CALIFORNIA TOP-TWO SYSTEM DRAWS CRITICISM FROM SUPPORTERS AND OPPONENTS ALIKE

California has used a top-two system starting in 2011, but never before has it faced such critical commentary.  This is because of the persistent possibility that it might create a November ballot that lists only two Republicans, with no write-in space.

Paul Mitchell, a Democratic statistician, has a website that estimates the probability that two Republicans will place first and second on June 2.  On February 26, it estimated the probability of that happening at 20.0%.  See twins-production-9381.up.railway.app.  It followed a PPIC Poll released earlier that day showing Republican Steve Hilton 14%; Democrat Katie Porter 13%; Republican Chad Bianco 12%; Democrat Eric Swalwell 11%; Democrat Tom Steyer 10%.  No one else had more than 5%.  Undecided was 10%.

Every commentator believes that a November ballot with only two Republicans would be an unjust ballot.  Democrats consistently poll 60% in statewide partisan general elections in California, if there is one Democrat and one Republican running.  Even some of the leaders who supported the top-two system have said so recently.

Former State Senator Steve Peace wrote recently, “It’s time for more choice in California.  Nonpartisan top-four (or five) primaries that allow voters more candidates in the general election are the next great nonpartisan reform.”  Peace was one of the top-two system’s boosters when it was on the ballot in 2010.

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On March 12, Arizona Governor Katie Hobbs vetoed HB 4115. It would have required paid initiative petitioners to tell everyone approached what state the circulator lives in and that the circulator is being paid.

Here is the veto message, which is very short and general.

On March 26, a California state trial court refused to restore Kelly Honig to the primary ballot. She is running for Assembly, 42nd district, and is a Democrat. She is Mayor of Westlake Village. Honig v Weber, 26WM000078, Sacramento Superior Court. The 42nd district contains parts of two counties, Los Angeles and Ventura. Honig picked up paperwork to qualify for the ballot in the Ventura County Elections office, because it is far closer to her home than the Los Angeles County elections office, which is in the southeast corner of Los Angeles County. Westlake Village is on the western edge of Los Angeles County.

The election law says she can only pick up papers in her county of residence. So even though she had enough valid signatures and there were no flaws in her petition or other paperwork, the Secretary of State kept her off the ballot, and Judge James P. Arguelles sided with the Secretary of State. Here is the decision.

The California Democratic Party, which had endorsed one of Honig’s Democratic opponents, filed an amicus curiae brief urging the court to keep Honig off the ballot.

Here is a statement from the candidate’s attorney: “Statement of Steven Churchwell, election law attorney for Kelly Honig, regarding the court’s ruling yesterday refusing to order the Secretary of State to place her on the ballot for Assembly District 42:

Assembly District 42 includes parts of Ventura and Los Angeles Counties. Kelly Honig, a candidate for Assembly District 42, filed more than 10 documents with Ventura and Los Angeles Counties. She completed her filings 2 weeks before the deadline. The one mistake she made was filing her Declaration of Candidacy in Ventura County instead of in Los Angeles County, the county of her residence.

The Secretary of State waited until March 19 to inform Ms. Honig that the SOS was not going to place her on the ballot, even though its letter stated, “Ventura County should not have accepted your filing fee or issued you a declaration of candidacy and nomination papers.”

The court denied her petition for a writ of mandate to place her on the ballot. The court reasoned that the appellate courts have applied the doctrine of “substantial compliance” to requirements for ballot initiatives and referenda, but not to candidates. Candidates must “strictly comply” with all of the requirements. Even if that is true, the distinction makes no sense. Why are ballot measures more deserving of the protection of the courts than candidates for elective office?

The court said the Ventura and Los Angeles County Registrars, and the Secretary of State had no duty to catch the error, even after weeks of interaction by all three with her on multiple occasions.

Finally, when verifying a signature on any “election petition or paper,” every elections official is required by Elections Code Section 105 to check the residence address of the signer. The signature on a Declaration of Candidacy is that of the candidate. Had this step been done, it would have revealed that Petitioner was not a registered voter in Ventura County and, therefore, was not entitled to file the Declaration of Candidacy in that county The court ruled, however, that a Declaration of Candidacy is not an “election paper.”

The court’s rigid enforcement of the filing location requirement elevated form over substance, disenfranchised the voters in AD 42, and denied a candidate ballot access based purely on a technical defect that would have had no impact whatsoever on the conduct of the election.”