In June 2010, California voters will be voting on a ballot measure, to switch California elections to the system used for the first time in Washington state in 2008. California newspapers have been referring to the idea as “the open primary”. On August 8, the elected officers of the San Francisco Libertarian Party sent a letter to most daily newspapers in California, asking that in the future, they refer to this ballot measure as the “top-two” primary, not the “open primary.”
The letter includes a copy of the ballots in the three times in history when the voters of a state voted on this idea. Never did the ballot refer to this idea as an “open primary”.
The last time the voters of any state voted on this idea, in Oregon in 2008, the ballot said, “Changes general election nomination processes for major/minor party, independent candidates for most partisan offices.” “Result of ‘Yes’ Vote: ‘Yes’ Vote changes general election nomination processes for most partisan offices; all candidates run in single primary; top two primary candidates compete in general election.”
The Washington state ballot in 2004 said, “Initiative Measure 872 concerns elections for partisan offices. This measure would allow voters to select among all candidates in a primary. Ballots would indicate candidates’ party preference. The two candidates receiving most votes advance to the general election, regardless of party.”
The California 2004 ballot said, “Requires primary elections where voters may vote for any state or federal candidate regardless of party registration of voter or candidate. The two primary-election candidates receiving most votes for an office, whether they are candidates with ‘no party’ or members of same or different party, would be listed on general election ballot. Exempts presidential nominations.”
The letter points out that both the Oregon Supreme Court in 2008, and a California Superior Court in 2004, ruled that it would be misleading to refer to the measures as an “open primary”, given that “open primary” has long been defined as a system in which each party has its own primary, but a voter is free to choose any party’s primary ballot.
It’s somewhat surprising that there’s such interest in this issue this early.
“… the three times in history when the voters of a state voted on this idea.”
In 1915, California had a ballot measure for such an elecion system for state offices, and the voters wisely defeated it.
In 1934, Nebraska voters approved a nonpartisan (“top two”) election system for the legislature.
I note that many Californians also refer to the blanket primary by that sexy term, “open primary.” Say what you will about Washington state, but at least they use the proper terminology: they called the blanket primary by its correct name, and they refer to their current nonpartisan system as the “top two.”
Louisiana has used nonpartisan elections for state and local offices since 1975, and that was enacted by the legislature. Five different times between 1966 and 1979, the Mississippi legislature enacted such a system for state and local offices, but its implementation was blocked each time.
Louisianans and Mississippians popularly call this system the– DUM-DE-DUM!– “open primary.”
I forgot to mention that North Dakota voters also wisely rejected a nonpartisan (“top two”) system in 1921 (on the same day that they recalled their governor).
NO primaries, caucuses and conventions are needed.
Total Votes / Total Seats = P.R. = REAL Democracy via pr pre-election candidate rank order lists to transfer surplus votes and loser votes.
Approval Voting for NONPARTISAN executive / judicial offices.
Demo Rep
Good thing we arent a Democracy. I would hate to be like the Peoples Democratic Republic of China. This country is a Constitutional Republic and ruled by law; not by the whims of a majority. The quicker people realize that the quicker the situation will fix itself.
The U.S.A. is an EVIL and VICIOUS indirect minority rule gerrymander OLIGARCHY — with very strong movements towards ABSOLUTE TYRANNY — in the person of each powermad Prez since 1932 (along with powermad Guvs in each State, powermad mayors in cities, etc.) — just in case anybody has been on a trip in outer space with the Star Trek folks since 1932.
Democracy NOW — to END the rule of the oligarchs and monarchs — and ALL the evil they cause – undeclared wars, inflations, depressions, domestic oppressions (via special interest gang laws), etc. etc.
Amen Don.
Assuming you are Don, I could be wrong.
But the Top 2 primary is a step in the right direction. As an academic and political activist and voter with some influence in several sections of the great state of California, I will definitely make sure that this is passed. It will help the grass-roots take over both the major parties, and make the Naderites cry and moan and cry and moan, always a good thing.
Democrats, Republicans, Minor Parties, & Independents All Agree: The Top Two Primary is a Bad Idea
http://www.freeandequal.org/2009/06/democrats-republicans-minor-parties-independents-all-agree-the-top-two-primary-is-a-bad-idea/
“… the biggest threat to the existence of minor parties in over 50 years.â€
-Richard Winger, Ballot Access News
The need for true change is significant.
Join the PRAPS Movement.
http://therecreation.webs.com
“Top two” is an improvement-albeit a relatively minor one-over the present system. Why? Because you can feel free to vote for a minor party in the first election-often a potential “spoiler” in a straight FPTP contest-knowing you still vote for the usual “lesser of two evils” in the second round.
California holds its primaries in June. “Top-two” would mean that minor party and independent candidates would have no campaign during September and October of election years, the time when voters are most interested in politics and political ideas.
If the version of “top-two” that were being proposed for California were like Louisiana’s congressional elections before 2008, it wouldn’t be so bad. Louisiana had its primary for Congress in November, with a runoff in December for the few cases when no one got 50%. So no one running for Congress in Louisiana was shut out of the main campaign season.
#8: “Democrats, Republicans, Minor Parties, & Independents All Agree: The Top Two… is a Bad Idea.”
Right. The parties want to be able to perform their basic function of officially nominating candidates; they want to have the right to have a candidate in the final, deciding election, which is not the case in the “top two.”
In the “top two,” the final choice is usually two Democrats, two Republicans, or one of each. An independent or a small-party candidate almost never reaches the second round.
Another drawback of the “top two” is that the two candidates who make the runoff are required to finance and conduct TWO general election campaigns. This discourages candidates from running. In recent years, two former Louisiana governors considered running but decided not to. If Louisiana had had party primaries, they likely would have run, which would have provided more choices for the voters.
#10: With the “top two,” you would only have small party candidates for a few election cycles, since the small parties will eventually vanish.
Why should the voters be limited to just two choices in the final, deciding election?
#11: Excellent points. When a small party’s ideas are kept out of the decisive campaign, the party loses its main reason for existing.
One of the main reasons that Louisiana restored party primaries for Congress (2008) was that, when a senator or representative was not elected until December, he or she had less time to prepare for the congressional session. By then, the choicest committee assignments and office space were already taken.
The LA so-called runoff elections were a blatant violation of 2 U.S.C. Sec. 7 —
The Tuesday next after the 1st Monday in November, in every even
numbered year, is established as the day for the election, in each
of the States and Territories of the United States, of
Representatives and Delegates to the Congress commencing on the 3d
day of January next thereafter.
-SOURCE-
(R.S. Sec. 25; Mar. 3, 1875, ch. 130, Sec. 6, 18 Stat. 400; June 5,
1934, ch. 390, Sec. 2, 48 Stat. 879.)
-COD-
CODIFICATION
R.S. Sec. 25 derived from act Feb. 2, 1872, ch. 11, Sec. 3, 17
Stat. 28.
—-
THE day — THE election — much too difficult for the armies of legislative, executive and judicial MORONS in some States to understand.
THE reason for THE uniform date is to lessen the chances for major last second rigging of ballots, bribery, etc.
Same for the so-called runoff election in GA for a U.S.A. Senator in 2008.
Is the U.S.A. regime a LAWLESS banana republic or what ???
If blatant violations of election laws is OK, then is EVERYTHING OK by the party hacks — murder, slavery, etc. etc. ??? ??? Duh.
The California legislature in proposing the system resolved that “[t]his measure shall be known and may be cited as the ‘Top Two Candidates Open Primary Act.'”
This was passed by the Assembly on a 54:20 vote and a the Senate by a 27:13 vote.
So perhaps in the interest of headline space, the newspapers can simply refer to it as the “Top 2 Open Primary”
#11 There is no reason that the California primary has to be in June. Remember that in 2000 through 2004 the primary was in March.
Given that California conducts non-partisan elections with a June election and November runoff, including the statewide Superintendent of Public Instruction, it is more than a little disingenuous to be concerned about the public not being interested in elections in June.
#12 The basic function of private political organizations is to recruit candidates, and to provide funding and support for their election. There is no reason for them to have special access to the ballot over that of ordinary citizens supporting any candidate.
#14. The runoff in Louisiana is held under terms of 2 U.S.C. Section 8. As you noted, 2 U.S.C. Section 7 (and 2 U.S.C. Section 8) is derived from from the 1872 Reapportionment Act which first established the uniform congressional election date.
Section 4 of the 1872 act said that, “That if, upon trial, there shall be a failure to elect a Representative or Delegate in Congress in any State, District, or Territory, upon the day hereby fixed and established for such election, or if, after any such election, a vacancy shall shall occur in any such State, District, or Territory, from death, resignation, or otherwise, an election shall be held to fill any vacancy caused by such failure, resignation, death, or otherwise, at such time as is or may be provided by law for filling vacancies in the State or Territory in which the same may occur.
The use of “trial” was deliberate use of a well-known term for an election, somewhat akin to a trial hear. In early years, some States, particularly in New England, would hold repeated trials until there was a candidate with a majority. There was no eliminations, since there were no nominations, and there might be as many as 8 trials before someone was finally elected.
In the oral arguments of Foster v. Love, Louisiana AG Ieyoub argued that Louisiana’s system of election was so novel, that Congress could not have anticipated its use when setting the uniform election date. The lawyer for Love correctly noted that when Congress set the uniform election date, all States conducted their congressional elections without primaries, and that the runoff should properly be held after the uniform election date.
A better case can be made that the system of early primary elections thwarts the rights of voters to choose their representative on the date set by Congress, since in many cases the choice is effectively made in the primary, thereby denying participation by voters who are newly 18; newly naturalized citizens; new residents of the district; supporters of the non-dominant party; and felons who have had their franchise restored, while including persons who may have died, moved away, or been convicted of felonies in the long interim between the primary and the general election. It also sets a de facto residency requirement for candidates since they may have had to declare their candidacy more than a year before they would take office of when the election would be held (eg Illinois).
In setting the uniform congressional election date, Congress wanted to curb the practice of pipelining where voters could move across a state line and participate in two congressional elections. But now a can move from State to State participating in several primary elections, beginning in early February in Illinois and ending up in September in Hawaii.
#15: As Richard notes in the last paragraph of the post above, a California Superior Court in 2004 ruled that it was misleading to call the “top two” an “open primary.” That court forbade that it be called an “open primary” in the voter’s guide.
#17: What’s your point? There’s a great body of court rulings vis-a-vis political parties and their operations. 49 states recognize parties’ nominations by allowing each qualified party to have one candidate per partisan office on the general election ballot. And the state specifies which nominating method(s) the parties are to use. In the closed-primary states, the state has the power to prohibit parties from inviting members of opposing parties to vote in their primaries.
Ordinary citizens participate in political parties by giving their time and money to a party. They may help a candidate get access to the ballot by collecting signatures or by giving money to help cover the filing fee.
As Justice Scalia said, “Representative democracy… is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.”
He wasn’t talking about the Rotary Club or the Junior Chamber of Commerce.
Actually, if you count the presidential election, all 50 states recognize the nominations of qualified political parties for at least some offices.
And, of course, each state sets the standards for parties to achieve qualified status.
#19 #15 The proposal for an Voter Choice Open Primary in 2004 was an initiative, in which the legislature had mad a competing proposal. The superior court may have been deferential to the legislature.
The Top Two Candidate Open Primary is a proposal by the legislature, which had the opportunity to study the issue and correctly characterize the primary as an open primary, since it is open to all candidates without regard to any previously disclosed party preference, and is open to all voters without regard to any previously disclosed political preference. It is a primary election, and it determines the Top 2 candidates.
How would you characterize the method by which California elects its Superintendent of Public Instruction?
#19 #17 It is in the interest of the political parties to have voters think that the political parties are part of the government (didn’t the closed primary lawsuit in Mississippi characterize the MSDP as a quasi-governmental organization?).
But once the State gets into the business of officially recognizing party nominations, it begins to interfere with the right of citizens to band together and support individual candidates.
Nothing in the Top 2 Open Primary prevents ordinary citizens from giving their time and money to political parties. Nothing prevents them from gathering signatures – though the signature requirements are so nominal, this is not really important. In fact the partisan primary system is intended to keep candidates off the ballot, while giving an appearance of openness.
In California, the State will distribute party campaign information to voters who have disclosed a preference for a political party. If voters choose to disclose their political party preference, the political parties may then contact them directly.
“Under a nonpartisan blanket primary, a State may ensure more choice, greater participation, increased ‘privacy,’ and a sense of ‘fairness’–all without severely burdening a political party’s First Amendment right of association.” Justice Scalia in California Democratic Party v. Jones
#20 Washington, Louisiana, and California should adopt Top 2 for their presidential elections as well.
Does the California assembly know more about terminology than the federal courts? The federal courts define “open primary” as a party primary that is open to any voter. In almost every state where one major party has an open primary, the other major party does too, and the voter picks one or the other on primary day.
How can an election that includes independents and candidates of various parties be a “primary”? The direct primary started as a method for a party to nominate its candidates. The “top two” is a general election with a runoff, as Justice Stevens noted in the Jones decision.
The California superintendent of public instruction is elected in a nonpartisan (or “top two”) election with a runoff, just as are California’s county and municipal officials.
Political parties in the U. S. are among the most heavily government regulated of any in the world.
The states are not going to stop recognizing party nominations. And since Louisiana, e. g., no longer uses the “top two” for congressional elections, it’s certainly not going to start using it for presidential elections.
“… the partisan primary system is intended to keep candidates off the ballot…”
How so? If a candidate doesn’t want to run in a party primary, he can run as an independent. And in at least one state– Connecticut– a candidate who loses a primary may still run as an independent.
Interesting that Justice Scalia opposed the “top two” in last year’s case from Washington state.
In the Washington “top two” and the California proposal, there is always a second round of voting. In the Louisiana “top two,” in contrast, there is a runoff only when no candidate gets 50%-plus in the first round. So, apparently, the “primary” (SHA-ZAM!) magically transforms into a general election when a second round is not necessary.
#23 California has a legislature comprised of a Senate and an Assembly. You may be thinking of States that have a General Assembly comprised of a Senate and House of Representatives. Were a court to attempt to classify the various bodies, they might refer to them as “legislatures”. There is no reason for a court not to defer to the legislature’s judgment with respect to the “Top 2 Candidates Open Primary”.
It is not remarkable at all to call a first election a primary election. In cities that have non-partisan primaries, the first election is referred to as a primary, as it is for the Nebraska legislature.
Is the California Superintendent of Public Instruction is elected at the “general” election in June?
The reason that political parties are more regulated in the US is because they have been entangled in the actual process of election. Eliminate the State-run party primaries and there will be less party regulation.
The fact that a candidate has to decide whether to run as an independent or to run in a partisan primary where only some voters may vote for him restricts both voters and candidates from making their case before the whole electorate. Note that in Hawaii, independents do run in the partisan primary.
Louisiana statutes refer to the first election as a “primary”. They do not conduct a “general” election for that office if a candidate receives a majority in the primary.
I seriously doubt that the federal courts will change their terminology because of the title of one state legislative measure. For years, “open primary” has had the definition that I gave in #23 above.
In California Democratic Party v. Jones, the U. S. Supreme Court correctly called the California system used in 1998 and 2000 a blanket primary. The court referred to the group that had “open primary” in its title, and which had promoted the blanket primary.
Yes, the word “primary” has been corrupted to mean the first step of just about every election process. The oxymoronic “nonpartisan primary” came into usage in the early 1900s. This happened when municipalities replaced the direct party primary with a nonpartisan system. People were accustomed to calling the first election the “primary.”
The states are very unlikely to stop mandating and paying for party primaries. If they did, the parties (due to the expense of a primary) would instead nominate by a less democratic method, and the voters would raise hell.
The party primary is the most democratic method of nomination. Again: since the top two finishers in the “top two” are required to conduct TWO general election campaigns, campaigns are more expensive in that system. This (1) discourages candidates from running, and (2) increases the influence of “big money.”
Interesting that the Louisiana “general election” to which you refer is limited to two candidates per office.
When Louisiana had the first round of its congressional elections on the first Tuesday after the first Monday in November, was that a “primary”? And when a second round was necessary in December, was that a “general election”?
Going back to 1915, your (Jim’s) cherished “top two” has a poor track record when it comes to votes of the people. And state legislatures certainly aren’t going to enact that monstrosity. The only reason “Maldonado’s Revenge” will be on next June’s California ballot is that Maldonado’s vote was needed to pass the state budget.
Jim: Did you receive the e-mail I sent you, requesting any info you may have on California’s 1915 “top two” referendum?
As to your last paragraph in #24: No one gets elected in a primary. The purpose of a primary is to nominate candidates.
Even in the “nonpartisan primary,” the purpose is to “nominate” candidates for the nonpartisan “general election.”
Even in the old one-party system in the South, there were Soviet-style general elections, in which a few voters turned out and gave complimentary votes to the Democratic nominees.
You would have loved the old one-party system, Jim, since it was a de facto “top two” system.
The Louisiana “top two” (“open primary”) is an extension and part of the residue of the old one-party system, which was in reality a NO-PARTY system.
#26 In Louisiana, if a candidate receives a majority of the vote in the primary he is elected. The only exception is for federal offices.
One of the issues in Foster v. Love was that Louisiana was actually certifying election before November.
#25 It doesn’t matter if the courts change their terminology, which is descriptive rather than prescriptive. Over time, they will adopt common terminology. Maybe a whole new set of terminology will emerge, such as unrestricted and restricted. Has the Libertarian Party requested that the press refer to their primary as a “closed primary”?, and those of the Democratic, American Independent, and Republican parties as “semi-closed”?
It is a corruption of the word “primary” to use it as a noun rather than an adjective in the first place, and to invest it with any more meaning than of a first election of a series.
When some states simply had new elections when no candidate received a majority, how were these referred to? I have seen them referred to them as 1st, 2nd, 3rd, etc, trials. But perhaps they were actuall referred to as primary, secondary, and tertiary trials.
“The party primary is the most democratic method of nomination.”
You of course mean the most democratic method of partisan nomination. The fact that there are less democratic methods of partisan nomination, does not mean that the party primary is the most democratic method of nomination.
I don’t know if you watched the Louisiana legislative hearing when they were going to get rid of the minor party congressional primaries. Their stated reason was because their lockout devices on their voting machines could not handle a large number of parties.
The lockout devices are manipulated by an election judge so that any voter could vote, for example, in a legislative election, but prevented from voting in a congressional party primary, enforcing an unconstitutional voter qualification. More discrete than a water cannon to be sure. But hardly democratic.
Are legislative elections in Nebraska or Louisiana more expensive than those in other states of similar demographics and district size? Have candidates been discouraged from running for office?
I don’t know the answer in the case of Louisiana’s election statutes. The current law definitely refers to the first election for all offices but federal offices as a primary, and there are bunches of provisions that say that they don’t apply to congressional elections. I doubt that they would have changed the terminology, but rather simply made them not apply to congressional elections.
I got an e-mail about North Dakota that had California in the title, and one about Louisiana.
We’re now on page 3 of this site, so we’re likely the only ones still reading this.
#28: That’s the point. If it’s possible for someone to get elected, it’s a general election, not a “primary,” regardless of what you, the Louisiana legislature, or anyone else calls it.
#29: The U. S. Supreme Court already has a common terminology for the types of primaries.
I take it you’re talking about the parties in California. It’s a closed primary when only party members may vote, and it’s semi-closed when independents are the only non-members who are invited to participate.
The direct primary had its beginnings in 1842 with the “primary meetings” of the Democratic Party of Crawford County, Pennsylvania. The party used this method of nomination as a replacement for the nominating convention.
The problem with the terminology is that political science is a social science and doesn’t have precise laws.
What method of nomination do you consider to be MORE democratic than the party primary? When a candidate is nominated by petition, there are, depending on the jurisdiction, typically far fewer people signing that petition than participate in a party primary.
d-i-s-c-r-e-e-t
The point is that, when the first round of voting occurs on the first Tuesday after the first Monday in November, it’s a general election, not a “primary.” And when a second round is necessary, it’s a runoff.
Mississippi has the first round of voting for such nonpartisan offices as judges and election commissioners on the November ballot, and we certainly don’t call those “primaries.”
Do you have any info on the 1915 California “top two” referendum?
Thanks, Richard (#11) and Steve (#13) for bringing up the importance of the timing of the two rounds. This is an aspect of the Maldonado proposal that I hadn’t considered yet.
Jim (#15), when the newspapers use “open primary” they are not just trying to save space. They are swallowing — hook, line and sinker — the spin of the proponents, who realize that open primaries (properly so called) are popular with many voters.
#30 what did the Crawford County Democrats actually call their election? And what did the people in New England call their series of elections (trials)?
In Louisiana, you can hardly call the first Tuesday after the first Monday a November a “general election”, when offices in general are not contested at that time. Though the runoffs are called a “general election” they are held later in the month.
I did come across an editorial in the New York Times about the 1915 referendum, but they seemed to mostly pleased that it was Hiram Johnson’s proposal that was beaten. I don’t think they much cared for Teddy Roosevelt after he challenged Taft. Johnson was the Bull Moose VP candidate.
#31 Has the Libertarian Party in California sent a demand to the newspapers that their primary always be referred to as a “closed primary”?
If it is stupid for California to hold the elections for the legislature in June and November, isn’t double stupid to hold non-partisan elections for county and city offices in June and November, and have the first round coincide with partisan primaries.
#32: The Crawford County Democrats called their nominating process “primary meetings.”
When Louisiana had runoff general elections for Congress, they were held on the first Saturday in December. The 2002 Mary Landrieu-Suzanne Terrell runoff was on December 7.
At the 1912 Republican convention, Taft won most of the delegates from Roosevelt’s home state of NY, while Roosevelt won most of the delegates from Taft’s home state of Ohio.
At the 1920 Republican convention, Hiram Johnson turned down the VP spot on tickets headed by Warren Harding and Philander Knox, as Johnson was aiming for the presidency. Both Harding and Knox died during the next presidential term, so Johnson would have become president if he had taken either deal.
The oldest use of “primary meeting” that I could find was from 1825, in which Republicans in Providence, RI had an initial meeting, to consider the possibility of calling subsequent meetings. Other 19th Century usage appear to use “primary meeting” to refer to what we would now refer to as a precinct caucus or convention. that is the initial meeting in a series of meetings. One text oriented towards young people noted that most large towns and cities had primary meetings, because it was not possible to have all partisans attend a city-wide meeting or convention. This usage appears to be particular prevalent in the mid-Atlantic states.
I did find a reference to a “non-political primary meeting” in Marion County, Texas, which was intended for whites to nominate candidates for office.
So use of “primary” for a statewide party nominating election is somewhat of an oxymoron. It would appear to be more appropriate for Washington, Nebraska, and Louisiana to call their initial election a primary.