At the June 8, 2010 California primary, voters will see two election-law related ballot measures, both put on the ballot by the legislature. One is the “California Fair Elections Act of 2008”, which implements public funding for candidates for Secretary of State in 2014 and 2018. The other is the “Top Two Candidates Open Primary Act, by State Senator Abel Maldonado.
The California Constitution says, “If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.” In June 1988, two campaign finance measures both passed in California. In Taxpayers to Limit Campaign Spending v Fair Political Practices Commission, 799 P 2d 1220 (1990), the California Supreme Court said that if two measures both pass, and they each attempt to create a comprehensive regulatory scheme related to the same subject, only the measure that received the most votes may take effect.
In a later decision, the California Supreme Court said in Yoshisato v Superior Court, 831 P 2d 327 (1992) that if two ballot measures both pass, and they technically both amend the same section, but in different ways, there is no conflict if the two measures were not presented to the voters (in the Official Voters Handbook) as conflicting or competing ideas.
The two election law measures that will be on the June 2010 California ballot do not fit together. The public funding measure has at least eight sections that presume that political parties nominate candidates for state office, and that independent candidates do not appear on the primary ballot. But the top-two open primary sets up a scheme under which parties would not have nominees for state office, and also provides that independent candidates would run in the primary.
The public funding measure sections that conflict with the top-two open primary structure are:
(1) 91045 discusses parties whose nominee for Secretary of State received 10% of the votes at the last election, but under “top-two”, parties wouldn’t have nominees for Secretary of State.
(2) 91046 defines an “office-qualified candidate” as a member of the type of party defined in section 91045.
(3) 91051 defines “party candidate” as a member of a party that holds a primary election, but under “top-two”, parties wouldn’t have primaries.
(4) 91053 defines “performance-qualified candidate” is defined as a member of a party that polled 10% who raises $5 contributions from at least 7,500 voters, or an independent candidate who has raised $5 contributions from at least 15,000 voters, or a member of a qualified minor party that has raised $5 contrib utions from at least 15,000 voters.
(5) 91071(b)(2) refers to a candidate who won a party’s nomination.
(6) 91073(b) says an independent candidate who does not run in a primary may become a performance-qualified candidate by collecting twice as many qualifying contributions as required of an office-qualified candidate.
If both the public funding measure and the “top-two” measure pass, the Maldonado “top-two” measure would take effect, because it is a Constitutional Amendment. But if they both pass, it appears that the public funding measure could not go into effect, because of the California Constitutional provision quoted at the beginning of this post. If they both pass, the public funding measure would make it impossible for any candidate to receive public funding. No independent candidate could receive public funding because of section 91073(b) which only lets independents qualify if they don’t run in a primary. There could be no such independent candidates, because under “top-two”, all independents run in the primary. And no party member could receive public funding because the definitions of candidates who qualify for public funding are all based on that candidate’s party having polled a certain number of votes for Secretary of State in the previous election.
Furthermore, section 91065 says independent candidates may raise contributions from January through June, whereas members of qualified parties may raise contributions from September of the year before the election, through February of the election year. If “top-two” passes, and all candidates run in the primary (even independent candidates) it would make no sense for some of those candidates to be permitted to start raising money in the year before the election, whereas others could not.
Finally, 91095.5 has special rules for candidates who receive public funding who are attacked during the primary season by a candidate running in another party’s primary, but this section has no application if “top-two” passes.
Any state official trying to administer the public funding, if it passed, and if “top-two” also passed, would find it impossible to know how many qualifying contributions are needed to qualify, and how much money should be award to the candidate, because the public funding measure treats major party members, minor party members, and independent candidates, differently from each other for both those variables. The definitions would no longer be operative in a “top-two” world. It seems likely that even if the public funding measure passes, it will be a nullity of “top-two” also passes.
All of which indicate why they both should be defeated…
Is the Top Two Primary even constitutional?
Didn’t SCOTUS hold in California Democratic Party vs. Jones that parties are constitutionally entitled to choose candidates through closed primaries involving only party members?
That’s what this article from the Harvard Law Review says:
http://www.escholarship.org/uc/item/0rx9j9m3
Top-two was written to avoid that problem, because it says parties don’t have nominees.
New Government Code Section 91025 defines a candidate for purposes of the chapter on campaign financing as a candidate for Secretary of State. Both versions of the ballot title (see Section 7 b(1) and d(1)) specify its applicability to the office of Secretary of State. And the ostensible reason for levying a fee-tax on lobbyists is because they are subject to regulation by the Secretary of State.
There are two places in the Constitution that refer to conflicting measures. Article II, Section 10(b) in reference to initiated and referendum statutes; and Article XVIII, Section 4 with regard to constitutional amendments.
It is ill-defined whether there can be a conflict between a constitutional amendment and statute. Both the above sections refer to a conflict between “measures”, but they could be interpreted as a conflict between measures implementing changes in statute in the one instance; and conflict between measures implementing a constitutional amendment in the other.
It seems kind of convoluted that a measure that provides for a voluntary financing scheme that says certain candidates can receive $X for a partisan primary could require that the office must be contested with a partisan primary, notwithstanding what the constitution says. Maybe the People of California simply want the chief elections officer chosen in a partisan election.
But let’s say that the courts rule that the “Fair Elections Act of 2008” takes precedence. There is nothing that would prevent the Top 2 primary from being used for other statewide, legislative, and congressional offices. It might be difficult to defend requiring 176,000 signatures to run as an independent candidate for SOS vs. a few hundred to run as an independent candidate for governor; and to require an independent candidate to gather twice as many $5 contributions to get just as much money as a major party nominee, but adjustments could be made without overturning the entire statute.
If both are passed and go into effect, there will not be any “office-qualified candidates” or “qualified candidates” candidates since no candidates are seeking the nomination of the party. But there could still be “independent candidates”, since all candidates would “not represent a political party that has been granted ballot status for the general
election and who has qualified, or is seeking to qualify, to be on the general election ballot.”
Presumably “ballot qualified” would be narrowly interpreted to mean “ballot qualified” for the general election for the Secretary of State. And a candidate who is attempting to finish in the top 2 in the primary is certainly seeking to be on the general election ballot.
The problem here is that the qualifying period (for gathering the $5 contributions) for independent candidates runs 180 days in the even-numbered year, and would finish after the primary. IIUC, you are limited in your spending to $75,000 in seed money plus any $5 contributions, before you get any State money. So you wouldn’t have any money to spend in the primary.
How likely is the $700 biennial tax-fee on lobbyists to be upheld, when the State says that only $25 are needed to administer the registration system. Isn’t there a right to petition the government?
Thank you for this informative post.
Because the top-two measure is a proposed constitutional amendment and the public funding measure is just a proposed law, it seems to me that if they both pass, the constitutional amendment will take effect even if the public funding measure got more votes. But, that’s just my guess. It doesn’t seem that this has ever been litigated. The court cases involving conflict between two winning California ballot measures only concerned competing measures that both just changed laws, not the constitution.
Richard,
What do you think would happen if both are passed and the top vote count would later be declared unconstitutional?
Sincerely, MARK Seidenberg, Vice Chairman, American Independent Party
When two campaign finance measures passed in June 1988, one got more votes so the other was entirely knocked out by the 1990 California Supreme Court ruling. The one that got the most votes was then held unconstitutional in federal court. So the people who had sponsored the initiative that had polled the lower number of votes tried to persuade a court to recognize that their initiative would now go into effect, but they failed.
#2: What page of that article are you referring to? I looked at the first 15 pages or so, and the only reference to Jones was that parties have more associational autonomy now than ever before.
Jones, of course, struck down California’s state-mandated blanket primary, in which all candidates of all parties were listed on the same primary ballot, with the top vote-getter from each party advancing to the general election.
Some 21 states have open primary systems, in which each voter picks a party on primary day; thus the parties are forced to let ANY voter participate in their primaries. The US Supreme Court has never yet considered a case involving the state-mandated open primary.
In the “top two,” parties may nominate/endorse candidates, but the state does not recognize those nominations/endorsements.
More work for the CA Supremes to slog through if both props pass.
Many State regimes have a provision stating that if 2 or more conflicting props pass, then the prop with the most votes takes effect.
#9 Under the blanket primary, voters were determining the nominees of the parties. As Justice Scalia noted in Jones an open primary as is proposed in California would “have all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee.”
Again and again —
Nominations for PUBLIC office by PUBLIC electors is PUBLIC business — NOT party hack business.
The regimes have ABSOLUTE power to determine what persons get on the PUBLIC general election ballots — open primary, closed primary, top 2 primary, caucuses, conventions, WHATEVER.
This AIN’T atomic physics.
P.R. and A.V. — NO primaries are needed — to save some taxpayer cash for other things.
It’s obvious that Justice Scalia doesn’t think that the Washington and California top-two measures are what that justice described in his 2000 decision. Scalia obviously thought that his brain-child, dreamed up in his 2000 opinion, would be constitutional. But Scalia dissented from the March 2008 US Supreme Court opinion that said the Washington top-two system isn’t unconstitutional on its face. Scalia thought the Washington system is unconstitutional on its face, so whatever it was he imagined in 2000 was not what Washington uses, and what California will be voting on.
#11: Justice Scalia called his brainchild a “nonpartisan blanket primary”— NOT an “open primary.”
Scalia also said that the State MAY mandate that the parties nominate candidates prior to the first round of the “nonpartisan blanket primary.”
http://en.wikipedia.org/wiki/California_Democratic_Party_v._Jones
One more obsolete piece of Supremes JUNK — due to the IRRATIONAL *thinking* in the MORON opinion.
i.e. the MORON Supremes keep making WRONG classifications of the LAW — which then become obsolete stupid and which sooner or later get over ruled by later Supremes.
See 12 above.
#13
In his 2008 dissent, Scalia wrote, “[Washington] is entirely free to decline running primaries for the selection of party nominees and to hold nonpartisan general elections in which party labels have no place on the ballot. See California Democratic Party v. Jones, 530 U. S. 567, 585–586 (2000).”
The reference is to the majority opinion that he wrote in 2000. But his 2008 description does not match his 2000 description of what he then referred to as a “nonpartisan blanket primary”. When I had read his opinion in Jones, I thought he was referring to the system used in Louisiana, which certainly does use party labels.
So we can only guess what he had in mind in 2000 – other than a key element of a constitutional system is that the political parties do not nominate a formally recognized candidate in a primary election.
Justice Thomas writing for the court in 2008, also refers to the opinion of the court in 2000. But he simply notes that the court in 2000 had not considered the possibility of a non-nominating Top 2 primary “that indicates each candidate’s party preference on the ballot”.
A 7-2 majority of the court agrees, that Washington at least deserves the benefit of the doubt, that its system does not nominate party candidates, and that there is no right of nomination by political parties.
A better system would have been that proposed in Oregon where the ballot would have carried both party endorsements and party affiliations of candidates. The Top 2 proposal in California does provide a means by which the State will distribute information of party endorsements of candidates.
#14 Justice Scalia’s use of the permissive “may” recognizes that it voluntary whether a State provides a nomination mechanism. There is no right of party nomination, other than as a legal right voluntarily granted by a State.
The briefs from the three parties do not appear to understand this.
#17 more — Perhaps the genius judge in the case will be able to read the English language in the 2008 top 2 WA case and blow the MORON party hack arguments and briefs away — with more standard party hack appeals — UNTIL the Supremes can finally finish off the party hacks in a final opinion.
P.R. and A.V. — NO primaries are needed — to be noticed in what century by the Supremes — even in a footnote ???
This stuff AIN’T atomic physics.
Party hack subgroups of all Electors — A, B, C, etc.
Independent Electors.
The sovereign States have the various options of who gets to nominate candidates who get put on the PUBLIC general election ballots — ALL voters or SOME voters (party hacks with or without independents) — a LIMITED number of possibilities.
Much too difficult for the Supremes to understand.
Heaven help the U.S.A. from the MORONS on the Supremes — due to being appointed by party hack MORON Prezs.
#17: Political parties do indeed have a First Amendment right to nominate candidates. BUT… in a nonpartisan system (“top two open primary”), the state does not recognize any such nominations.
Thus, even if a party nominates//endorses a candidate, other candidates from that party can still legally run in the “top two open primary.” And of course, there is no assurance that the party will have a candidate in the final, deciding election.
In a nonpartisan system, a party could even conduct a primary at its own expense to choose candidate(s).
#18: It would be a good idea for you to read the US Supreme Court’s March 2008 ruling on the Washington state “top two,” as you continue to demonstrate that you have not done.
#16: In your last paragraph, you mention the “top two open primary” system proposed in Oregon.
In November 2008, just under 66 percent of Oregon voters said “no!” to that system.
#19 Justice Scalia wrote in Jones that a State might require party nomination for access to a non-partisan primary ballot.
Political parties have a 1st Amendment right to support candidates.
Any person who is qualified to hold an office may be a candidate for that office. This is an individual right – they are not owned by the political parties.