At the June 1972 election, California voters passed Proposition 4. It amended the California Constitution, Article II, section 5, concerning the presidential primary. It has never been altered and is in the Constitution today. It requires the legislature to “provide for partisan elections for presidential candidates…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.”
The purpose of this change was to end the requirement that presidential primary candidates must petition to get on the California presidential primary. Before it was adopted, it was very difficult for candidates to get on the California presidential primary ballot; they needed a petition of 1% of that party’s registered voters. After it was adopted, no petitions were needed. The Secretary of State was directed to choose which candidates should be on the ballot by seeing which candidates are mentioned in news media. Many other states copied this idea, and it is in place in almost half the states with presidential primaries.
There is no doubt that Proposition 4 was intended to apply to which candidates are on the ballot, and does not relate to who can vote in the presidential primary. This is clear from the ballot arguments in the Voters Pamphlet, and from the news stories about the campaign for and against the measure. But the California Voters Project has for several years insisted that California is violating its own constitution by holding a semi-closed presidential primary for some parties, and a closed presidential primary for other parties. See this article posted by the Project on May 12.
Representatives of the California Voters Project testified against AB 837 on April 26. AB 837 requires that election officials take steps to inform independent voters of their right to choose the presidential primary ballot of parties that have agreed to let independent voters have such a ballot. The Independent Voters Project witnesses said they oppose AB 837 because the entire California presidential primary is in violation of the California Constitution. They did not acknowledge the legal analysis of the bill, which rebuts their point. And their blog post fails to quote the entire portion of the California Constitution.
The “open” presidential primary language was a stand alone provision that clearly only applied to the presidential primary. At that time, the California Constitution had reams of provisions regarding the primary – the sort of stuff that belong in statute. In November of 1972, voters approved replacing several pages of the constitution with a single paragraph. Because the “open” presidential primary language had just been added, it was incorporated into that single paragraph.
Later, the constitution was amended such that the person who got the most votes in a partisan primary would be the nominee of the party in the general election. It is clear that president is a partisan office. After the Top 2 Open Primary reform, president is the only partisan office.
A straightforward reading of the constitution is that the presidential primary is a direct primary. California should implement this in statute. A reasonable addition would permit California political parties to name affiliates in other States whose primaries should be counted in determining the nominees of the California parties.
Conditions might include:
(1) Presidential primary on or after date of California primary;
(2) Same candidates as California;
(3) Public affiliation of voters with party;
(4) Conventions may be used, if persons who attend first level convention or caucus vote for President by secret ballot.
(5) Top vote-getter will be nominee in state.