At the June 8, 2010 California primary, voters will see two election-law related ballot measures, both put on the ballot by the legislature. One is the “California Fair Elections Act of 2008”, which implements public funding for candidates for Secretary of State in 2014 and 2018. The other is the “Top Two Candidates Open Primary Act, by State Senator Abel Maldonado.
The California Constitution says, “If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.” In June 1988, two campaign finance measures both passed in California. In Taxpayers to Limit Campaign Spending v Fair Political Practices Commission, 799 P 2d 1220 (1990), the California Supreme Court said that if two measures both pass, and they each attempt to create a comprehensive regulatory scheme related to the same subject, only the measure that received the most votes may take effect.
In a later decision, the California Supreme Court said in Yoshisato v Superior Court, 831 P 2d 327 (1992) that if two ballot measures both pass, and they technically both amend the same section, but in different ways, there is no conflict if the two measures were not presented to the voters (in the Official Voters Handbook) as conflicting or competing ideas.
The two election law measures that will be on the June 2010 California ballot do not fit together. The public funding measure has at least eight sections that presume that political parties nominate candidates for state office, and that independent candidates do not appear on the primary ballot. But the top-two open primary sets up a scheme under which parties would not have nominees for state office, and also provides that independent candidates would run in the primary.
The public funding measure sections that conflict with the top-two open primary structure are:
(1) 91045 discusses parties whose nominee for Secretary of State received 10% of the votes at the last election, but under “top-two”, parties wouldn’t have nominees for Secretary of State.
(2) 91046 defines an “office-qualified candidate” as a member of the type of party defined in section 91045.
(3) 91051 defines “party candidate” as a member of a party that holds a primary election, but under “top-two”, parties wouldn’t have primaries.
(4) 91053 defines “performance-qualified candidate” is defined as a member of a party that polled 10% who raises $5 contributions from at least 7,500 voters, or an independent candidate who has raised $5 contributions from at least 15,000 voters, or a member of a qualified minor party that has raised $5 contrib utions from at least 15,000 voters.
(5) 91071(b)(2) refers to a candidate who won a party’s nomination.
(6) 91073(b) says an independent candidate who does not run in a primary may become a performance-qualified candidate by collecting twice as many qualifying contributions as required of an office-qualified candidate.
If both the public funding measure and the “top-two” measure pass, the Maldonado “top-two” measure would take effect, because it is a Constitutional Amendment. But if they both pass, it appears that the public funding measure could not go into effect, because of the California Constitutional provision quoted at the beginning of this post. If they both pass, the public funding measure would make it impossible for any candidate to receive public funding. No independent candidate could receive public funding because of section 91073(b) which only lets independents qualify if they don’t run in a primary. There could be no such independent candidates, because under “top-two”, all independents run in the primary. And no party member could receive public funding because the definitions of candidates who qualify for public funding are all based on that candidate’s party having polled a certain number of votes for Secretary of State in the previous election.
Furthermore, section 91065 says independent candidates may raise contributions from January through June, whereas members of qualified parties may raise contributions from September of the year before the election, through February of the election year. If “top-two” passes, and all candidates run in the primary (even independent candidates) it would make no sense for some of those candidates to be permitted to start raising money in the year before the election, whereas others could not.
Finally, 91095.5 has special rules for candidates who receive public funding who are attacked during the primary season by a candidate running in another party’s primary, but this section has no application if “top-two” passes.
Any state official trying to administer the public funding, if it passed, and if “top-two” also passed, would find it impossible to know how many qualifying contributions are needed to qualify, and how much money should be award to the candidate, because the public funding measure treats major party members, minor party members, and independent candidates, differently from each other for both those variables. The definitions would no longer be operative in a “top-two” world. It seems likely that even if the public funding measure passes, it will be a nullity of “top-two” also passes.