On February 10, the Public Policy Institute of California issued this 17-page analysis of whether California’s top-two open primary, Proposition 14, would create more moderate elected office-holders. The PPIC was created in 1994 by a bequest from William Hewlett (of Hewlett-Packard fame) to conduct research on California’s economic, social and political issues. It is non-partisan and non-profit. This PPIC Report is authored by Political Scientist Eric McGhee. The report also contains a 47-page appendix, presenting the data about primary system effect on whether politicians become more moderate or not.
The conclusion, on page 12, says, “In short, the top-two vote getters primary would probably have a noticeable but modest effect on voting and representation in California. Crossover voting rates could be high, but perhaps in only a handful of races. Moderates might benefit, but only slightly more often than under the current system.”
McGhee will speak about his report in Sacramento, at noon, February 23, at 1020 11th Street, in the offices of the PPIC. His report generally draws conclusions from California’s blanket primary experience in 1998 and 2000, with some research from Washington and Louisiana, the only two states that have used the top-two system.
McGhee has said verbally that his report is not a legal analysis, that it is only to consider the subject of whether it is true that Proposition 14 would create more moderate office-holders. However, his report does make a few legal observations, some of which are not correct. On page 6 he writes, “The U.S. Supreme Court upheld the constitutionality of this reform.” Actually, the U.S. Supreme Court only upheld the idea on its face, not as applied. Furthermore, the Court only upheld it facially against the charge that the measure violates the freedom of association of political parties. The Court specifically said it was making no judgment about the trademark and ballot access issues. Because the U.S. Supreme Court did not finish the case, it is still pending in U.S. District Court in Washington state.
McGhee also says, also on page 6, “The drafters of California’s TTVG initiative have copied the Washington laws in virtually every respect.” That sentence is not accurate. Washington does not have registration by party, but California’s Proposition 14 not only retains registration by party, it depends on it to determine ballot labels. Washington does not limit any candidate’s choice of party label (except that the label must be no longer than 15 characters and must not be obscene), but California won’t permit labels other than the names of qualified parties.
Also, Washington state will count write-ins in November, but the implementing language for California’s Proposition 14 says they can’t be counted in November, for Congress and state office.
The The Los Angeles Times column includes the L.A. Times’ columnist’s own claim that Proposition 14 would not exclude minor parties from the general election, presented to suggest that such an idea comes from the report. The report did not discuss that subject. Furthermore, the blanket primary data strongly rebuts the idea that minor parties would ever place first or second in the first round.
KQED has this description of the report.
One more useless JUNK report — among thousands of like reports.
REAL reforms —
P.R. and nonpartisan A.V.
NO primaries are needed.
Judge Coughenour in his August 20, 2009 order dismissed the ballot-access and trademark claims.
Richard Winger writes:
The Los Angeles Times story on the report contains a fabricated quotation. The Times says, “Proposition 14’s ‘constitutionality is not in serious doubt,’ the institute report says.†There is no such quote in the report.
Page 6 of the PPIC report says the following:
“Since the drafters of California’s TTVG initiative have copied the Washington law in virtually every respect, the initiative’s constitutionality is not in serious doubt.”
The quote is accurate. The report is slightly inaccurate in that it characterizes Proposition 14 as an “initiative”. It was the legislature that proposed the constitution amendment that will be voted on, though it may be vernacular to refer to all ballot measures as “initiatives”. For example, see the introduction to the PPIC report where it says that the legislature placed the “initiative” on the ballot.
The measure was only recently designated as “Proposition 14”.
While the Los Angeles Times column omits the reasoning that the PPIC report used to draw its conclusion, this is quite reasonable given the length of the column.
And of course, certain areas where Proposition 14 does not follow the Washington law, strengthen the California’s proposition’s claims to constitutionality.
For example, California maintains election of party officials as partisan affairs. Judge Coughenour has said that the parties might continue their claims in that regard in Washington.
The provisions of Proposition 14 are severable. There is absolutely no doubt that an electoral system where all voters and candidates may participate regardless of their party preference may participate. Even Justice Scalia agrees with this.
What is at issue is what inferences voters may draw by seeing a candidate’s party preference on the ballot. Removing the party preference from the ballot is the simplest way to correct that.
The ballot access claims are bizarre. No one has ever suggested the manner in which California elects its Superintendent of Public Instruction is unconstitutional or that because someone finishes 3rd in the primary that they were denied their right to be on the general election ballot. And can anyone seriously conclude that reducing the signature requirement from 176,000 to 100 for statewide office is imposing a barrier to access to the ballot?
#3: “There is absolutely no doubt that an electoral system where all voters and candidates may participate regardless of their party preference [is constitutional]. Even Justice Scalia agrees with this.”
In his dissent in the March 2008 Washington state case, Justice Scalia opined that the “top two” is unconstitutional on its face.
“Removing the party preference from the ballot is the simplest way to correct that.”
You obviously wouldn’t mind removing political parties from the universe, especially small parties.
Thank you very much, Jim. I am correcting the post.
As to your point about Judge Coughenour’s upholding the Washington law on ballot access and trademark, that will be appealed to the 9th circuit.
As I see it, the very high number of signatures needed for Independent candidates should be changed to be the same number as the 2 major party requirements. Also the major party registration could be changed from 5% to 10% After all, in some districts the Decline-to-State registration is NOW substantially higher than it is for one of the 2 major parties.
Richard:
As a Constitutional Amendment how would it over-lay the Sections in the Election Code that directly describe the how of party’s organization? Particularly, the way the State Central Committees are structured?
Prop. 14 is written to apply only to elections for Congress and partisan state office. It wouldn’t change anything about party structure. On the issue of how many signatures independent candidates need under the existing law, I have asked Senator Loni Hancock to introduce a bill to lower the number of signatures. She has my request but hasn’t responded to it yet. If you live in California, please ask your legislator to introduce such a bill. The legislative counsel has already drafted it, so no legislative deadlines have been missed. The draft is RN 10 03536.
For all morons —
Nominations by PUBLIC Electors for PUBLIC offices is PUBLIC business — NOT party hack business.
The regime has TOTAL control over what part of ALL Electors do the nominations — some fraction(s) or 100 percent.
100 percent in the top 2 Prop. 14.
It always surprises me when DemoRep says that nominations for public offices are public business. His statement surprises me, because he lives in a state in which the minor party he is a member of regularly nominates for public office by convention, and DemoRep always accepts a nomination for public office at that privately-run and financed party meeting. Maybe he would give us a more personal account sometime about that.
Richard Winger writes:
“The Los Angeles Times story also includes the L.A. Times’ columnist’s own claim that Proposition 14 would not exclude minor parties from the general election, presented to suggest that such an idea comes from the report. The report did not discuss that subject.”
Page 4 of the PPIC report says that the presence of minor party candidates on the general election ballot will be rare. It then goes on to give the experience of Louisiana and Washington of having two candidates from the same party on the general election ballot.
The Los Angeles Times column (not story) suggests that in some districts both general election candidates would be from the same party. It goes on to say that is not inconceivable that a Green Party candidate might finish 2nd in a San Francisco legislative district, or a Libertarian might in an Orange County district.
In his 2003 run for mayor, Matt Gonzalez did finish 2nd in the general election, garnering 23.5% of the vote in 13th Assembly District (and recall that Tom Ammiano was also on the ballot). In the runoff, Gonzalez had 53% of the vote in the 13th Assembly District. He had only 38.9% of the vote in the part of the county within the 12th Assembly District.
Gonzalez also received 49.85% of the vote in the 8th congressional district, trailing Gavin Newsom by only 600 votes out of 200,000 votes.
It is certainly not inconceivable that a Green Party candidate could finish 1st or 2nd in a partisan race for the 13th Assembly District. The problem is that the Green Party has never nominated a candidate for that district.
Voters vote differently in non-partisan elections that have no party labels on the ballot, than they do in elections with party labels on the ballot.
The scope of the I-872 trial this October is to examine any harm to association. The top-two runoff itself is not under consideration.
The Republicans and Democrats are delusional if they think Washington voters will accept exclusive partisan ballots in the primary. If I-872 is struck down and partisan primaries return – look out for an effort to make all elections in Washington non-partisan and see how voters will approve it.
And this gets us to I-872 and even Prop 14. – why the associational legal gymnastics when there can be a simple non-partisan ballot instead?
#4 Scalia was referring specifically to the implementation of Top 2 in Washington. In Washington, “partisan primaries” were converted to elections where candidates could express a party preference. The Top 2 election mechanics are secondary to that. And the provisions of the Top 2 primary were not severable.
Proposition 14 retains partisan primaries for party offices. It creates a voter-nominated office in which voters regardless of party preference may vote, and which candidates regardless of their party preference may run for office. The expression of their party preference on the ballot is secondary to the concept of a Top 2 election, and is not essential to its implementation. It is clearly severable.
#11 Voters vote differently in all elections. Your examples for San Francisco included one where Matt Fong was running and picked up 3 times as many votes from San Francisco than any other Republican, and another when former Mayor Diane Feinstein was running.
It is pretty irrelevant whether a statewide 3rd party candidate comes in 2nd in the 12th most populous county in California. But a 3rd party candidate could well finish 2nd in the congressional district or assembly district that are wholly in SF. After all, an independent congressional candidate finished 2nd in 2008.
The other assembly district is more of a challenge since it is the more conservative part of the city and is partially in San Mateo County, and both senate districts are at least half or more outside the county.
# 9 Nominations for PUBLIC offices by minor parties in my local state regime is controlled by a PUBLIC law — since about 1925.
The PUBLIC Electors of the State in the various election areas do the nominations — who happen to connected with the minor party involved.
—-
Internal party hack stuff is done separately — i.e. choosing minor party officers and platform stuff.
See the 1989 Eu case in the Supremes.
——-
This AIN’T the bad old days before OFFICIAL i.e. PUBLIC ballots came along in the late 1880s — when the party hacks watched how the voters voted and made purge lists for voting the wrong way.
P.R. and A.V. — more steps to END the EVIL rule of the party hacks.
California law recognizes that a voter may be affiliated with a non-qualified party. It forbids anyone other than a voter from changing their party affiliation. It requires county registrars to provide counts of voters who have declared an affiliation with miscellaneous non-qualified parties, as distinct from that of qualified parties, political bodies attempting to qualify, and declined to state voters. California counts affiliations made prior to an attempt for a party to qualify, including affiliations made by a voter with a party when it was previously qualified. California treats affiliated with non-qualified parties differently than DTS voters in primary elections.
Prop 14 recasts party affiliation from “declaration of an intent to affiliate a with a party at the next primary” to “disclosure of party preference”. It also explicitly requires that no affiliations be changed due to Prop 14, but otherwise does not change the affiliation scheme.
A voter is required to sign his voter registration application to signify that it correct and truthful, subject to perjury charges. If a voter was forced to indicate that he preferred a “qualified party” or did not have a party preference, it would it would have the effect of forcing the voter to commit perjury.
Party qualification as it now exists will continue to be used for (1) holding presidential preference primaries; (2) ballot-access for presidential candidates; and (3) elections of party offices. Prop 14 while removing the privilege of nomination in the formal state-recognized sense, provides a mechanism by which party endorsements are distributed to voters with the voter’s pamphlets.
So if a voter discloses a preference for a non-qualified party, they will not be permitted to vote in a presidential preference primary; will not be permitted to have a candidate of his preferred party appear on the general election ballot identified as the nominee of the party; he will not be able to run for party office of a ballot-qualified party in the primary.
But he will be able to vote in the primary for voter-nominated offices, and also to run as a candidate for nomination by the voters in the primary. He is guaranteed the right to do so, regardless of his party preference. “Regardless” means that the State of California may make NO distinction among candidates and voters with respect to their party preference.
SB 6, the implementing legislation adds the following definition to the Elections Code:
Section 300.5. “Affiliated with a political party” as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or her affidavit of registration.”
That is, a voter who disclosed a preference for the SalmonYoga Party on his voter registration is affiliated with that party if he a candidate for a voter-nominated office. He is not the nominee of the SalmonYoga Party. He is not seeking to secure the nomination of the SalmonYoga Party in the primary. But he has disclosed a preference for the SalmonYoga Party and is entitled to have that disclosure appear on the ballot.
SB 6 also adds the following definition:
Section 359.5. (a) “Voter-nominated office” means a congressional or state elective office for which any candidate may choose to have his or her party preference or lack of party preference indicated upon the ballot. …”
The key point is that it is the candidate’s party preference that may be indicated on the ballot; not a false preference for some other party, or a professed lack of party preference, when he had previously disclosed a party preference and signed his registration to indicate that it was truthful and correct.
When a candidate files his declaration of candidacy (Section 8002.5) he may indicate that the preference that he disclosed on the his registration should appear on the ballot; alternatively he may indicate that no designation of preference or lack thereof shall appear on that ballot.
If a candidate has disclosed a preference for the SalmonYoga party on his voter registration, then he can choose to have that preference appear on the ballot, or that no indication of preference appear on the ballot. He may not indicate a preference for another party. He may not indicate that he has no party preference. Declarations of candidacy must be sworn and notarized.
When preparing ballots (Section 13105) county election officials are required to place “I prefer the ____ Party” or nothing, if a candidate has disclose a preference of his registration. Whether that disclosure appears on the ballot is the choice of the candidate. A candidate who has expressed a preference for a party on his registration does not have the option of having “No Party Preference” on the ballot. If a candidate who had disclosed a preference on his registration for the SalmonYoga party was forced to leave the preference blank on the ballot, it would be coerced speech.
Proposition 62, which the voters turned down in 2004 did in fact have a provision that restricted candidates to expressing a preference for a qualified party. This demonstrates that the law drafters had the words to limit expression of a preference to ballot-qualified parties. But Proposition 62 can not be binding on Proposition 14, especially since these provisions were left out.
Richard Winger or Steve Peace have yet to explain based on the actual language in SB 6 and SCA 4 why they believe that a candidate may not have his party preference appear on the ballot?
Senator Maldonado’s staff person who handles SB 6, as well Steve Peace (former State Senator who wrote the initiative upon which SB 6 is based), and various county elections officials, all agree that only the names of qualified parties may be printed on ballots. If the authors of the measure and the people who will implement all agree, that seems definitive to me.
If Proposition 14 is passed and SB 6 becomes operative, then the California Elections Code will provide:
Section 13(b). A voter has a right to cast a write-in ballot in all elections; a candidate has a a right to campaign for office as a write-in candidate.
Section 13207. A write-in space must be provided for all offices on all ballots.
Section 15341+2 Write-in votes are counted only if candidate has complied with Part 3 of Division 8 (beginning with Section 8600)
Section 8600 requires that a write-in candidate is required to file a statement of write-in candidacy in a timely manner, along with a petition.
Section 8605(b) provides that a write-in candidate in primary for a voter-nominated office qualifies for the general election office if they finish 1st or 2nd (this contrasts with the current requirement for partisan primaries where a write-in candidate must receive 1% of the votes cast for the office the last time it was contested). [Washington state requires 1% of the votes cast to qualify in its Top 2 requirements, so it is actually easier to qualify as a write-in candidate in California than it is in Washington. Washington also applies its sore loser provisions to declared write-in candidates in the primary who do not qualify for the general election.]
Section 8606. This section is gobbledygook. Since it would appear to contradict all the above sections and would restrict the right to vote, it would be subject to strict scrutiny. I don’t think a court would permit enforcement of gobbledygook in such a case.
It has two possible interpretations:
(a) A write-in candidate may not be elected in a voter-nominated general election, even if they receive the most votes. This interpretation parallels the construction of existing section 8605 (8605(a) under SB 6) that says write-in votes are counted, but do not necessarily result in nomination.
or (b) Write-in votes may not be counted. Note that this interpretation requires the word “person” to be interpreted as “vote”.
Under either interpretation they are directives for election officials, and are not something that the candidate could comply with, so they can not be construed as being part of the requirements of Part 3 of Division 8.
If interpretation (a) is used, then ballots will have a write-in blank; a candidate could file to be a declared write-in candidate; the votes for the candidate would be tabulated; and even if the candidate receives more votes more than any other, he won’t be elected. I don’t think any court would uphold such a scheme as being constitutional.
If interpretation (b) is used, then it is directly contradiction of the rest of Election Codes. A voter may cast a write-in vote; the state will provide the blank space on all ballots for the purpose of casting write-in votes; a candidate may file a statement of write-in candidacy so that his votes will be counted BUT the votes won’t be counted. In this case the courts resolve the conflict by tossing out the gobbledygook.
Do you have a copy of the initiative that Steve Peace prepared?
Does the Secretary of State agree with that interpretation?
Who is responsible for Section 8606 (added by SB 6). Was that in Steve Peace’s initiative? Was the same Maldonado staffer responsible for that. Do the county election officials agree with your interpretation of 8606?
# 18 Does the latest and greatest election law section apply in case of conflicts — due to the party hacks NOT looking at earlier sections on the subject ???
One more case for the hard working CA Supremes in the very near future ???
Gee – how many election law variables can there be for the MORON party hack gerrymander MONSTERS to play games with — aka rig and manipulate — to keep themselves in power ???
P.R. and A.V.
#5 & 12 See State of Washington’s 2/4/2010 motion to strike (most of) Democratic Party’s amended complaint. The political parties simply ignored Judge Coughenour’s order.
In Washington, there is one senator and two representatives elected from each Legislative District. This gives an opportunity to see the political alignment of the district in those cases where there were two Democrats or two Republicans on the ballot.
LD7 Representative Position 1 Two Republicans. The Republican candidate in the other position was unopposed. In the primary, there were 5 Republican candidates and no Democrats or other candidates. Under the partisan primary system, this representative would have been determined on a plurality vote of Republican voters in the primary (the leading candidates had 26.7% of the vote).
LD8 Representative Position 2 Two Republicans. There were two Republicans in the primary and no other candidates so both advanced to the general election.
In the other position, a Republican defeated a Democrat by a 52:48 margin. This was the only district in the state where the losing party candidate was credibly competitive. In the primary, there was the single Democrat and 4 Republicans.
In 2006, Republicans had been unopposed for all 3 seats (2 Representative and 1 Senator).
LD11 Senator Two Democrats. Three Democrats and no other candidates had run in the primary. Democrats defeated Republicans for the representative seats by 72:28 and 74:26 margins.
LD12 Representative Position 2 Two Republicans. There were two Republicans in the primary and no other candidates so both advanced to the general election. The Republican candidates for the other Representative position and the Senate seat were unopposed.
LD22 Senator Two Democrats. There were two Democrats in the primary and no other candidates so both advanced to the general election. The Democratic candidate for one representative position was unopposed, and for other position, the Democrat defeated the Republican by a 71:29 margin.
LD27 Representative Position 1 Two Democrats. There were two Democrats and two Republicans in the primary, with the Democrats together having 73.3% of the vote. If the 4th place Republican had not run, at least 94.4% of his supporters would have had to switch to the other Republican for him to finish in the Top 2.
In the senate seat, the Democrat won by a 67:33 margin. In the other representative position, the Democrat won by a 74:26 margin.
LD36 Representative Position 1 Two Democrats. There were two Democrats and one Republicans in the primary, with the Democrats together having 84.6% of the vote. The 2nd place Democrat had 2.6 times as many votes as the Republican who was eliminated.
In the other Representative position, a Democrat defeated a Republican by a 85:15 margin.
LD46 Representative Position 1 Two Democrats. There were two Democrats and one Republicans in the primary, with the Democrats together having 85.1% of the vote. The 2nd place Democrat had 2.4 times as many votes as the Republican who was eliminated.
In the other Representative position, a Democrat defeated a Republican by an 83:17 margin.
Summary. There were 8 legislative general races with either 2 Republicans or 2 Democrats. In 5 districts, no candidates of the other major party nor any other candidates filed for the primary.
In the other 3 districts, all Republicans were eliminated in the primary, but these were in districts where the the Democrats rolled up from 75 to 85% of the vote in contested Democrat-Republican race.
The report conflates open primaries with top-two primaries. It look at data regarding partisanship during periods when open primaries were in place and from that draws conclusions about the top-two primary. They are very different.
Nor does the report at all recognize the gaming and ringer opportunities presented by the proposed top-two primary, which I discuss at http://saveoregonsdemocracy.org/danmeek.html. Briefly:
# 22 ONE actual election will somehow control ALL future elections — i.e. for a ZILLION years in the future ???
P.R. and A.V. — NO primaries are needed — with the #23 machinations.
Richard,
I note the post by Charles Deemer above. Could that post which you answered have something to do
with the fact that he lost in his dispute with Elliott Graham over the AIP having an modified open
primary or not? Mr. Graham asked Chairman Robinson
to keep the primary closed. Deemer wanted it open
to help RINO’s vote for Chelene Nightingale get
block voting from the Reform Party. The AIP SCC
acted on January 13, 2010, by backing Mr. Graham’s
view and trashing Charles Deemer’s view.
Now Deemer is looking for ways to pack the SCC
with RINO’s that back Chelene Nightingale for
Governor. You can see where Deemer is trying to go
with his ideas in post # 6, by trying to change the
way people get on the State Central Committee of the American Independent Party.
Sincerely, Mark Seidenberg, Vice Chairman, American
Independent Party
#23 California senatorial districts are larger than congressional districts, and assembly districts are 2/3 as large. It is pretty dubious that an unknown candidate with no financial support would get much support simply because he had “I prefer the Democratic Party” next to his name. Moreover, SB 6 requires that 10-year registration history of candidates be displayed on the SOS web site, and political parties may have a sample ballot distributed to voters as part of the voters pamphlet at State expense.
In the Louisiana gubernatorial elections there have typically been about 4 to 5 serious candidates (able to get get above 5%) of the vote. In 2007 though there were 12 candidates, Bobby Jindal received a majority (54%) of the vote. 43% was split among three other candidates, leaving 3% for the 8 also-rans.
Louisiana conducts its state and legislative elections in odd-numbered years, which makes it possible for US representatives to run governor without risking their congressional seat. The Louisiana Democratic party is not closely aligned with the national Democratic Party.
Buddy Roemer was a Democratic representative before running for governor, and probably was elected because he unequivocally said that he would not support Edwin Edwards in a runoff simply because he was a Democrat. His “Slay the Dragon” campaign buttons put him into the runoff and such momentum that Edwards withdrew. Roemer switched to the Republican party before running for re-election. Mike Foster was a Democratic legislator who switched to the Republican party just before running for governor. Rodney Alexander switched parties at the filing deadline. Louisiana has many racial, ethnic, language, and religious groups that promotes factional elections that are not necessarily tied to political philosophy. Louisiana also has a fairly stable population that has created many multi-generational family political dynasties such as the Longs.
While Washington restricted the general election candidates to two, it had substantially greater number of candidates per legislative race than did neighboring Oregon. Over 1/3 of Oregon legislative candidates were unopposed in the general election in 2008. There were only two races in Oregon that had three candidates. In 2006, when independent and minor party candidates could appear directly on the general election ballot in Washington, only one legislative candidate bothered.
Since the blanket primary was eliminated in California after 2000, the number of minor party and independent candidates in legislative and congressional races has dramatically declined.
Bobby Jindal had nearly been elected governor in 2003, losing to Kathleen Blanco, 52% to 48%. He was elected to the US House in 2004 and re-elected in 2006. He got a lot of favorable publicity in the wake of Hurricane Katrina in 2005. He’s a very charismatic and attractive politician, so it was not surprising that he won without a runoff in 2007.
The big reason that party labels mean so little in Louisiana is the election systems that it has used. Until the 1970s, the state had a one-party (truly no-party) system; it then adopted the “open primary” (“top two”), which is an extension of the one-party system. In that system, all candidates and voters might just as well be independents.
The point about a system of party primaries is that ALL parties have the power to have a candidate in the general election. Independents are also on the general election ballot, and that’s the only campaign they have to wage.
If the “top two open primary” is adopted, California voters will be guaranteed of NEVER having more than two choices per office in the final, deciding elections for state and congressional officials.
Also, in the “top two open primary,” the top two vote-getters are forced to conduct TWO general election campaigns, as they must communicate with ALL the voters. This makes campaigns more expensive and tends to discourage candidates from running.
The election and a runoff are a month apart. It is really one campaign.
Under a system of party primaries, participation is restricted so that the real choices are made by only some voters in the primary.
Under the blanket primary in California, in cases where there were no actual primary races, the vote distribution in the primary and general election were quite similar, even though fewer persons voted in the primary. There was slightly greater support for minor party candidates, perhaps because voters knew that it was not the final election. So they could vote for the Libertarian, NLP, Green Party candidate knowing that they could still get to vote for the Republican or Democrat in the general election.
Dan Meeks says that too many candidates ran in Louisiana gubernatorial elections, and now you are saying that candidates will be discouraged from running.