The Los Angeles Times of February 20 has this op-ed by Steve Hill of the New America Foundation, questioning whether the “top-two” election system will help California.

The California legislature, meeting all night long, passed two bills at about 4 a.m. on February 19 to ask the voters if they wish to revise election systems. SCA 4 changes the California Constitution, and passed 27-12. In the Senate, the “No” votes included two Democrats (Leland Yee of San Francisco and Loni Hancock of Berkeley) and ten Republicans. SB 6 changes the California election law and passed by an almost identical margin. One cannot presume that legislators who voted “Yes” were actually in favor of the proposals; most of them opposed the idea but felt they had to vote for the bills in order to break the budget stalemate.

The two proposals, together, provide for a Washington state-style election system. All congressional elections, and all elections for state office except for Superintendent of Public Instruction and judicial offices, would be designated “voter-nominated” offices. All candidates would qualify for the June primary ballot. Then, the top two vote-getters would compete in November. All voters would get the same ballot for these offices.

The ballot would say, “My party preference is (whatever) party.” However, candidates could only choose the name of a party that is currently qualified for the ballot. It seems plausible that a party like the Socialist Workers Party would have a strong lawsuit to force the state to let its members, who are running for office, specify that they prefer the Socialist Workers Party. The bills say that members of unqualified parties could only have “No party preference” on the ballot. This seems to violate the First Amendment. Since all candidates would get on the ballot by filing fee and a petition of either 40 or 65 signatures, the issue of ballot crowding would no longer have any relevance to party qualification.

Also, the proposals seem to violate the U.S. Supreme Court’s many ballot access precedents, which say that a vote test in a primary is equivalent to a petition (Munro v Socialist Workers Party) and also say that petitions cannot be greater than 5%. The top-two system, in practice, requires a showing of support of approximately 25% to 35% in the primary, and since the U.S. Supreme Court has said that vote tests are equivalent to petitions, and since petitions cannot be greater than 5%, therefore the vote test is also likely an unconstitutional ballot access hurdle.

That theory is only true because the California primary, like the Washington primary, would not be an “election”. An “election” is an event at which someone can be elected. The California proposal does not permit anyone to be elected in the primary, even if that person got 100% of the vote. The only election would be in November. Ballot access to “the” election is protected, even for candidates too weak to have a realistic chance of winning.

For clarification, note that the proposals that passed are not the same as ACA 6, which had been pending in the legislature. ACA 6 did not relate to congressional elections. The original version of the bill that did pass, SB 6, had been originally introduced last month as a bill relating to hazardous wastes. All the language about hazardous wastes was deleted from the bill, and the election law provisions were added into it, before it passed.