Former Oregon Secretary of State Phil Keisling has been an ardent proponent of the “top two” primary for several years now. Because the 2007 session of the Oregon legislature failed to pass a “top two” law, Keisling has resolved to again attempt to place an initiative on the ballot, asking the voters if they wish to choose the “top two” system.
Oregon initiatives cannot circulate until the title and short description of the initiative are approved. The original title was rejected by the Oregon Supreme Court on November 8, 2007. A new title was submitted on November 16. Today (close of business) is the deadline to see if anyone objects to the new title. In the meantime, of course, we are getting closer in time to the unknown day on which the U.S. Supreme Court will issue its ruling in the Washington state “top two” case.
Would this be like the “top two regardless of party” system of Louisiana or the “top two from two different parties” that California tried a few years ago?
It would be like Louisiana. The California system that California tried in 1998 and 2000 was called a “blanket primary.”
Would the Oregon top two system be like what the current Washington Secretary of State is supporting for WA?
My other thought is; if Mr. Keisling is so concerned about reducing political party control of ballot choices, why isn’t he out there opposing the efforts over thelast several years by his successor, Bill Bradury, to restrict independent candidates access to Oregon’s ballots?
In Louisiana’s state and local elections, there is a runoff between the top two vote-getters only when no candidate gets 50%-plus in the first round.
In the Oregon and Washington state measures, on the other hand, there is ALWAYS a second round of voting. The Oregon proposal provides that, if the courts outlaw putting party labels on Washington’s “top two” ballots, there will be no party labels put on Oregon’s “top two” ballots.
The Oregon and Washington state measures will apply to congressional as well as state and local elections. Louisiana, which alone has used the “top two” for its congressional elections, is restoring party primaries for those elections, starting in 2008. And there is talk of restoring party primaries for Louisiana’s state elections as well.
Louisiana elections are considered general elections, with a runoff if no candidate receives a majority. Several years ago they were required to change the election date for Congress to November, because representatives and senators were generally being chosen prior to the date set by Congress.
California used a _blanket primary_ to select the candidates for each party. A voter could work his way down the ballot, and participate in the nomination of the Republican candidate for governor, effectively abstaining in the Democrat, Green, Libertarian, and Peace&Freedom primaries, and then switch to the Democrat primary for Congress, etc. This was overturned by the US Supreme Court which ruled that this violated the associational rights of the political parties, because it permitted members of other parties to participate in selection of their nominees.
Washington had used a blanket primary for 70 years, though with a slight variation. Minor parties nominated a single candiate by convention, whose name and party would appear on the primary ballot along with those of the 2 major parties. If the minor party candidate received enough votes (1%?), they would advance to the general election alongside the nominee of the two major parties. Washington also does not have party registration of voters. But eventually, the California ruling was applied to Washington.
Alaska, was the 3rd state to have approved a blanket primary. It continues to use a form of blanket primary that the parties may voluntarily participate in. Ordinarily, there is a Republican primary, and an open (blanket) primary in which nominees of the other parties are chosen, and in which non-Republicans may vote.
The Washington legislature approved a Top 2 primary, but this was vetoed by Governor Locke. The voters then approved a Top 2 primary by initiative. This has been never been used because of court challenges, and is currently being considered by the US Supreme Court (oral arguments were held in October).
In a Top 2 primary, candidates of all parties appear on the ballot, and voters may vote for one candidate for each office. The two leading candidates, regardless of party advance to the general election. The difference from a blanket primary is that a top 2 primary does not choose party nominees, but simply two candidates.
The main issue before the Supreme Court is whether the use of party labels implies endorsement, or is just information for voters. Washington state has argued that the political parties are free to endorse or support candidates, and just because the ballot says “Joan Doe, Democratic Party” it does not imply that Doe is a Democrat nor the Democrat candidate.
The initiative in Oregon appears to have addressed this issue by providing for two labels on the ballot, one indicating that a candidate is registered with a particular party, and another indicating whether a candidate is endorsed by a party.
The Washington “top two” or the Oregon proposal is no more a “primary” than the Louisiana system is. The Louisiana/”top two” is a nonpartisan general election with a runoff. (Louisianans popularly call it the “open primary.”)
Washington state began using its blanket primary in 1936. The Ninth Circuit struck down that law on 9/15/03, and the U. S. Supreme Court refused to hear the state’s appeal on 2/23/04. (Reed v. Washington State Democratic Party) The Libertarians were considered a major party in Washington for a time, but I don’t think they are now. Unlike California, Washington also put independents on its blanket primary ballot. Independents had to first be nominated by a “convention,” and they had to get at least 1% of the vote in order to advance to the general election.
Alaska now has two primary ballots: the Republican ballot and the Democratic/Alaskan Independence/Libertarian ballot. Independents may choose either ballot, while ANY voter may choose the Dem/AI/Libertarian ballot. (Since the Alaska Greens are not now ballot-qualified, they no longer list their candidates on the blanket ballot.)
The bill that the Washington legislature passed in 2004 enacted the “top two” but also included the open primary as a backup. Gov. Locke vetoed the “top two” portion, leaving the open primary in place. (Each voter picks one party’s ballot in the primary.) In November 2004, the “top two” initiative passed with some 60% of the vote. The “top two” has not been used, however, since it has been tied up in litigation.
In the Louisiana/”top two,” ALL candidates, including independents, are listed on the first-round ballot. Louisiana, which, like Oregon, registers voters by party, DOES put party labels on its “top two” ballots. I’ve said all along that putting party labels on a “top two” ballot is mainly for the voters’ information. But judging from several of the justices’ attitudes at the October 1 oral argument, I may be wrong about that.
In his majority opinion in the 2000 California blanket primary case, Justice Scalia said that the “top two” is constitutional because “… voters are not choosing a party’s nominee.”
All of this is discussed in greater detail here. See especially “Blanket Primary,” “Louisiana System,” and “Modified Louisiana System.”
A point that is overlooked in this discussion is that if the state wins in the Washington case in the Supreme Court, there will probably never be a small party or independent candidate on the general election ballot again. Finis.
The decision of the SCOTUS in the Washington case may be narrowly drawn. Washington doesn’t have party registration, but does recognize political parties. Unless there is a recognized Apple Pie party, a candidate may not have ‘Apple Pie’ next to his name. But if the role of a political party is to recruit, select, and support candidates, what exactly does use of their name imply? Some of the arguments by the Washington AG appear contrived – that because of the use of almost universal use of mail ballots, voters will have access to more information, and know that “John Chapman, Apple Pie” is not really for Apple Pie. The idea that poltical parties could endorse candidates was devised after the law challenged in court.
Oregon on the other hand has party registration, and its proposed Top 2 initiative provides that a candidate may indicate both his party registration and whether a political party has endorsed him.
California in its Top 2 initiative which was voted down in 2002, also provided that the party designation simply indicated registration by the voter, and also provided that the candidate could indicate their occupation. While there was not a provision for endorsement, parties could withhold permission to indicate registration status for all candidates.
Louisiana just elected two independents to its House of Representatives. One was elected without a runoff.
It is quite possible that a Top 2 or similar system would result in more independent candidates being elected. or more independent-minded party candidates being elected, especially if voters regarded the primary as being as significant as the general election.
We know that “top two” wouldn’t result in more independents or third party members, because we have all the California 1998 and 2000 blanket primary data, and we have all the Washington state 1934 through 2000 blanket primary data. No minor party member or independent ever placed first or second, except one Reform Party member for Washington state house in 1996 (obviously, this sentence excludes instances when there was only one major party member running). Audie Bock, the Green who was actually elected to the California legislature in a special election in 1999, herself didn’t place first or second in the first round. She still got on the run-off ballot because blanket primary rules let the top vote-getter from each party into the 2nd round, fortunately. That wouldn’t be true for “top two”.
California top-two was voted down in 2004, not 2002.
“The idea that poltical parties could endorse candidates was devised after the law challenged in court.”
That’s not true. Parties have always had the First Amendment right to endorse candidates. During the “top two” initiative campaign in Washington state, the two major parties made it clear that, if the “top two” were implemented, they would use a caucus/convention system to endorse candidates. When the U. S. district judge struck down the “top two” in July 2005, the two parties had already begun holding endorsement caucuses.
Louisiana has had the “top two” since the 1970s, and the parties there have often endorsed candidates. There have, in fact, been state and congressional races in which the national Republicans and the state Republicans endorsed opposing candidates. (I’m not aware as to whether that has ever happened on the Democratic side.)
The “top two” is fine for local and judicial elections, but, in my view, it’s a terrible idea for state and congressional elections. This is evidenced by the fact that only Louisiana uses the “top two” for all of its state elections. And Louisiana, which alone has used the “top two” for its congressional elections, is restoring party primaries for those elections.
As the two Richards note above, the “top two” makes it nearly impossible for independents and small-party candidates to get elected. (There certainly have not been any non-major party candidates elected to statewide or congressional offices during the 30-plus years that Louisiana has used the “top two.”) If a small party’s message is kept out of the final, deciding election, the party loses its main reason for existing.
Why should the voters be limited to only two choices in the final election? In a partisan system, each qualified party has the right to nominate one candidate for the general election, and there is no limit on the number of independents who can run. In my state of Mississippi, e.g., we now have nine qualified parties, with several more on the way.
When the two runoff candidates are from the same party, not only is that party split, but the other parties’ loyal voters are effectively disenfranchised.
Here’s a piece that I wrote during the 2004 California and Washington state initiative campaigns.
There is no reason to expect that the experience under a blanket primary would translate to a Top 2 primary. Even if the candidates and voters behaved identically, there could have been a different outcome (eg 1980 Washington gubernatorial race; 1999 California AD 16 special election).
Looking through the 2000 California state assembly results, what is very striking is how little the partisan breakdown changed between the June primary and November general in districts where there were no actual primary contests. Even though turnout was higher in November, the Democratic-Republican-Libertarian-etc. breakdown was often within 1%. Voters appeared to simply be voting their party.
In districts where there was a contested primary in one of the major parties, there was greater total support for the candidates in the contested primary than the primary winner received in the general election (eg if 4 GOP candidates shared 60% of the vote in the primary, the winner might get 50-55% in the general). Some voters probably recognized that the contested primary was the only actual decision being made, and voted for one of the 4 GOP candidates, as opposed to choosing one of the 4 Republicans, 1 Democrat, 1 Libertarian, and 1 Green, who just happened to be Republican. I suspect that if a voter could vote in primaries of multiple parties that they would.
If it had been clear from the start that the Top 2 candidates regardless of party would advance, then different candidates might have been on the ballot, and they might have campaigned differently. Independent candidates might also have run (under the California blanket primary, they were excluded from the primary). And voters might have evaluated the candidates differently.
That Audie Bock would not have advanced to the special election in 1999, if a Top 2 system was used, should probably be counted as a plus for Top 2 — the leading two Democrat candidates had 87% of the total vote. On the other hand, if the 2000 general election had been a Top 2 primary, then Bock would have advanced to a 2-candidate general election.