TOP-TWO PRIMARY SYSTEM LOSES SUPPORT

Recent statements and events show that support for top-two primaries is waning. Top-two systems provide that all candidates run on the same primary ballot, and only the two candidates who placed first or second may run in the general election. Two states, California and Washington, use this system for all federal and state office except President and non-partisan office.

California

On October 21, the League of Women Voters of Alameda held a forum on California’s top-two system. Even though top-two has been an issue in California since 2004, no unit of the California LWV had ever held a forum on the system, until the recent Alameda meeting. By contrast, the state Leagues of Arizona and Washington had already studied it years ago and come out against it.

The Alameda meeting had three panelists. State Controller Betty Yee said it’s too early to evaluate the idea. She said California does have more fiscal stability now, but that is the result of Proposition 25 (which ended the rule that the budget had to pass by two-thirds in each house), Proposition 30 (a temporary tax increase) and Proposition 28 (which eased term limits for legislators). She sees some "gaming of the system" in which activists from one party recruit candidates from the other major party to splinter the other party’s vote in the primary.

She also said Proposition 14 increases campaign expenditures, and she said, paradoxically, it might increase the power of the leaders of the two major parties. She added that it injures minor parties. And she added that it is "dumb" that candidates who poll over 50% in June must still run again in November. Nevertheless, she said she is not willing to give up on the idea yet.

Jennifer Ong, a Democratic candidate for the legislature in 2012 who did not get elected, said "The big change is money. In effect, having to run two general election campaigns increases campaign costs. The people who make money off campaigns are so happy!"

U.C. Berkeley political scientist Ethan Rarick said that the top-two system in California has lead to lower voter turnout so far. He also said that approximately 50% of "orphaned voters" (those without a member of their own party on the November ballot) leave their ballots blank rather than vote for the candidate of some other party. And he said that research shows that primary voters tend not to know which candidates are "moderates" and which are not, so hopes that the system would help moderates win have not been fulfilled.

Florida

A top-two initiative is circulating in Florida. On October 21, WMNF radio in Tampa held the first debate on the proposal. Dan Meek argued against the initiative, and Dr. Omar Ali argued for it. Meek is an Oregon attorney; Ali is a History Professor in North Carolina and a leader of Independent Voting.

Meek made a strong argument that a top-two system causes "vote splitting", in which one major party is at a severe disadvantage if it has too many members running, relative to the other major party if that other party only has two candidates running. Meek mentioned that this flaw forced the voters of the 31^st U.S. House district to elect a Republican in 2012, even though the district is strongly Democratic; and the same thing almost happened again in 2014 in the same district. Ali, in response, said that a top-four system would be just as good.

Arizona

Paul Johnson is a former Mayor of Phoenix who was responsible for getting a top-two initiative on the Arizona ballot in 2012 (it did not pass). Now he is organizing to get a new initiative on the ballot, but it calls for non-partisan elections for all federal, state and county office, except that President would still be partisan. But for all other office, no party labels would be on any ballot. The draft of his new initiative is still not on the Secretary of State’s web page, but it should be soon.

Nevada

On October 21, Doug Goodman, a Nevada activist who was instrumental in getting a bill for a top-two system introduced in the Nevada legislature this year, said he now favors abolishing primaries and letting all candidates run in November, with instant runoff voting. He has drafted a bill to implement this idea. It will be introduced in the next legislative session.

Congress

HR 2655, the bill to impose top-two systems on all states, was introduced on June 4. Despite a well-funded campaign by Independent Voting, after six months the bill still has only three co-sponsors.

Outlook for 2016

So far, every statewide top-two election has resulted in one Democrat against one Republican (and no one else) in November. But polls show that the U.S. Senate election in California in November 2016 will be between two Democrats, Attorney General Kamala Harris and Congresswoman Loretta Sanchez. These two Democrats agree with each other on issues. Having such an important election with no real choice will likely persuade many Californians that the system should be reformed.

On October 19, an initiative petition was submitted to the Maine Secretary of State. It would switch all federal and state elections, except President, to instant runoff voting. The initiative needs 61,126 signatures. Proponents submitted slightly more than 70,000. The validity is expected to be high because a large share of the signatures were collected at the polls in recent elections.

Assuming the measure qualifies, the legislature must decide whether to pass it, although the legislature can’t amend it. If the legislature doesn’t pass it, it will be on the ballot in November 2016. If it passes, Maine will be the first state to use IRV for statewide general elections. Over 100 years ago, it was used in a few southern states for statewide primaries.

No major party nominee for Governor of Maine has received a majority of the vote since 1982.

On October 19, Canada held a House of Commons election. The Liberal Party won a majority of the seats.

Before the election, the Liberal Party election manifesto said, "We’re committed to ensuring that 2015 will be the last federal election conducted under the first-past-the-post voting system. As part of a national engagement process, we will ensure that electoral reform measures – such as ranked ballots, proportional representation, mandatory voting, and online voting – are fully and fairly studied, and considered. This will be carried out by a special all-party parliamentary committee, which will bring recommendations to Parliament on the way forward, to allow for action before the succeeding federal election. Within 18 months of forming government, we will bring forward legislation to enact electoral reform."

The same five parties are represented in the new Parliament as before. The number of seats won is: Liberal 184, Conservative 99, New Democratic 44, Bloc Quebecois 10, Green 1. The percentage of the national vote each of these parties received is: Liberal 39.5%; Conservative 31.9%; New Democratic 19.7%; Bloc Qeubecois 4.7%; Green 3.4%. The largest party that didn’t win any seats is the Libertarian Party, which got .2%.

On October 3, Hillary Clinton appeared on NBC’s Saturday Night Live Comedy show for a little more than three minutes. The Equal Time rule, passed in 1934, still exists, although it has been amended through the years not to apply to news interviews.

However, everyone seems to agree that Saturday Night Live is not the kind of show exempted, so Democratic presidential candidate Larry Lessig has asked NBC for equal time. The Equal Time rule would not require that Lessig appear on Saturday Night Live, just that he be given an equal amount of time on the network. NBC responded by asking Lessig to demonstrate that he is a bona fide candidate. Lessig then showed that he has qualified for primary season matching funds.

Originally, the rule only applied to radio. Because of the rule, the radio networks broadcast the presidential conventions of the Socialist, Communist, Socialist Labor, and Prohibition Parties in 1936 and 1940.

During October, the U.S. Supreme Court refused to hear both cases involving primaries. On October 5 it refused to hear Balsam v Guadagno, a New Jersey case that challenged the closed primary. On October 13, it refused to hear Rubin v Padilla, the minor party challenge to California’s top-two system.

On October 8, the ACLU filed a lawsuit against the California law that says some candidates may have their party label on the ballot, when they run for Congress or partisan state office. But other candidates can’t. The case is Soltysik v Padilla, c.d., 2:15cv-7916. The case was assigned to U.S. District Court Judge Andre Birotte, an Obama appointee. The plaintiffs are two registered Socialists who want to have "party preference: Socialist" on the ballot when they run for legislature in 2016. Existing law says they can only have "party preference: none." The Socialist Party is not a qualified party in California.

A similar case in state court filed in 2011, Field v Bowen, did not win in the lower courts, and the State Supreme Court would not hear it. However, the law has been changed since then. In 2012 the legislature passed AB 1413, which deleted the ability of candidates to have no label. Under the new law, candidates who are members of unqualified parties must have "party preference: none" on the ballot, even though in the case of these plaintiffs, that is not true. They prefer the Socialist Party.

The Independent Voters Project says it will not intervene in court to defend the existing discriminatory law. This represents a gain, because IVP did intervene in court in Field v Bowen. It is not known if the other intervenor, Californians for an Open Primary, will intervene.

In 2013 the Ninth Circuit upheld the practice of barring independent candidates from having the word "independent" on the ballot, because there was no evidence that an independent is harmed. But the Ninth Circuit said, "We express no view as to whether the removal of the blank space option compels speech by requiring candidates who prefer a non-qualified party to falsely state they have no party preference."

Even though New Mexico has no law setting a start date for independent candidate petitions, the Secretary of State recently said she won’t permit independent candidate petitions to circulate before March 1, 2016. The law does say that the Secretary of State must put a sample petition form on her web site by March 1, and that law is her justification. However, the election code has a sample of the independent candidate petition, so the posting of a sample petition on the web site is not even needed.

New Mexico has the nation’s second highest petition requirement for independent presidential candidates. It is 3% of the last gubernatorial vote. Only Oklahoma, at 3% of the last presidential vote, is higher. And Oklahoma does not set a start date.

The California Secretary of State has recently refused to recognize the Independent Party as a political body. In California, a group becomes a qualified party by persuading .33% of the state’s registered voters to join the party on voter registration forms. When a group wants to become a qualified party, it notifies the Secretary of State that it desires to qualify, and notifies the Secretary of State of its officers. At that point it is a "political body", until it qualifies.

Earlier this year, the Independent Party was formed, partly to assist independent candidates. Under current law, an independent candidate for Congress and partisan state office must have "party preference: none" on the ballot. Most independents would rather have "independent" on the ballot next to their names.

If the Independent Party were ballot-qualified, then independent candidates could register into it. Then the ballot would say, "Party preference: Independent." The Independent Party has no platform.

Other states have also had ballot-qualified parties called "Independent Party" or "Independent Voters Party", that were born simply to help independent candidates to get on the ballot. At this time, there are ballot-qualified parties named "Independent Party" in Connecticut, Delaware, Florida, Hawaii, and Oregon. In the past they were qualified in Maryland, North Carolina, South Carolina, and Utah.

The Secretary of State does not say no party can ever be called "Independent Party." Instead he says the name "Independent Party" is too similar to the name of the American Independent Party, which has been a qualified party in California since 1968. However, the Secretary of State let Americans Elect qualify in 2011, and over the past 37 years there have been 19 political bodies with "American" as part of their name. Just a few months ago the Secretary of State let the American Freedom Party register as a political body. At one time or another, 43 states have had two parties simultaneously on the ballot that shared a common word in their names, such as "Socialist" and "Socialist Labor."

The Independent Party hopes to bring a lawsuit soon to force the state to let it be a political body. In 1896 the California Supreme Court ruled that the National Democratic Party could be on the ballot even though the Democratic Party was on. Other courts have made similar rulings. There is no reported court precedent that upholds keeping two parties off the ballot just because one word is used in both party names.

Los Angeles County has tallied the Independent Party registration to be 24,005. Assuming other counties are similar, it is likely the Independent Party has more than the required 60,000 members in the state.

Arizona: the Libertarian Party and the Green Party will file a cert petition next week, in the case over the voter registration form that gives checkboxes only to the two largest parties, even though other parties are on the ballot and have primaries.

Arkansas: on October 14, the Libertarian Party filed a lawsuit against the new law that says parties that nominate by convention must choose all their nominees (except the presidential nominee) more than a year before the election. No state before has ever had such a law. Libertarian Party of Arkansas v Martin, e.d., 4:15cv-635.

Ohio: on October 14, a U.S. District Court said that only a state court can decide whether the ballot access law passed in 2013 violates the State Constitution. The Libertarian Party argues that the law, which says new parties submit a petition by July of an election year, cannot be valid. That is because the primary in presidential years is in March, so obviously a new party is too late for the primary. The State Constitution says, "All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law." The State Supreme Court ruled in the past that the clause "or by petition" only refers to independent candidates. But the U.S. District Court says this issue does not belong in federal court. The case is Libertarian Party of Ohio v Husted. The party will appeal. Another part of the case, on whether the state discriminated against the party in 2014 when it kept its gubernatorial candidate off the ballot, is still pending in U.S. District Court.

Utah: on October 23, a U.S. District Court ruled that the Republican and Constitution Parties can’t use trademark law to overturn the law on how parties nominate. But the main part of the case, on Freedom of Association, is still undecided. Utah Republican Party v Herbert, 2:14cv-876.

State	Alternative #1	Alternative #2	Election Code
Alabama	Fee of $2,500 plus 500 signatures	– –	17-13-102 & party rules
Arizona	500 signatures of party members	Already on ballot in two other states	16-242
Arkansas	Fee of $15,000	– –	7-7-301(a) & party rules
California	Discussed in the news media	Petition of 1% of registered party members	6340, 6343
Connecticut	Discussed in the news media	Petition of 1% of registered party members	9-465, 9-469
Delaware	Eligible for primary matching funds	500 signatures of party members	Title 15, 3184
D.C.	1,000 signatures of party members	– –	1-1001.05(b)(1)
Florida	Attend fundraiser Nov. 13-14	Pay $25,000	103.101 & party rules
Georgia	State party decides	– –	21-2-193
Idaho	Fee of $1,000	– –	34-732
Illinois	3,000 signatures	– –	10 ILCS 5/7-11
Indiana	4,500 signatures (500 in each C.D.)	– –	3-8-3-2
Kentucky	Fee of $1,000	5,000 signatures of party members	118.591
Louisiana	Fee of $750	6,000 signatures of party members	Tit. 18, 1280.22
Maryland	Discussed in the news media	3,200 signatures of party members	Art. 33, 8-502(c)(2)
Mass.	Discussed in the news media	2,500 signatures of party members or indps	Ch. 53, sec. 70E
Michigan	Discussed in the news media	– –	Chap. 168.614a
Mississippi	Discussed in the news media	500 signatures	23-15-1089
Missouri	Fee of $1,000	If indigent, 5,000 signatures	Tit. 9, 115.761
Montana	Eligible for primary matching funds	500 signatures	13-10-404
Nebraska	Discussed in the news media	300 signatures of party members	32-614
New Hamp.	Fee of $1,000	If indigent, 100 signatures	Tit. 53, 655:48
New Jersey	1,000 signatures of party members	– –	19:25-3
New Mex.	Discussed in the news media	15,676 signatures	1-15A-5, 1-15A-6
New York	Discussed in the news media	Eligible for primary season matching funds	Ch. 17, 2-122b
No. Car.	Discussed in the news media	– –	163-213
Ohio	Raise $5,000 from each of 20 states	1,000 signatures	3513.12,3513.121
Oklahoma	Fee of $2,500	6,000 signatures	Tit. 26, 20-102
Oregon	Discussed in the news media	5,000 signatures of party members	Tit. 23, 249.078
Pennsyl.	2,000 signatures of party members	– –	Tit. 25, 249.078
Puerto Rico	Recognized by party & submit delegates	– –	Art. 8.021
Rhode Is.	1,000 signatures	– –	17-12.1-4
So. Caro.	Fee of $40,000	– –	7-11-20 & party rules
So. Dakota	State party decides	1,955 signatures of party members	12-6-7
Tennessee	Discussed in the news media	2,500 signatures	2-5-205(a)(1)
Texas	Fee of $5,000	4,500 signatures	Party rules
Vermont	1,000 signatures plus $2,000	If indigent, fee is $300	Tit. 17, sec. 2702
Virginia	5,000 signatures	– –	24.2-545
Wash.	Discussed in the news media	1,000 signatures	29.19.030
West Va.	Fee of $2,500	– –	3-5-8
Wisconsin	Discussed in the news media	8,000 signatures	Tit. 2, sec. 8.12(1)(c)

States that don’t have presidential primaries in 2016 are Alaska, Colorado, Hawaii, Iowa, Kansas, Maine, Minnesota, Nevada, North Dakota, Utah, and Wyoming. Although the Kentucky Republican Party says it will hold a caucus, the Kentucky Republican Party still hasn’t told the state to cancel its presidential primary; that decision won’t be made until December.

The rules for Democratic presidential primary are similar to the Republican rules listed above, except that the filing fees are lower in Arkansas, South Carolina, and Texas. In Florida, Democrats get on the ballot if the party recognizes them; there is no fee.

Republican presidential candidates in 2016 must pay $74,500 in fees if they use the alternatives in column one. Note that over half this total must be paid for the South Carolina primary. Notwithstanding the very expensive South Carolina fee, 15 Republican candidates paid it. The filing deadline has not yet closed in any other states, nor has the filing deadline in South Carolina for Democrats closed yet.

STATE	REQUIREMENTS		SIGNATURES COLLECTED			THREE TYPES OF DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	Full Party	Pres Party	Pres. Indp.
Ala.	35,413	5,000	0	0	0	Mar. 1	Mar. 1	Aug. 18
Alaska	(est) (reg) 8,400	#3,005	already on	*350	already on	May 2	Aug. 10	Aug. 10
Ariz.	20,119	(est) #36,000	already on	already on	0	March 3	Sep. 9	Sep. 9
Ark.	10,000	#1,000	already on	already on	already on	Sep 2 ‘15	Aug. 1	Aug. 1
Calif.	(es) (reg) 61,000	178,039	already on	already on	355	Jan. 4	July 11	Aug. 12
Colo.	(reg) 1,000	#pay $1,000	already on	already on	already on	Jan. 8	Aug. 10	Aug. 10
Conn.	no procedure	#7,500	can’t start	can’t start	can’t start	– –	Aug. 10	Aug. 10
Del.	(est.) (reg) 650	(est.) 6,500	already on	already on	366	Aug. 20	Aug. 20	July 15
D.C.	no procedure	(est.) #4,600	can’t start	already on	can’t start	– –	Aug. 10	Aug. 10
Florida	be organized	119,316	already on	already on	already on	April 15	Sep. 1	July 15
Georgia	51,912	#49,336	already on	can’t start	can’t start	July 12	July 12	July 12
Hawaii	707	#4,347	already on	already on	*250	Feb. 24	Aug. 10	Aug. 10
Idaho	13,047	1,000	already on	can’t start	already on	Aug. 30	Aug. 30	Aug. 24
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	– –	June 27	June 27
Indiana	no procedure	#26,700	already on	0	0	– –	June 30	June 30
Iowa	no procedure	#1,500	0	1,200	0	– –	Aug. 19	Aug. 19
Kansas	16,960	5,000	already on	0	0	June 1	June 1	Aug. 1
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	– –	Sep. 9	Sep. 9
La.	(reg) 1,000	#pay $500	already on	already on	185	May 21	Aug. 19	Aug. 19
Maine	(reg) 5,000	#4,000	*finished	already on	0	Dec 1 2015	Aug. 1	Aug. 1
Md.	10,000	(est.) 38,000	already on	already on	0	Aug. 1	Aug. 1	Aug. 1
Mass.	(est) (reg) 45,000	#10,000	10,920	already on	96	Feb. 2	Aug. 2	Aug. 2
Mich.	31,519	30,000	already on	already on	already on	July 21	July 21	July 21
Minn.	98,770	#2,000	0	0	0	May 2	Aug. 23	Aug. 23
Miss.	be organized	1,000	already on	already on	already on	Feb. 1	Sep. 9	Sep. 9
Mo.	10,000	10,000	already on	*700	already on	July 25	July 25	July 25
Mont.	5,000	#5,000	already on	0	0	Mar. 17	Aug. 17	Aug. 17
Nebr.	5,395	2,500	already on	*600	0	Aug. 1	Aug. 1	Aug. 1
Nev.	5,431	5,431	already on	500	already on	June 3	June 3	July 8
N. Hamp.	14,556	#3,000	can’t start	can’t start	can’t start	Aug. 10	Aug. 10	Aug. 10
N.J.	no procedure	#800	0	0	0	– –	Aug. 1	Aug. 1
N. M.	2,565	15,388	already on	already on	already on	June 30	June 30	June 30
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	– –	Aug. 23	Aug. 23
No. Car.	89,366	89,366	already on	5,442	0	May 17	May 17	June 9
No. Dak.	7,000	#4,000	already on	0	4,000	Apr. 16	Sep. 5	Sep. 5
Ohio	30,560	5,000	in court	already on	0	July 6	July 6	Aug. 10
Okla.	24,745	40,047	*14,500	*1,500	0	March 1	July 15	July 15
Oregon	22,046	17,893	already on	already on	already on	Aug. 30	Aug. 30	Aug. 30
Penn.	no procedure	(es) #25,000	can’t start	can’t start	can’t start	– –	Aug. 1	Aug. 1
R.I.	16,203	#1,000	0	0	0	Aug. 1	Sep. 9	Sep. 9
So. Car.	10,000	10,000	already on	already on	already on	May 8	May 8	July 15
So. Dak.	6,936	2,775	*2,000	0	*4,800	Mar. 29	Mar. 29	April 26
Tenn.	33,816	275	0	in court	in court	Aug. 10	Aug. 10	Aug. 18
Texas	47,086	79,939	already on	already on	can’t start	May 16	May 16	May 9
Utah	2,000	#1,000	already on	200	already on	Feb. 15	Aug. 15	Aug. 15
Vermont	be organized	#1,000	already on	0	0	Dec 31 ‘15	Aug. 1	Aug. 1
Virginia	no procedure	#5,000	can’t start	can’t start	can’t start	– –	Aug. 26	Aug. 26
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	– –	July 23	July 23
West Va.	no procedure	#6,705	already on	already on	*9,650	– –	Aug. 1	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	April 1	Aug. 2	Aug. 2
Wyo.	3,302	3,302	already on	can’t start	already on	June 1	June 1	Aug. 30
TOTAL STATES ON			31	22	15	“	“	“

#partisan label is permitted on the ballot (other than "independent").
"CONSTI" = Constitution Party.
The number of signatures for new parties is in court in Tennessee; for independents, in New Mexico.
* = change since Oct. 1, 2015 issue.

On October 7, Gallup Polls said it will no longer do polls for the major party presidential primaries. It may not do polls for the general election either. Gallup feels modern life has made accurate presidential polls very difficult to do. This determination casts doubt on the habit of debate sponsors to depend on polls, when they decide which candidates to invite.

The Commission on Presidential Debates said on September 23, 2015, that in the "near future" it will announce its rules on who can participate in its 2016 debates. However, it has not done so yet. The CPD is currently being sued by Gary Johnson and Jill Stein. The CPD response to the lawsuit will be delayed, because the CPD asked the Court for permission to file its response in December.

Free & Equal has set an inclusive presidential debate for August 30, 2016, at the Belasco Theater in Los Angeles. Free & Equal invites all presidential candidates who are on the ballot in enough states to win. However, the major party nominees in the past have always signed a contract with the CPD, promising not to participate in any debates other than CPD debates. The Johnson-Stein lawsuit is based on antitrust law. On October 24, the Orange County Register (a large California newspaper) carried an op-ed by Professor Tom Campbell, an expert on antitrust law, saying the lawsuit has merit.

Emma Wong Mar died on September 16 in Oakland, California, at the age of 89. She had been the Peace & Freedom Party’s vice-presidential nominee in 1984. She was the first Asian-American to appear on any general election ballot for either President or Vice-President. The presidential candiate she ran with was Sonia Johnson.

On October 20, former Jim Webb left the Democratic presidential race and said he may be an independent candidate instead.

Louisiana holds its state elections in late October in the odd years before presidential election years. All state legislators are elected to four-year terms. On October 24, a Saturday, the election was held. Both independent state representatives were re-elected. Jerome "Dee" Richard, 55^th district, was re-elected unanimously. Terry Brown, 22^nd district, defeated a Republican by 6,627 to 6,026.

Only two minor party candidates ran for state office. Green Party member Adrian Juttner, for Agriculture Commissioner, got 36,180 votes (3.49%) against a Republican and two Democrats. Libertarian Jason France, for Board of Education, 6^th district, got 15,424 votes (11.3%) against three Republicans.

On October 17, the Socialist Party national convention nominated Emidio "Mimi" Soltysik for President, and Angela Walker for Vice-President. The convention was in Milwaukee.

The Prohibition Party petition to place Jim Hedges, its 2016 presidential nominee on the Arkansas ballot, has been verified by the state. The petition required 1,000 signatures. This is the most difficult petition drive the party has completed since 1988.