The Santa Clara, California, city Chamber of Commerce has voted to oppose Proposition 14, the “top-two” ballot measure on the June 8 ballot. On March 23, the chamber had heard a presentation from representatives of both sides. Brian Brennan from the Silicon Valley Leadership Group had spoken for the measure, and Christina Tobin of Free & Equal had spoken against it.
All the briefs have now been filed in U.S. District Court in Colorado, in Riddle v Secretary of State. This is the case over the constitutionality of a law that says no one may run as an independent, if that individual was registered for even one day as a member of a qualified party during the year before filing.
Although a bill to ease the restriction has passed the House and the policy committee in the Senate, the legislature apparently will not advance that bill further, and instead will wait for the court decision. The decision could come at any time and is very likely to be out before the end of this month.
Benton County, Tennessee, a small-population county in the northwestern part of the state, is on the verge of disqualifying the voter registrations of 18% of the registered voters. See this story.
On the afternoon of Monday, April 5, a 3-judge U.S. District Court blocked Columbia, South Carolina, from electing a city council member to the vacant 2nd district seat. The election had been scheduled for April 6. The city is conducting a regularly-scheduled election for other city offices anyway on April 6, and the regularly-scheduled part of the election will continue. However, the votes to fill the vacancy won’t count. See this story. The decision is Butler v City of Columbia, 3:10cv-794. It is signed by Judges Clyde H. Hamilton, a Bush Sr. appointee on the 4th circuit, Joseph F. Anderson, a Reagan appointee, and Cameron McGowan Currie, a Clinton appointee.
The second district did not become vacant until March 9. The city decided to fill the seat at its regular April election, even though the deadline for filing had passed, and absentee voting had already commenced. The 3-judge panel stopped the election because the rules for this special election had been changed and the U.S. Justice Department had not approved those changes. South Carolina is one of the states that is subject to section 5 of the Voting Rights Act. Thanks to Rick Hasen’s ElectionLawBlog for this news.
California Forward was formed in 2006 by some centrist political and business leaders. It is headed by former Democratic Assembly Speaker Robert M. Hertzberg, and Thomas V. McKernan, head of the Southern California Automobile Club. It recently released a report backing Proposition 14, the “top-two” primary measure. The report was written by political consultant T. Anthony Quinn and Professor R. Michael Alvarez and can be seen here. The Report itself is 33 pages and the Appendices are another 18 pages.
The Report emphasizes that Proposition 14, if passed, will increase voter turnout. To support that point, the Report has two tables, Table One and Table Seven, both of which purport to show that primary turnout was better in California in the “blanket primary” years, 1998 and 2000.
Tables One and Seven both omit the presidential primary of 2008. The omission makes it appear as though the best primary turnouts in recent California history both occurred in the two blanket primary years. Table One, on page 7, lists primary turnout in 1998, 2000, 2002, 2004, 2006, and the June 2008 primary. It shows that the two best turnouts were 1998 and 2000. However, if the chart had listed the presidential primary of 2008, which had a 57.7% turnout of registered voters, the readers could have seen that 2008 (which had a semi-closed primary for Democrats and a closed primary for Republicans) topped both blanket primary years, which had turnouts of 42.5% in 1998 and 53.9% in 2000. Table Seven, on page 20, includes all primaries 1990 through 2008, but it also omits the February 2008 primary.
The Report does not mention that primary turnout dropped in both Louisiana and Washington immediately after those states switched to a top-two system. The word “Louisiana” does not appear anywhere in the Report, even though that state has had more experience by far with a “top-two” system than any other state.
The Report constantly says that California now has a “closed primary”, but Professor Alvarez was a contributor to a scholarly, neutral work about the blanket primary, and that book defines “semiclosed primary” to be the type of primary California has now for state office and congress. That book is “Voting at the Political Fault Line: California’s Experiment with the Blanket Primary.” It was published in 2002 by the University of California Press. One would think that Professor Alvarez, as a contributor to that book, would have stuck to the definitions in that book.
The Report repeatedly says that California independents are now “disenfranchised”, although footnote 9 on page 7 acknowledges that independents can vote in California major party primaries for Congress and state office. Page 8 says that independents “may not be told that he or she can request a partisan ballot.” Actually, state law and regulations tell election officials at the polls to ask independent voters to read a short card that tells them that they may request a major party primary ballot.
Page eight says currently, voters in primaries have little choice because often, the primary contest “has already been decided by local power brokers.” But, if such local power brokers already have this power, one wonders why they wouldn’t continue to have it even if Proposition 14 is enacted.
Page nine says that Proposition “will provide voters more choice on the general election ballot.” Currently, voters generally see an average of four candidates on their general election ballots for Congress and state office, and are permitted to cast a write-in vote. Because Proposition 14 will reduce voter choice in the November ballot to only two candidates, and will not permit write-in votes to be counted, one wonders what the authors mean. Page ten explains that “more choice” means that sometimes general election voters will have the “meaningful” choice of choosing between two candidates of the same party.
The Report repeatedly says that the U.S. Supreme Court upheld “top-two” in 2008, without telling the reader that the Court only upheld it as to freedom of association on its face, and that the case is still pending on whether it violates freedom of association as applied, and whether “top-two” violates the ballot access precedents and trademark law.
The Report, on page ten, says that the measure “will appear on the June 2010 ballot as the ‘Top Two Candidates Open Primary Act’, but actually it will appear on the ballot with the Title, “Proposition 14. Elections.” The ballot description does not include the word “open” nor does it include the phrase “top-two”.
The Report says on page 42 that when Oregon voters voted on a top-two measure in 2008, that “an Oregon Superior Court” imposed a confusing title on the Oregon measure. Actually the Oregon Supreme Court imposed the title. Oregon does not even have Superior Courts. The Oregon state trial courts are called Circuit Courts.
UPDATE: the Report says that when California’s legislature was composed of people who had been elected in the blanket primary, the budget was passed on time. However, the only session of the California legislature in which all members had been elected in a blanket primary was the 2001-2002 session. In 2001, the budget was not passed until July 24, which was 25 days late. And in 2002, the budget was not passed until September 1, when it was 61 days late. Thanks to Darcy Richardson for this research.
