Two members of the California Assembly, Democrat Adam Gray and Republican Kristen Olsen, have introduced ACA 13, a proposed constitutional amendment. It alters presidential primaries and presidential general elections. Here is the text.
All presidential primary candidates would appear on a single primary ballot, and all voters would use that ballot. Also, independent presidential candidates would appear on that primary ballot. The proposed constitutional amendment says the independent who receives the most votes in the presidential primary would be placed on the November ballot. Election officials would be required to produce a vote tally for the voters from each party, so that the qualified political parties would know how their own members voted in this presidential primary.
The part of the amendment relating to independent presidential candidates is not constitutional. It would require independent presidential candidates to have announced their candidacy by early March. But the U.S. Supreme Court decision Anderson v Celebrezze says that states must allow presidential candidates running outside the two major parties to announce as late as the middle of the year.
Another problem with the amendment is that California lets new parties qualify as late as July of the election year, yet the California primary for president and all other office is in early June.
If this proposal had been in effect in 2016, the presidential primary ballot used by every voter would have contained 39 presidential candidates seeking the nomination of a qualified California party, plus an undetermined number of “independent” candidates, which could create a very long primary ballot.
The current version of Article II, Section V does not provide for independent candidates for president. The fact that one independent candidate might qualify via the primary ballot does not preclude qualification of additional candidates by petition, or placed as the nominee by late-qualifying parties.
One thing that the amendment does is to continue the process of untangling the language of Article II, Section 5.
Before 1970, Section 5 was quite lengthy and quite prescriptive, including much text that would be better placed in statute. In June 1970, voters approved the “open primary” language for presidential preference primaries, which was added as a separate paragraph.
In November 1970, voters approved an amendment that greatly simplified Section 5, and also provided for the 18-Year Old vote. Since the “open” presidential primary had just been added, it was tacked on to the side.
In 2004, as part of the dishonest effort by the legislature to wrong foot the first Top 2 reform, the language was amended to provide for partisan primaries, along with the guarantee that the winning candidate be placed on the general election ballot as the party nominee.
The 2010 Proposition 14 eliminated partisan elections for all but presidential and party committee elections. These are the only two partisan primaries that do not produce a nominee. Yet the text of the constitution suggests that they do.
The new language would isolate the text providing party elections in a paragraph separate from that for presidential elections, and the language for presidential primaries is separate from that for voter-nominated primaries.
The current statutes for voter-nominated primaries are unconstitutional since they restrict expression of party preference to certain state-approved orthodoxy. This is a content restriction – a candidate is forbidden to express that he prefers the Constitution, Coffee, or Socialist party even though the basis for that preference is identical to that of a candidate who prefers one of the six State-sanctioned parties.
But the new language would permit quite small parties to be recognized for voter-nominated parties. It is nonsensical to claim that any of the parties “participated” in this week’s primaries for Congress or the legislature.
At the same time the legislature could provide that all presidential nominations be by petition, and then make a presumption that all registrants with a party support the nominee of the party. This would ensure that parties large enough to participate in presidential primaries could place their nominee on the general election ballot.
But other partisan presidential candidates could qualify by petition.
Beginning of the END of the EVIL rotted to the core super time bomb Electoral College ???
NO primaries.
NONPARTISAN App.V. for all elected executive offices and all judges.
I hope this amendment dies. Top Two needs to be repealed, not expanded.
But maybe we can work with the sponsors to amend it and restore a blanket primary for president and all office. A blanket primary is constitutional as applied to any party that is OK with it. Alaska has a blanket primary.
Jim Riley is wrong in saying that “In 2004 … the language was amended to provide for partisan primaries, along with the guarantee that the winning candidate be placed on the general election ballot as the party nominee.”
The constitutional amendment that the Legislature placed on the ballot added a guarantee that the winning candidate in every party’s primary be placed on the general election ballot as the party nominee, but the language providing for partisan primaries was already there. Before the 2004 amendment, Section 5 read in its entirety:
“The Legislature shall provide for primary elections for partisan offices, including an open
presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.”
There’s no reason to modify this proposal in the direction of a blanket primary, because it is already better than the old blanket primary. But there might (heavy emphasis on “might” because this will need a lot of thought) be good reasons for extending this to other offices as a replacement for top two.
@Dave Kadlecek,
Thanks for the clarification and helping me remember the sequence of events.
The language prior to 2014 included a simple statement: “The Legislature shall provide for primary elections for partisan offices”, followed by a detailed description of the presidential primary. The reason for that, is that prior to 1972 there was a quite lengthy Article II that provided a lot of detail about suffrage and elections.
The presidential primary language was added as a separate paragraph in June 1972 as a result of Proposition 4 (I wrote 1970 above) as Article II, Section 8.
In November 1972, Proposition 7 completely replaced Article II, replacing 150 lines with 27 lines. 24 lines in Article II, Section 2.5 were replaced with 10 words: “The Legislature shall provide for primary elections for partisan offices”, to which was added the presidential primary language that had been enacted the previous June.
In 2004, as part of an attempt to wrong-foot the first Top 2 initiative, the legislature proposed a totally unnecessary constitutional amendment. The reason for this tactic was that it conflicted with the Top 2 measure, and that if both were approved by the voters, the one that received more Yes votes would prevail.
Since the language about a presidential primary was already in Section 5, Proposition 60, literally converted the presidential primary to a direct primary. Of course if read literally, it would have also meant that a candidate who received the most votes, even if by write-in, would appear on the general election ballot.
Proposition 62, put the presidential primary in a separate subsection (5(g)).
Proposition 14 in 2010 perpetuated the mistake of Proposition 60, and moreover since the office of President is the only remaining partisan nomination, can only be read as requiring a direct primary for President.
The new proposed amendment disentangles the presidential and party elections from the voter-choice and nonpartisan elections.
GOP knows they need 2/3rd vote. They should go along and require repeal of Top 2. Libertarians and Greens will have biggest years ever and we have highest unaffiliated EVER. Top 2 must be abolished. Have regular primary and then have General election as usual. Then have run off if no one has 50% like Louisiana does