section 8606 were challenged in court, the court could rule that it was gobbledygook, and that there is no conceivable rational reason for having a gobbledygook regulation that would limit the write to vote.
Or it could adopt interpretation (A), which would mean that a candidate could declare as a write-in candidate in order that write-in votes for him be counted, but that nonetheless that the write-in votes would not be counted. Would California really attempt to defend such a scheme, where it prints a blank on ballots for write-in votes, provides a method by which a candidate can declare that he wants the votes to be counted, and then not count the votes???
Or it could adopt interpretation (B), which would mean that a candidate could declare as a write-in candidate in order that write-in votes for him be counted, the votes would be counted, and even if the write-in candidate had the most votes, they would not be elected???
#18 What happened to the *denied* and *abridged* in the nearly dead 14th Amdt, Sec. 2 regarding write-ins ???
One guess — due to armies of MORON lawyers and party hack judges incapable of understanding the English language.
What ever happened to the progressive traditions in California? Having had a chance to get to know a little bit about the election laws in other states around the country (certainly nothing like Richard’s knowledge, of course) I would say that California is light years ahead of most states in the fair treatment of all in the electoral process (except perhaps in the area of initial ballot access requirements). Why the need to make these changes? There is none, except to protect the major party hacks, as mentioned above, from competition. It seems like freedom is under assault on every front these days. In this case the argument seems to be, “this is all too confusing, so let’s simplfy it for the stupid voters so they have a better chance to vote for a ‘winner’–who cares that they might actually want to vote for someone else?” More Big Brother “protecting the people from themselves.”
#20 How is it fair to tell someone who lives in a Democratic-tilting senate district, but a Republican-tilting congressional district that they have to choose whether to vote for a legislator OR a congressman but not both. Remember the US constitution requires that the electorate be the same for both offices.
Why can’t a group of individual voters engage in political association in support of an individual candidate; and a different group with some overlap engage in political association in support of another individual candidate for another office?
Why can voters who support Joe for city council, also support Mary or Sally for mayor; but if Joe were to run for Congress, they might be able to support him, but not support Mary in her run for the state senate.
The current partisan primary system has evolved into a system of political racketeering, where voters must affiliate with political parties in order to effectively engage in the process of electing their public officers.
If Joe and Mary and Sally want to seek elective office, why not simply let them gather a modest number of signatures on a petition and have them placed on the ballot where every voter could simply vote whether they want Joe or Mary or Sally to represent them.