On November 2, voters in California and Washington will be voting on whether to install an election system that would remove minor party candidates from the November ballot, for all partisan office except president.
It is difficult to know whether the initiatives will pass. California’s Prop. 62 had the support of 44% of the voters in early September, according to the Field Poll. 31% were opposed; 25% were undecided. Another poll in late September showed the measure losing narrowly.
In Washington, a poll in October showed 52% support for I-872, and 35% opposition; 13% were undecided. But when the voter being polled learned that the initiative would leave only two choices on the November ballot, and that the two choices might both be Democrats, or both might be Republicans, support dropped dramatically.
Fortunately, both initiatives have been imperfectly written, a point that is helping the "no" campaigns, and which will be helpful in court if the initiatives do pass.
In California, Prop. 62 accidentally deletes the requirement that makes it illegal for anyone to run simultaneously for multiple offices. That requirement is currently in sec. 8003(b). The Los Angeles Times is about to run a story about this drafting error.
In Washington, I-872 creates internal conflicts inside the election code. Although it adds new language saying that all candidates run in the September primary on a single ballot, it fails to repeal existing language that members of unqualified parties, and independent candidates, can petition directly onto the November ballot. These unrepealed sections are 29A.24.101, 29A.36.011, and sections 29A.20.110-29A.20-200.
Even without these drafting errors, a strong case can be made that both initiatives conflict with federal law, and with Article One of the U.S. Constitution, concerning congressional elections. In 1872, Congress passed a law telling the states to hold their congressional elections in the first week in November. That same law also lets states hold a run-off afterward. As a result, in 1997, the U.S. Supreme Court unanimously told Louisiana (the only state with an election system similar to the California and Washington initiatives), to stop holding its first round of congressional elections in September.
As a result of that case, Foster v Love, Louisiana now holds its first congressional elections in November, and holds a run-off five weeks later if no one got at least 50% in November.
The California and Washington initiatives provide for the first round in June (California) and September (Washington). To avoid the Foster v Love problem, both initiatives provide for a second election in November, even if someone gets over 50% in the first round. Even if someone gets 98% in the first round, or even 100%, he or she would not be elected, and would run again against a solitary opponent, or alone against a potential write-in candidate, in November.
The problem with that is: the U.S. Supreme Court has ruled that congressional candidates who (1) enjoy a modicum of voter support; (2) meet the constitutional requirements to sit in Congress; and (3) have not sabotaged their own party, cannot be kept off the November ballot. "Modicum of support" means 5%. The Court has said it doesn’t matter whether "modicum of support" is measured with a 5% (of the number of voters) petition, or whether it is measured by a vote test in a preceding primary.
Since it takes approximately 30% to place second (according to actual primary election returns in past California and Washington blanket primaries), the two initiatives are telling candidates they cannot qualify for "the" congressional election (which Congress says must be in November), unless they show 30% voter support some months in advance. This is something that the states may not do. The congressional election belongs to all the people, not just the supporters of the two most popular candidates in the district (as determined months in advance).
Proponents of Prop. 62 never explain why they didn’t write it to follow the Louisiana timing. Supporters also fail to explain why, if their system would produce more "moderate" legislators and congressmen, the previous California experiment with the blanket primary didn’t seem to elect more "moderates". The legislature that sat between 1999 and 2002 was composed of members elected in the blanket primary, and it behaved almost identically to the legislature prior to 1999, and the current legislature.
~ Richard Winger