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.

On April 6, the San Jose Mercury News endorsed California’s Proposition 14, the top-two election measure. The editorial is here.

The editorial says that Proposition 14 wouldn’t injure minor parties, but the only reason it gives for saying so is that in 1999, Audie Bock, a Green Party member, was elected to the legislature in a special election. However, Audie Bock only got 8% in the first round, placing third. Under Proposition 14, she could not have even run in the second round.

When she was elected in 1999 in the second round, she only won because the blanket primary rules permitted the top vote-getter from each party to advance to the second round.

The editorial also says the U.S. Supreme Court upheld a top-two system. The whole truth is that the U.S. Supreme Court only upheld it on freedom of association grounds on its face. The Court left open the possibility that the top-two system violates freedom of association as applied. The Court also said that it was not deciding whether the system violates its ballot access precedents, or whether it violates trademark law for parties that have trademarked their name. That is why the case against the Washington state top-two is facing a trial in October 2010. On March 9, 2010, the U.S. District Court in Washington emphatically rejected the state’s request that the ballot access and trademark parts of the case be eliminated from the case.

The San Jose Mercury News also endorsed Proposition 62 in 2004. Proposition 62 was another top-two open primary ballot measure, but it was defeated.

Doe v Reed, the case from Washington state over whether names and addresses of petition signers should be public, is being heard in the U.S. Supreme Court on April 28.

The American Bar Association maintains an excellent web page that makes it possible for anyone to read any or all briefs, in any case about to be argued in the U.S. Supreme Court. Anyone may read the Doe v Reed briefs at this link. Scroll down to April 28.

Fourteen amicus briefs have been filed in support of privacy, and nine have been filed in support of the state of Washington, which wishes to release the names and addresses to groups so that the information may be put on a web page. One amicus on each side was submitted late, and each may or may not be accepted by the Court.

Some of the groups arguing on the side of the state say that the names and addresses should be released because that makes it possible to detect fraud. In order to buttress their position that fraud exists, two briefs attack Ralph Nader’s 2004 petition efforts. The brief of the National Conference of State Legislatures, footnote 8, refers the reader to a New York Times story of October 14, 2004, titled “Court Strikes Nader from Pennsylvania Ballot.”

The brief of Ohio and 17 other states asserts that because Nader’s 2004 petition from Ohio was public information, the 2004 decision of the Secretary of State to put Nader on the ballot was reversed. This account is very misleading. It says that the people who challenged Nader’s petition found additional fraud that Ohio election officials had missed. Actually, the challengers did not find any fraudulent signatures; they merely showed that some of Nader’s petition circulators weren’t Ohio residents, so that all their work was then stricken (since then, the Ohio ban on out-of-state circulators has been invalidated by the 6th circuit).

Some of the briefs in favor of disclosure denigrate the secret ballot, and say that the reason all states made voting secret was to prevent fraud, not to protect privacy. However, a leading impetus for the secret ballot was to protect employees from the threat of losing their jobs if they voted for parties or candidates not favored by their employers.

Much of the material in the amici briefs on both sides is repetitious. Probably the most interesting brief on the side of the state is the brief of Susan Wagner, who explains that her initiative in Massachusetts to outlaw killing horses was the victim of a paid petitioning company that was circulating her petition and also a petition to ban same-sex marriage. Because the petition on horses was far more popular than the petition on marriage, the paid petitioning company that was circulating both petitions tricked many signers into signing the less popular measure, by the placement of the two petitions on clipboards. Susan Wagner filed this amicus jointly with the Massachusetts Gay and Lesbian Political Caucus.

Probably the most interesting amici brief on the side of privacy is the one filed by the Committee for Truth in Politics and other groups, which shows how the existence of the internet has drastically changed the ability for anyone to learn a great deal of information about any individual. Putting the names and addresses of petition signers into a searchable database on the net is something very new in politics. If it spreads, it will surely make it more difficult to persuade many people to sign any kind of petition. Many individuals try to keep their residence address private.

The ACLU did not file an amicus brief in this case. When a case is in the U.S. Supreme Court, the national ACLU office decides whether or not to file an amicus brief. When this case had been in the 9th circuit, the Washington State ACLU had filed a brief on the side of the state, but there is no ACLU brief in this case in front of the U.S. Supreme Court.