California voters will vote on the “top-two” system in June 2010. Recent press reports say that two former Speakers of the California Assembly, Willie Brown and Robert Hertzberg, support the idea. Also, California Forward, a prestigious organization formed last year, does not support “top-two” yet, but its leaders say they support some type of primary election change. They believe that the current semi-closed primary (in which independents can vote in either major party’s primary for Congress and state office, but which otherwise is a closed primary) is responsible for the election of Republicans to the state legislature who are too partisan and inflexible.
Many people who support “top-two” are unaware that the system, in practice, results in a complete absence of minor party and independent candidates from the November ballot. In Washington state, which used the system for the first time in 2008, no minor party or independent candidates appeared on the November ballot for either Congress or for statewide state office, for the first time since Washington has been a state.
Many “top-two” supporters also believe “top-two” is the only constitutional system that will discourage ideological, overly-partisan Republicans from getting elected to the legislature and blocking changes that need a two-thirds vote in the legislature. However, there are at least five other systems that might get what the proponents desire, and which have less legal impediment than “top-two” does:
1. California could return to cross-filing, which was used between 1914 and 1958. This is the California term for fusion. The California legislature between 1914 and 1958 was known for being very non-ideological, with a substantial number of legislators having been nominated by both major parties.
2. California could try non-partisan elections for the state legislature. The voters considered this idea in 1915 but defeated it.
3. California could try a classic open primary, in which the practice of voters joining political parties on the voter registration form is abolished. Then, on primary day, each party has its own primary ballot, but all voters are free to choose any party’s primary ballot.
4. California could try a system in which any candidate is free to either run in the “top-two” primary, or instead skip the primary and qualify directly for the November ballot. The California blanket primary, used in 1998 and 2000, had this characteristic to a certain degree; independent candidates stayed out of the primary and petitioned directly to the November ballot. In this proposed new system (which has never been tried in any state), candidates could choose to run in the primary, and the top two vote-getters would be on the November ballot. Candidates who ran in the primary and didn’t place in the top two would not be able to appear on November ballot. However, candidates who skipped the primary could qualify for the November ballot. The incentive a candidate to run in the primary would be that the candidate expects to qualify among the top-two and wishes to campaign in the primary season.
5. California could use Instant-Runoff Voting and abolish the primary completely.
