George Skelton, the veteran Sacramento news correspondent covering California state government, here writes, “Give California’s top-two primary some more time, and if it doesn’t get better, junk it.” This is significant, because since 2004, Skelton has been a strong supporter of the system.
The last part of his column mentions alternatives, but he seems not to know that his idea to declare a winner in June, for a candidate who gets at least 50%, is not legally permitted, at least for Congressional elections. Federal law, since 1872, has told the states to hold congressional elections in all districts in November of even-numbered years. That is why Louisiana stopped using top-two. The U.S.Supreme Court struck down Louisiana’s law in 1997 in Foster v Love, because Louisiana was letting candidates win in September. Now Louisiana doesn’t have primaries (except presidential primaries). It just has a general election in November and if no one gets 50%, a runoff in December. For state office, the same principle applies, except that the election is in October of the odd years just before presidential election years.
The LA runoff in December also subverts the ONE day election for USA Reps and Senators.
Too many LAWLESS State HACKS to count — who should be in a Fed jail for decades.
Public Citizen sued Georgia over that point (Georgia has a run-off general election in January if no one gets 50%, but the federal court upheld the run-off general election being in January after the election year. Public Citizen v Miller, 992 F 2d 1548 (11th cir 1993).
Foster v Love in 1997 — after 1993.
2 USC Sec. 1.
At the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen, a United States Senator from said State shall be elected by the people thereof for the term commencing on the 3d day of January next thereafter.
(June 4, 1914, ch. 103, § 1, 38 Stat. 384; June 5, 1934, ch. 390, § 3, 48 Stat. 879.)
2 USC Sec. 7.
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
(R.S. § 25; Mar. 3, 1875, ch. 130, § 6, 18 Stat. 400; June 5, 1934, ch. 390, § 2, 48 Stat. 879.)
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THE DAY — THE ELECTION
Same sort of THE DAY language for general election dates in ALL/most State constitutions for state/local offices — going back to 1776 — to STOP rigging of general election dates by gerrymander HACKS — super basic stuff.
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Also the Title 52 morons failed to put Title 2 election stuff into Title 52 — adding to the confusion.
@DR,
See 2 USC 8(a)
2 U.S. Code § 8 – Vacancies
(a) In general
Except as provided in subsection (b), the time for holding elections in any State, District, or Territory for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several States and Territories respectively.
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How often —
a failure to elect at the time prescribed by law ???
An exception prevails over the rule (MAIN law) ???
What just happened in the Husted op ???
Top Two Primary has been given more time than it ever deserved. Junk it as soon as possible.
How much more time are we going to give the two party system?
That 1872 law was not universally applied until 1960. It is not chiseled in stone. California could easily permit majority election for all offices, and provide an exception for Congress.
Since the California legislature takes office in December, the November general election should be retained. California should move the primary to September or October, and switch state and local elections to odd years.
The Love party wanted to kill off the Open Primary – the controversy over the date was just the basis of attack. When the legislature convened after the SCOTUS decision, Governor Foster and the House wanted to change the schedule. The Senate wanted to revert to the old system of segregated partisan nominations. SCOTUS had remanded the case to the federal district court, which then had to reconcile the federal and state statutes. The court decided to retain the state’s method of election, with the federal calendar. The lawyers for Love appealed this decision but it was upheld by the 5th Circuit in Love v Foster.
Those opposed to the Open Primary continued to agitate for a return to the old days, suggesting that representatives elected in December would have less seniority, and be forced to clean out the spittoons in the House chamber, or get lesser offices or committee assignments. The legislature tried to modify the Open Primary. If there were three or more candidates they would run in the Open Primary, with possible election by majority. If there were two candidates they would appear on the November ballot.
This was challenged in Daughter of Love v Blanco, and a federal district court blocked that system. The agitators persisted, and Louisiana regressed to the old system. That turned out to be totally unsatisfactory, and the legislature restored the Open Primary with the November federal election date and a December runoff if necessary.
During the debate, there were a couple of amusing anecdotes. The partisan primary required an election clerk to set a switch on voting machines so the correct primary candidates would appear. A Republican senator’s wife went to the polling place, and was confronted with unfamiliar names. She asked the clerk, and was told those were the Republican candidates. As it turns out, she was a registered Democrat, and though she was a lady, she told the election clerk in most unladylike language where he might spend eternity if she were a Republican. The clerk apologized profusely, and prepared another voting machine for her use. When asked about the original machine, she was told they’d let the next Republican use it.
A representative suggested how odd it would be to go up to a voter, and explain why he should vote for him. But if the voter was from the other party, he would have to thank him for his time, and invite him to vote for him next month.
Louisiana has used the Open Primary since 1977, so almost all voters and candidates never participated in the old system. Candidates are comfortable seeking the support of all voters, and voters are willing to consider the virtues or faults of the individual candidates. Older voters (over 59) likely remember voting in the Democratic primary and second primary (runoff) and not seeing it as significantly different.
@DR,
See Section 3 and 4 of the 1872 Reapportionment Act which established the November election date.
https://www.loc.gov/law/help/statutes-at-large/42nd-congress/session-2/c42s2ch11.pdf
At one time, many states had what were referred to as “trials” in which they would try to elect a representative. If no candidate received a majority, they would hold an additional trial election a couple of months later. Sometimes, a half dozen trials would be needed. On rare occasions, a state would go unrepresented during an entire session of congress. Without government-printed ballots, it was impossible to have a runoff. This is one reason we have plurality elections – it was expedient for politicians to get elections over with.
This use of “trial” is still used in sports, such as trial heats in track meets or drag racing events, and the try down in football. “The snap, the try is up, it’s good …” You may have heard this a 1000 times. When the November election date was set in 1872, this was the normative use of a different date. If the voters “tried” to elect someone and failed, there could be another election date. 2 USC 8 was extensively written after 9/11 when they were concerned about mass vacancies such that the House could not operate because of a lack of a quorum, and the language was transformed to make it appear that casual vacancies are the main concern.
Note that this makes clear that Congress could set the time of election in cases of singular vacancies, such as John Conyer’s resignation.
JR —
What word(s) in the below are SO difficult to understand ???
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2 USC Sec. 7.
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
(R.S. § 25; Mar. 3, 1875, ch. 130, § 6, 18 Stat. 400; June 5, 1934, ch. 390, § 2, 48 Stat. 879.)
THE DAY — THE ELECTION
HOW MANY STATE CONSTITUTIONS HAVE SIMILAR LANGUAGE FOR STATE GENERAL ELECTION DATES ???
SEE ALSO TERM STARTING TIMES AND TERMS
— TO STOP THE GERRYMANDER HACKS FROM THEIR EVIL / CORRUPT TIME RELATED ELECTION MACHINATIONS.
The CA Const appears to allow the gerrymander hacks *some* rigging of general election dates.
4-2-b below. Dangerous super-stupid.
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Art II, Sec. 20. Terms of elective offices provided for by this Constitution, other than Members of the Legislature, commence on the Monday after January 1 following election. The election shall be held in the last even-numbered year before the term expires.
(Sec. 20 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)
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Art. IV, Sec. 2 (a) (1) The Senate has a membership of 40 Senators elected for 4-year terms, 20 to begin every 2 years.
(2) The Assembly has a membership of 80 members elected for 2-year terms.
(3) The terms of a Senator or a Member of the Assembly shall commence on the first Monday in December next following her or his election.
(4) During her or his lifetime a person may serve no more than 12 years in the Senate, the Assembly, or both, in any combination of terms. This subdivision shall apply only to those Members of the Senate or the Assembly who are first elected to the Legislature after the effective date of this subdivision and who have not previously served in the Senate or Assembly. Members of the Senate or Assembly who were elected before the effective date of this subdivision may serve only the number of terms allowed at the time of the last election before the effective date of this subdivision.
(b) Election of members of the Assembly shall be on the first Tuesday after the first Monday in November of even-numbered years >>>> unless otherwise prescribed by the Legislature. <<<< Senators shall be elected at the same time and places as members of the Assembly.
(c) A person is ineligible to be a member of the Legislature unless the person is an elector and has been a resident of the legislative district for one year, and a citizen of the United States and a resident of California for 3 years, immediately preceding the election, and service of the full term of office to which the person is seeking to be elected would not exceed the maximum years of service permitted by subdivision (a) of this section.
(d) When a vacancy occurs in the Legislature the Governor immediately shall call an election to fill the vacancy.
(Sec. 2 amended June 5, 2012, by Prop. 28. Initiative measure.)
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Art. IV, Sec. 3. (a) The Legislature shall convene in regular session at noon on the first Monday in December of each even-numbered year and each house shall immediately organize. Each session of the Legislature shall adjourn sine die by operation of the Constitution at midnight on November 30 of the following even-numbered year.
(b) On extraordinary occasions the Governor by proclamation may cause the Legislature to assemble in special session. When so assembled it has power to legislate only on subjects specified in the proclamation but may provide for expenses and other matters incidental to the session.
(Sec. 3 amended June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)
@DR, If no one is elected on that date, there is a vacancy.
If you read the debate when the uniform date for appointing presidential electors was set (in 1845) it will all be clear to you.
The federal government should provide an incentive to use Top 2, and clean up the language.
(1) The first Saturday in October would be established as Open Primary Election Day.
(2) Congressional elections open to all voters and all candidates could be held on that date. Other elections could also be held on that date if they were open to all voters and candidates.
(3) Election by majority would be possible. If no majority, a runoff would be held on General Election Day, which would be the first Saturday after the first Monday in November.
(4) Election on General Election day would require a majority. A runoff would be held on the first Saturday after the first Friday in December.
(5) No preliminary election event could occur prior to the first Saturday after the second Thursday in July.
(6) Compliance with UOCAVA would be provisional ranked ballot (as used in Louisiana and South Carolina).
Texas does not have any election dates in its constitution (just as there are no such dates in the US Constitution). I’ll leave it to you to research the 49 other states.
Sorry – NO research will be done.
Fixed date in USA Const for ALL general elections – Fed, State, local —
one more part of the Save Democracy Amdt.
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NO primaries.
PR and AppV