California State Senator Loni Hancock (D-Berkeley) spoke at a forum, “What Ails California?”, held on the University of California Berkeley campus on October 23. She was a member of a panel that was discussing solutions to California’s government problems. The meeting was not specifically about the “top-two” ballot measure in June 2010, but the issue arose.
Hancock said to beware of the measure, because, in her opinion, it would raise the cost of campaigning. She said that the system, by requiring candidates to run two different campaigns before the entire electorate (the June campaign and the November campaign), would make it even more expensive to run for office than is currently the case.
Certain other political leaders who have voiced support for the general concept of a more open primary process are not entirely happy with the specific “top-two” measure that will be on the California ballot. Tom Campbell, a former Congressman and a prominent candidate for Governor in next year’s Republican primary, said in an e-mail dated October 20, “I do not favor preventing write-ins, or making it difficult for third parties to appear on the initial (primary) ballot.” The California law has already been changed to say that write-ins for Congress and state office in November should never be counted, but that law will not go into effect unless the voters vote for the “top-two” measure. Also, the new law would not permit members of unqualified parties to list their party preference on any ballot, so it does not treat all candidates equally.
Jim Brulte, former leader of the Republicans in each house of the legislature, and Joel Fox, former president of the Howard Jarvis Taxpayers Association, also appeared on panels at the “What Ails California?” forum. Each expressed general support for a more open primary process, but afterwards each said in an e-mail that they have not endorsed the specific proposal that will be on the 2010 ballot. Professor Sherry Bebitch Jeffe also says she favors a more open primary process, but that she has not come to a conclusion about the 2010 ballot measure. Proponents of a more open primary process are free to support a classic open primary for California. A classic open primary, used in 22 states, eliminates the practice of asking voters to indicate membership in a party on voter registration forms. Then, each voter on primary day is free to vote in any party’s primary ballot. Oddly enough, no political leader in California ever suggests that idea. Proponents of “top-two”, by insisting on calling “top-two” an “open primary”, have injured any future attempt to get a true open primary established in California, by muddying the public understanding of a true open primary.
Senator Hancock was first elected in 2008, after her predecessor was term-limited out of office (despite an effort to loophole an extension that the voters rejected in February 2008).
Her SD 9 is extremely Democratic leaning (62% Democratic registration, 12% Republican, 21% DTS), and so she was essentially elected in the Democratic primary where she defeated a single opponent by a 57% to 43% margin. Only 23% of registered voters participated.
In the general election she was elected with 77% of the vote, the 15% for a Republican, and 8% for the P&F candidate. Of course under California’s draconian ballot access laws there were no independents, even though the district includes the Assembly district that elected Audie Bock (Hancock’s opponent in the Democratic primary, Wilma Chan, was the Democrat who had ended Bock’s legislative service).
So what you are really saying in the 2nd paragraph, is that she didn’t have to really campaign in the fall, and merely had to win the primary in which less than 1/4 of voters participated, appealing to a narrow partisan elite. It is unlikely that she will even face primary opposition in future elections.
Now compare to what would have happened under Top 2. Let’s assume that the same candidates had run. Most likely Hancock and Chan would have advanced to the November election. But the final decision as to who represented the district in Sacramento would have been made by 350,000 voters rather than 104,000 Democrat primary voters.
But maybe there would have been other candidates. Instead of somewhere around 14,000 signatures for an independent candidate, it would be under 100, the same for all candidates. With such minimal requirement to get on the ballot, concern about write-in candidates is misplaced (and of course under SB 6 it is easier for a write-in candidate to advance to the November ballot than it is under existing law). Maybe Audie Bock would have run for the Senate instead of the Hayward Park & Recreation District.
The current partisan primary system skews the electorate for non-partisan races held at the same time. In Alameda County, 33% of Democrats and 33% of Republicans participated in the June primary, but only 19% of DTS voters (roughly half in the partisan primaries, and half in strictly non-partisan races).
The current partisan primary system in California says that independent voters really aren’t welcome, even though the voters were for example electing Alameda County supervisors, and Oakland city councilors in non-partisan elections. If all voters were welcome to participate in legislative, state, and congressional primaries, then you would likely have a less skewed electorate for county and city offices.
And under the June – November schedule, Oakland voters and candidates were treated to an 8-month-long election. Remember, the June primary is not set in stone. As recently as 2004, the June primary was held in March. It could just as easily be moved to August.
The U.S. Supreme Court got it right when it said in Lubin v Panish, “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.”
That is especially true in Congressional elections, which by federal law are in November of even-numbered years. When I was first old enough to vote, my California 1964 ballot had no minor party or independent candidates on it. Same with my 1966 ballot. I don’t want to ever have to go back to facing a general election ballot with just 2 choices, a Republican and a Democrat, for important policy-making choices.
Jim, if you are someone who is always happy to vote for a Republican or a Democrat, “top-two” won’t inhibit your freedom to vote freely. But have a little empathy for those of us who want other choices in November.
It is easier for a write-in candidate to qualify for the general election ballot under California’s Top 2 system (as codified by SB 6) than it is under Washington. In California, “Top 2” means “Top 2”. Washington, “Top 2” means “Top 2” if a candidate gets 1% of the vote.
But in California or Washington, there is really no reason to run as a write-in candidate given the modest petition requirements. You might save on a filing fee, but you are going to spend more money trying to get voters to write-in your name.
In California, about half of voters vote by mail (and the number is increasing with every election), and often completing their ballot a week or more before election day. A would-be write-in candidate is going to have difficulty reaching these voters, who may simply sit down with their Voter’s Pamphlet which has no mention of write-in candidates, and fill in their ballot and send it in. There is no chance to catch these voters as they enter their polling place.
Washington does not permit candidates eliminated in the Top 2 primary, either as on-ballot or a write-in candidate, to run as a write-in candidate for the general election (that is, the sore loser provisions apply to write-in and on-ballot candidates alike). If a case like the 1982 election of Ronald Packard (he lost the GOP primary, but won the general election as a write-in candidate) happened in Washington, one of two things would have happened:
(1) Packard would have finished in the Top 2, and been on the ballot in the general election; or
(2) Packard would have finished 3rd, and been barred from running as write-in candidate in the general election.
Richard Winger has cited two other California general elections won by write-in candidates, but they are simply not applicable to modern circumstances.
When Hiram Johnson died in 1945, there were 17 months remaining on his Senate term. The Governor appointed William Knowland to fill the office until an election. 15 months later in November 1946, two elections were held. One was a regular election for a full 6-year term, with primaries, etc. The other was a special election for the final two months of Johnson’s terms. Under the election law at that time, special elections were by write-in. Knowland won both elections, though turnout in the not-so-special special election was about 1/6 of the general election. Congress had adjourned in August 1946, and I would not be surprised if Knowland had set foot in Washington, DC during this time, unless it was immediately before the new term and session began in January 1947.
California no longer holds special elections for the final two months of a term (after a November special election); and now has a candidate filing procedure for special elections. That not-so-special election in 1946 has no real application to write-in candidacies.
In 1930, Charles Curry (Sr) died a month before the election in which he was running for re-election to Congress as the candidate of both the Republican & Democratic parties (Under California’s cross-filing system of the time, only one (of 11) congressional races had different candidates for the two major parties, and there were no minor party or independent candidates).
With the death occurring so close to the election, the son of the deceased, Charles Curry, Jr was elected as write-in candidate with 53% of the vote. Incidentally, Curry, Jr., and the 2nd place candidate J.M.Inman with 33% had announced that they were Republican candidates. The 3rd and 4th place candidates, self-proclaimed Democrats split 13% of the vote.
Under the current election system, Curry (Sr) would likely have been elected, a vacancy declared, and then a special election held with filing by candidates.
What are some other reasons for write-ins? Under current law, independent candidates are required to meet signature requirements, that Richard Winger has characterized as “intolerant” when applied to presidential candidates in other states. But under the Top 2 law, independent candidates for Congress require a few dozen signatures, not over 10,000. And in any case, they run in the primary, where write-in candidates are permitted.
Perhaps voters are dissatisfied with the candidates nominated by the political parties. But under Top 2, political parties do not nominate candidates. The two candidates with the most popular support among the whole electorate advance to the general election.
There is one case, where write-in candidates might be useful. That is when one of the nominees dies before the general election. Under the terms of SB 6, the 3rd place candidate in the primary is placed on the general election ballot. In practice, this will not be acceptable, and another solution should be sought. Nebraska has much more experience with Top 2 elections than Washington or Louisiana combined, and they have a May primary. Surely they have had nominees die after the primary, and must have come up with a solution. In other countries such as Britain, when a candidate dies, whether Tory or Labour, or BNP, or OMRLP before an election, the election (in that constituency) is postponed and a new set of nominations is made. In effect, a special election is held.
A solution is possible, and it can be made in statute. Top 2 does not take effect until 2011. No Top 2 primaries will occur until 2012. The write-in restriction has no effect on any special elections that may occur, unless one is going to make the truly ridiculous argument for write-ins in a runoff which are only held when no candidate receives a majority.
EVIL minority rule gerrymanders in ALL 50 States since 1776.
TOTAL AILing in ALL 50 States — and in the even worse U.S.A. gerrymander regime — due to the extreme indirect minority rule in the U.S.A. Senate (due to many, many below average States — 435 Reps. / 50 States = 8.7 average Reps. per State).
Exam — Look up how many States have 9 or more U.S.A. Reps.
P.R. and A.V.
NO primaries are needed.
What is the New Age fixation for having primaries ???
This primary fixation stuff is akin to the DARK AGE fixation with Mother Earth being the center of the universe in the 1400’s — BEFORE telescopes got invented.
#1: “The current partisan primary system in California says that independent voters really aren’t welcome…”
Independents are invited to vote in all Democratic, Republican, and American Independent primaries– except for the 2008 GOP presidential primary. And a voter has until 15 days prior to the primaries to re-register.
#3: “… under Top 2, political parties do not nominate candidates.”
Under the “top two,” parties cannot officially nominate candidates. But they may endorse/nominate candidates if they want to. Of course, (1) there can be other candidates from the same party in the first round of voting, and (2) a party is not assured of having a candidate in the final, deciding election. And when the two final candidates are from the same party, (1) that party is split, and (2) the other parties’ faithful voters are disenfranchised.
The true open primary is mentioned in the last paragraph of the post above. I believe that the federal courts will ultimately declare the state-mandated (true) open primary to be unconstitutional. However, California could repeal its prohibition against parties inviting members of opposing parties into their primaries. Then each party would have the option of conducting a primary that is open to ALL voters.
Iowa, one of the 21 states with open primaries, registers voters by party. On primary day, a registrant of Party A who wants to vote in Party B’s primary may do so by simply re-registering with Party B at the polling place.
Not included in the 21 states is Utah, which also registers voters by party. The Democratic primary is open to ALL voters, while the Republicans invite independents to vote in GOP primaries.
Alaska also registers voters by party. The Republicans invite independents to vote in GOP primaries, while the Democrats and minor party(ies) list their candidates on the same primary ballot.
The Democratic/minor party primary ballot is available to ALL voters.
#2 The Lubin decision quoted the following from Reynolds v Sims
“Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.”
We can add political parties to this list. Legislators are elected by (or should be) by voters not political parties. Partisan primaries impair the free election of legislators, and undermine the bedrock of our political system.
While political parties can have a role in the electoral process, such as candidate recruiting, policy and platform development, fund raising, organizing volunteer support, etc. they should have no role in the mediation of elections.
Once you give a formal role to political parties in the election process by recognizing their nominations, you necessarily require regulation the way the parties make their nominations and qualify for the ballot. Who writes those regulations? The legislators who are elected based on them. It should be obvious why they write the regulations in a way that favors them and such that the parties consider themselves to be extensions of the government itself.
You probably weren’t addressing the substance of the Lubin decision, but I think it is relevant to Top 2. Lubin wanted to run for the Los Angeles Board of Supervisors. In California this is a non-partisan office, and all candidates run in the primary in June. Since we insist on calling the Louisiana system a Top 2 system, we could say it is a Top 2 primary. Or since there is a possibility of a majority winner in the primary, we might call it a jungle primary with survival of the fittest. Or perhaps open primary, since it is truly open to all candidates and voters.
Lubin only needed 20 signatures to get on the ballot. This is similar to the numbers needed to qualify for all primary elections in California, non-partisan or partisan. In fact, SB 6 simply incorporates the existing signature requirements for partisan primaries to all candidates in the open primary.
Lubin was also required to pay a fee of $700, which was 2% of a supervisor’s salary. He didn’t have that much money, and took the case to court. Chief Justice Burger wrote, “[t]his must also mean that the right to vote is ‘heavily burdened’ if that vote may be cast only for one of two candidates in a primary election at a time when other candidates are clamoring for a place on the ballot. It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues. This does not mean every voter can be assured that a candidate to his liking will be on the ballot, but the process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars.” (my emphasis).
California responded to the decision by adding a system where a candidate could gather signatures in lieu of a fee (at the rate of 4 signatures per dollar). Currently, the salary of a Los Angeles County Supervisor is $170,000 and the fee is now only 1% or $1700. If you don’t have the money, you can simply collect 6800 signatures.
If the election for supervisor were a partisan contest, then an independent would likely need even more signatures. A Los Angeles supervisor district has 3 times the population of an average congressional district, and an independent congressional candidate needs on the order of 10,000 signatures simply to permit voters to actually cast a vote for them.
In 2008, there were only 3 independent candidates on the ballot among California’s 153 congressional and legislative races. In two of the three, the independent ran because there would otherwise have only been one candidate on the ballot. Since, 1968 there have been a total of 9 independent congressional candidates on the ballot in a total of 988 races.
So if a voter had hoped to find on the ballot an independent candidate who came near to reflecting his policy preferences on contemporary issues, his hopes would have been dashed, the expectations of the Supreme Court thwarted. The independent qualification standard in California is more onerous than the in lieu petition standard, and is there solely because of the partisan nature of California legislative and statewide elections. As demonstrated for local elections, there is no reason, no justification, no excuse for such barriers to independent candidacies.
But what about candidates seeking a partisan nomination? While it is true that they can get on the partisan primary ballot fairly easily, they first have to register with the party, and then win an electorate that is restricted to a fraction of all voters.
But there are often no or few choices in Californioa partisan primaries. In the 2008 California primary races for US House, California Senate (2006 for even districts), and California Assembly there was NO choice in 68% of Democratic races, and 72% of Republican races. The average number of candidates to choose among (between?) was 1.47 for Democrats and 1.27 for Republicans. There was only a primary “race” in 68 or 10% of 692 minor party primaries, every one with but a single candidate on the ballot.
In California in 2008 it was a forlorn hope that a voter would find a candidate who comes near to reflecting his policy preferences on contemporary issues.
In only 35% of districts was there a minor party candidate on the general election ballot, for the legislature or the US House.
There were 33 minor party and independent candidates on the ballot in congressional races in 2008. Relative to the number of districts, this was fewer than the number in 1968. As recently as 2000, when the blanket primary was used, there were 111. Under the blanket primary, voters could vote for any candidate (except an independent), choosing the one that came nearest to reflecting their policy preferences on contemporary issues.
The Supreme Court killed the blanket primary and your number of minor party and independent congressional choices has dropped by over 2/3 in just 8 years. It may not be 1964, but it is 1968,
If you really think that the US Supreme Court got it right in Lubin you will be supporting Top 2.
#5 Turnout by DTS voters is much lower than partisan voters in the June primary, even though voters are choosing their county and local government officials and voting in non-partisan referendums.
DTS and other votes cast in the 2004 presidential primary was about 1/4 of that in 2000. American Independent voting was down a similar amount. About 1/4 of Democratic voters in 2000 voted for someone other than a Democrat.
If you are restricted to only voting for candidates of one party, it is about as inviting as someone who invites you to dinner, and then keeps checking to make sure you haven’t stolen any of his silverware.
#3 Under the Top 2 system in California, the voters nominate the candidates who appear on the general election ballot.
Parties are free to recruit candidates, provide financial support, make endorsements. The State will even distribute their endorsement on a sample ballot distributed to party registrants.
If there are two candidates who have disclosed a preference in the general election it simply means the voters are making a final choice between the two candidates with the most popular support. All voters can participate in the final decision as to who their representative or other official will be.
#5. In a partisan primary system, voters and ballots are segregated on the basis of party affiliation. Why are certain versions of partisan primaries referred to as “open” and others as “closed” or “semi-closed” or “semi-open”?
#8: States began requiring parties to nominate by primary in the early 1900s. Before that, parties usually nominated by convention or caucus.
In the state-mandated blanket primary, banned in California Democratic Party v. Jones, a voter could help pick the nominees of mulitiple parties. That’s like letting the same people serve as delegates to the Democratic, Republican, Libertarian, etc., conventions.
As Justice Scalia said about the blanket primary in Jones: (paraphrasing) It has simply moved the general election up to the first step in the process, at the expense of the parties’ ability to perform their “basic function” of choosing their own candidates and leaders.
“Under the Top 2 system in California, the voters nominate the candidates who appear on the general election ballot.”
We’ve had this discussion before. I agree with Justice Stevens that the “top two” is a general election with a runoff. A party may endorse/nominate candidates prior to the first round of voting. But the state does not recognize such endorsements/nominations, since (1) multiple candidates from the same party may still appear on the first-round ballot, and (2) a party is not guaranteed to have a candidate in the final, deciding election.
What do you call those who participate in party primaries– Martians? The party primary is the most democratic method of nomination.
Suppose, in the “top two,” (1) a party decides to hold a nominating convention prior to the first round of voting, and (2) the party requires any candidate seeking its nomination to agree to support the convention’s choice(s). This would reduce the voters’ choices in the “top two.”
#8, last paragraph: As I’ve previously said, the “top two” sometimes enables an extreme candidate to reach the final, deciding election, where that candidate loses badly (not to mention that the voters have a lousy choice). David Duke and Cleo Fields in Louisiana’s 1991 and 1995 governor’s races, respectively, are examples of such extreme candidates.
“All voters can participate in the final decision as to who their representative or other official will be.”
That’s also true of a general election that is preceded by party primaries. The difference is that the voter is usually not limited to just two choices per office (in my state’s 2003 general election for governor, e. g., we had five candidates).
#9: “In a partisan primary system, voters and ballots are segregated on the basis of party affiliation.”
The exception is Alaska, where the state Supreme Court permitted the Democrats and minor party(ies) to list all of their candidates on the same primary ballot– a voluntary blanket primary. That ballot is available to ANY voter. The Republicans have a separate primary, in which they invite independents to participate.
Thus independents and Republicans have their choice of either of the two primary ballots, which helps explain why over half of Alaskans are registered independents.
When a party has a closed primary, only members of that party may vote.
When a party has a semi-closed primary, some non-members are invited and some are excluded. In practice, it is independents who are invited and members of opposing parties who are excluded.
When a party has an open primary, ANY voter is eligible to participate. In almost every state where one of the major parties has an open primary, the other one does too.
“Semi-open” is a term that you rarely see used. It’s the same as “open primary, public declaration.” Each primary voter picks a party and publicly declares his choice. In almost all of these 13 states, each voter’s party choice is publicly recorded.
The true open primary is “open primary, private choice,” in which the primary voter selects a party in the secrecy of the voting booth. Eight states, including Idaho, now use this system.
This was written during California’s and Washington state’s “top two” initiative campaigns in 2004.
I just remembered that Florida also sometimes has a blanket primary for certain offices. This is triggered when all of the candidates for a particular office are from the same party; all of those candidates are listed on the primary ballots of both the Democrats and Republicans, as well as the nonpartisan ballot.
In Nevada, when all of the candidates for a particular office are from the same party, the race is settled in the general election. If memory serves me right, the top two vote-getters from that party’s primary are both placed on the general election ballot (if there are only two candidates to start with, and they’re both from the same party, they only run in the general election).
Party hack primaries got going in 1888-1890 — due to having primary election OFFICIAL ballots — to end the massive intimidation / threats after the Civil War by the party hack gang bosses in party hack caucuses and conventions — related also to getting the SECRET BALLOT sections in State constitutions and laws.
Other result — the UN-EQUAL ballot access laws for 3rd parties and independents — something the MORON party hack Supremes have been unable to detect since 1968.
P.R. and nonpartisan A.V. to end the ROT.
#10 You are arguing Jones all over. It is unclear which part of Scalia’s opinion you are paraphrasing (nor Stevens dissent).
Scalia wrote, “[p]roposition 198 is not a narrowly tailored means of furthering them. Respondents could protect them all by resorting to a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot–which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee. 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.”
Clearly, Justice Scalia does not see the non-partisan blanket primary as forming a substitute for the general election, but simply the role primary elections has always meant as a preliminary or first election.
And in a Top 2 primary as implemented in Nebraska and Washington, and as proposed in California, the primary does not choose party nominees. While the implementation in California does not provide for nomination by political parties, it does provide a way that political parties may convey candidate endorsements to voters in the sample ballot included with the Voter’s Pamphlet. And one can hardly complain that ballot access for all candidates including independents is quite modest, the same as candidates expressing a party preference.
There is no requirement that the State recognize party endorsements on the ballot. Do you want the State highway workers to erect yard signs in the road medians as well?
Of course, persons who vote in party primaries are Martians. And when they move their stubby pencil two inches down the ballot from an assembly race to the county supervisor race crossing a heavy black line, it is a teleportation device.
People are free to hold meetings and decide whether they are going to support or endorse a candidate. It happens in non-partisan elections such as in Houston. Some endorsements are by political organizations, others by unions, or various associations. I am not sure whether it is legally enforceable that a person agree not to file for office, or withdraw their candidacy in exchange for a possible endorsement. If they could do that, why not charge a fee (“pay to play”)? Why not require the delegates to the convention to also vote the nominee of the party.
What is the difference between Tom Metzger and David Duke, and Edwin Edwards and Duke Cunningham? You aren’t calling Cleo Fields an extremist simply because he advocated a return to the partisan primary in Louisiana, are you? I hear that women and minorities don’t do so well under Louisiana’s system. When was the last time a minority or woman was elected as governor or senator in Louisiana?
Under the partisan primary system, the decision made in the general election is often not substantive, which might be better characterized as a finalizing action, rather than a decision. You don’t characterize Rodney Alexander’s re-election as a final decision made by all the voters would you? The substantive difference in an election where the candidate of one party gets 80% of the vote, and one where the election is cancelled as in Louisiana is quite minimal.
There were 5 candidates in the 2003 Democratic primary, and 2 in the Republican primary. The trailing candidates (Fountain, McClendon, Perrone, Starr, and Tyner were all bunched around 30,000 each). The 3 also-rans that you chose from among in the general election: Dillon, Cripps, and O’Hara had around 15,000 together, or about 1/2 as many as each of the Democratic and Republican challengers to Barbour and Musgrove. I give more weight to the the 157,000 Republicans and Democrats who didn’t want Barbour or Musgrove than the 15,000 or others who wanted someone else who happened to be of some other party.
I’d bet that Dillon, Cripps, and O’Hare would have received more votes in a Top 2 primary than in the general election, where voters might have been concerned about missing out on choice between Barbour and Musgrove.
And if you look at senate races, about 1/3 had a choice of 1, over 1/2 had 2 choices, and ony 3 had 3 choices, and 1 had 4. I suspect that there were more options in the primaries.
#11 But why do you call it “open” when the ballots and candidates are segregated?
#14: In Scalia’s “nonpartisan blanket primary” (which is incidental narrative), he says the State MAY require the parties to nominate candidates, but he makes it clear that this cannot be done by party primary, meaning that far fewer people would be choosing the parties’ candidates. This would also mean that there would be no more than one candidate per party per office in the first round of voting (after the parties had nominated their candidates).
Again: In the Washington state “top two” ruling of March 2008, Scalia opposed the “top two” and wrote a dissent.
If you’re going to argue for nonpartisan elections, why don’t you promote a “top three” or a “top four,” which would at least give the voters greater choice in the final, deciding election?
“… the role primary elections has always meant as a preliminary or first election.”
The primary election had its origins in 1842 as a county Democratic Party’s method of nominating its candidates. The so-called “nonpartisan primary” appeared about 100 years ago, when municipalities began changing to nonpartisan elections.
Yes, independent candidates have access to the preliminary round of the “top two,” but they almost never reach the final, decisive round, which nearly always features two Democrats, two Republicans, or one Democrat and one Republican. (When lightning strikes and an independent or small-party candidate makes the runoff, he then faces a SECOND general election campaign.)
Louisiana puts the candidates’ party affiliations on its “top two” ballots, and Washington state puts their party preferences. This is done for the voters’ information and convenience.
Since the State does not recognize endorsements or nominations in the “top two,” a candidate’s agreement to support his party’s endorsee(s) is NOT legally enforceable. Any candidate would be free to break his word, as the late Rep. Jennifer Dunn’s son, Reagan, did a few years ago in Washington state when he failed to get the GOP endorsement for a county office.
“When was the last time a minority or woman was elected as governor or senator in Louisiana?”
Kathleen Blanco was elected governor in 2003, defeating Bobby Jindal. Jindal, who is of Asian Indian descent, was elected in 2007.
Mary Landrieu was elected US senator in 1996; she was re-elected in 2002, defeating Suzanne Terrell in the runoff; and Landrieu was also re-elected in 2008.
As to Mississippi’s 2003 party primaries: many voters pick a certain party’s primary in order to be able to vote for their county officials.
If Mississippi had had the “top two” in 2003, neither Dillon, Cripps, nor O’Hara (the small party candidates) would have been on the ballot in the final, deciding election.
#15: When a party has an open primary, it’s OPEN to any voter who requests the party’s ballot.
This is the US Supreme Court’s definition of the open primary. Didn’t you come across that in your reading of California Democratic Party v. Jones?
Don’t you think it’s about time you talked to at least one legislator about the glories of the “top two”? When is the next session of the Texas legislature? I know you can’t wait!
It was in 2005 that Reagan Dunn ran for a county office in Washington state. The two major parties endorsed candidates in preparation for the possibility that the state would use the “top two.”
But the federal judge ruled against the “top two” and ordered the state to hold open primaries instead, so Dunn’s breaking his word became moot.
#16 Justice Scalia in Jones identified the essential element of what he then called a “non-partisan blanket primary”, which was that it did not serve the function of nominating party candidates. He suggested some possible ways that candidates might qualify for the ballot. Just because Washington and California don’t require 10,000+ signature to get on a congressional ballot, doesn’t make it a bad thing does it?
In Grange both Justice Thomas in the 7-2 majority opinion, and Justice Scalia in his dissent reference the non-partisan blanket primary outlined in Jones, though Scalia inexplicably refers to it as a non-partisan general election.
Scalia’s dissent was not against the Top 2 (or Top N) non-partisan primary that he had commended in Jones, but rather the use of party-related information on government-printed ballots in Washington’s implementation.
Why do voters need more choice in the final election when they are only choosing one?
In the early days of the Republic, some States used what were called trials to choose their representatives. If no candidate received a majority, they would simply held another trial in a month or two. Some times, there were 7 or 8 trials. Perhaps you would favor such a system?
“primary convention” has been used since colonial times to refer to a preliminary convention, either to prepare and organize a subsequent more general convention, or as the first stage in a series of convention (eg such a the precinct conventions in Texas). This usage was especially prevalent in the Middle Atlantic States, such as Pennsylvania. The Crawford County Democrats (IIRC, you told me this) called their election a “primary convention”. So a “primary convention” that was an election later became known as a “primary election”, which is sometimes shortened to “primary”.
It is simply not an abuse of the terminology to refer to a non-partisan initial election as a primary election
When was the last time Washington elected a woman or minority as its governor using its blanket primary or Top 2 primary.
If Mississippi had used the Top 2 system why should Dillon, Cripps, or O’Hara have appeared on the general election ballot? They wouldn’t have been on the general election ballot unless Mississippi had used a Top 8, Top 9, or Top 10 primary.
The Texas Legislature next meets in 2011. Don’t you think KBH would prefer a Top 2 election for governor? Texas will of course use a special election that is identical to that proposed in California under Top 2.
#18: I think you need to re-read what Scalia wrote about the “nonpartisan blanket primary” in Jones. He calls the first round of voting the “primary” and says that the State MAY require the parties to nominate candidates prior to the “primary.” He then says that the “NBP” passes constitutional muster because “Primary voters are not choosing a party’s nominee.” Thus (1) IF the State requires the parties to nominate candidates, then (2) it will have to be by a method other than the party primary, e. g., convention, caucus, etc.
So IF the State compels the parties to nominate candidates, the voters will have fewer choices when they go to the polls for the first time, as there would be no more than one candidate per party per office on the ballot (all independent candidates, of course, would be on that first ballot regardless. Neither Louisiana nor Washington state, to be sure, requires the parties to nominate candidates in their “top two,” nor does the California “top two” proposal).
“Why do voters need more choice in the final election when they are only choosing one?”
When a certain party does not have a candidate in the final, deciding election, that party’s faithful voters are disenfranchised. And when both of the final candidates are from the same party, that party is split.
And when a small party’s message is kept out of the final election– which is almost always– the party loses its main reason for existing.
The Crawford County (PA) Democrats called them “primary meetings,” and they worked much like what we now call caucuses.
“When was the last time Washington elected a woman or minority as its governor using its blanket primary or Top 2 primary?”
Is this a serious question? Dixie Lee Ray was elected under the blanket primary in the 1970s (?), as was Gary Locke, an Asian-American, in 1996 (?) and 2000. The state had separate party primaries when Christine Gregoire was elected in 2004; she was re-elected in 2008 under the “top two.”
In 2003, Dillon, Cripps, and O’Hara appeared on the general election ballot as the gubernatorial nominees, respectively, of the Green, Constitution, and Reform parties. If Mississippi had used a “top two,” they would not have been on the final ballot, and those three parties’ messages would have been kept out of the most important election. And those parties’ faithful voters would have been disenfranchised.
Why don’t you ask Senator Hutchison what she thinks of your prized “top two”?
Mississippi uses the “top two” for all of its special elections, as well as the election of state and county judges and county election commissioners (there is no second round when one candidate gets 50%-plus in the first round).
BTW: In Mississippi, candidates for state and county judge and county election commissioner first appear on the ballot in the general election. I don’t think you could call that a “primary.”
If a runoff is necessary, it’s held several weeks after the general election.
Between 1998 (?) and 2006, Louisiana’s congressional candidates first appeared on the ballot on the first Tuesday after the first Monday of November. Would you call that a “primary”?
A runoff, if needed, was held on the first Saturday in December.
#20 Scalia in Jones says that the State can set qualifications that are necessary to be met for ballot access under the NPBP. A qualification is a requirement that would-be candidates must meet.
He then suggests qualification that States might use. For example a State might require candidates to be nominated by their party. This was the system that Washington used for minor parties for their pre-Jones blanket primary. And a State might require independent candidates to file a signature petition. For example, California requires a petition with around 10,000 signatures to qualify as an independent for congress (only 9 have done so over about the last 1000 races), while only 40 are needed to qualify for a party primary.
But Scalia surely understands the difference between may and shall. So a State need not have a method by which parties qualify candidates for a NPBP, or that gives independents have a different qualifying standard. In fact, in his dissent in the Washington case, he references the Court’s opinion in Jones, and states that Washington could hold a NPBP in which no party names appear on the ballot.
Surely it is preposterous to combine the two Scalia opinions to mean that (1) a State could require parties to nominate candidates outside the primary system, who would then appear on the ballot with no party identification; and (2) a State could require independent candidates to meet a separate petition standard and also have no “Independent” identification on the ballot.
Joe Tuna files as the nominee of the SalmonYoga party after a meeting of its 3-person executive committee; while Nonpa R. Tisan collections 10,000 signatures – and the State puts both candidates on the ballot with no party identification? That would be silly.
The open primary system in use in Washington, and that proposed for California do not have the crucial defect identified by Scalia in Jones: they do not serve to make party nominations.
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You claim that if a voter’s party does not have a candidate on the ballot, that its voters are “disenfranchised”. But they are in no way prevented from voting for any of the candidates who do appear on the ballot. What if a candidate for your party does appear on the ballot, but you vote for someone else, or skip the race entirely. Isn’t this precisely what it means to exercise your franchise to make a choice. Just because you don’t like the choices that are offered doesn’t mean you are disenfranchised. It means not enough voters supported the candidate you might have preferred at the primary.
Voters are individuals. Whether groups of individuals cast their votes for the same candidate or “split” it between different candidates is irrelevant. You might as worry about the electorate as a whole being “split”.
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The purpose of a political party is to support the election of its candidates. If there is a two-stage process, and a party is almost always unsuccessful at the first stage, they would almost always be unsuccessful under a single stage process.
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The Crawford County (PA) Democrats adopted a term that had long been in currency in the USA.
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Those opposing the 2004 Open Primary initiative in California (Prop 62?) claimed that Louisiana’s system discriminated against women and nonwhite persons. It appears that the percentage of women and blacks in the Louisiana and Mississippi legislatures are similar despite the use of different electoral systems.
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Dillons, Cripps, and O’Hara, at least as a matter of law, were seeking election to become governor. Whether they were also doing so to put their party’s message before the electorate, pick up campaign groupies, or personal vanity, is immaterial to the State of Mississippi’s purpose for holding the election. There is absolutely no reason that the State of Mississippi should give them preferential treatment over any of the other seven candidates who sought to be elected governor.
All voters, whether faithful to their party or not, would have been able to vote for Barbour or Musgrove in the general election.
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Do you think that Senator Hutchison will sponsor legislation to require Top 2 elections (such as she was first elected under) for congressional elections? How about the ‘John Tower Special Senatorial Elections Act of 2009’?
#20 In Love v Foster the 5th Circuit refers to the election on the November date imposed by the district court as an “open primary”.
Current Louisiana law refers to the October election, such as the 2007 election at which Bobby Jindal was elected governor as a “primary”.
I found the 2006 bill by the extremist Cleo Fields that reimposed partisan primaries which resulted in the use of lockout devices to prevent voters from exercising their constitutional right to vote. It appears the when Louisiana codified Love v Foster they left some of the old language which called the October election in even years the congressional primary, and referred to the November election as a “congressional election”. In Louisiana (as in Mississippi) it would be inappropriate to call an election in which so few offices are contested a “general” election.
Would you call the November 2008 activity in which Charlie Melancon and Rodney Alexander became representatives an “election”?