Small Parties and Independent Voters Frustrated With Experimental California Top-Two Primaries Law

Democracy, elections and voting at Democracy Chronicles

Ballot Access News is usually the best place on the web to get good information about third party candidates but the recent coverage of the California top-two primary system is exceptional even for Ballot Access News editor and election expert Richard Winger.  The first bit I will relay is from the post titled “October 22 Hearing Set on Whether Six Opponents of California’s Top Two Primary Must Pay Almost $250,000”  The issue here seems very simple.  Richard Winger, an election reformer of the purest kind, is being asked to pay money for suing over the unconstitutional nature of the top-two primary.  We at Democracy Chronicles need to show support for Richard Winger who has been working hard to ensure that parties and independent candidates who don’t happen to be Democrats or Republicans are not entirely wiped off the American landscape.  The Ballot Access News post also had a link to an article in BeyondChron, apparently a San Francisco newspaper.  Here is an excerpt:

On October 22, a San Francisco Superior Court will hold a hearing on whether six individuals, including me, must pay almost $250,000 to the attorneys who intervened in the lawsuit Field v Bowen. Field v Bowen is a lawsuit filed in state court in 2010 that charged that two particular details of California’s new top-two primary law are unconstitutional. In 2011 the lawsuit lost. On August 1, 2012, a Superior Court Judge ruled that the six plaintiffs must pay attorneys fees to the groups that intervened in the case to defend the law. On September 17 that judge recused himself from any further proceedings on the attorneys fee matter, so a new judge will re-consider the matter on Monday, October 22.

Also, Ballot Access News had some interesting analysis concerning the validity of the top-two primary election methodology that is very interesting considering we have had a recent article on Democracy Chronicles by author Richard Fobes titled “Against Arizona’s Proposition 121, a Flawed “Top-Two” Primary” about the damage that could be inflicted by a similar top two primary system.  Ballot Access News’ post, “Political Scientist Seth Masket Studies California Top-Two 2012 Primary“, was about a professor at the University of Denver who supports the top-two system.  As an advocate for third party ballot access, it was easy to predict how Richard Winger would respond:

Seth Masket, a professor of Political Science at the University of Denver, delivered this paper for presentation at a recent conference in Ventura, California, at the California State University Channel Islands. The paper concludes, “The district-level results of the 2012 primary in California suggest a legislature that will not be dramaticallly different from those that preceded it.” This is because “If California election law now says that primaries are not the way parties determine nominees, then parties will find some other way to determine nominees.” The paper documents this conclusion.

Professor Masket made a factual error on page four when he said, under the old California system in effect 2001-2010, “unaffiliated voters could register with a party on the day of the (primary) election to participate in that contest.” Actually, under the system in effect for congressional and state office primaries 2001-2010, every independent voter who participated in the primary (either by mail or at the polls) was asked if he or she wished to choose a Republican primary ballot or a Democratic primary ballot.

The Secretary of State’s 2010 Poll Worker Training Standards make this clear and can be seen here. The instructions prepared by each county election office instruct poll workers to show each independent voter at the polls a card that says, “VOTERS WHO ARE NOT REGISTERED WITH A PARTY. YOU MAY REQUEST A DEMOCRATIC PARTY BALLOT WITH NONPARTISAN CONTESTS AND MEASURES OR A REPUBLICAN PRIMARY BALLOT WITH NONPARTISAN CONTESTS AND MEASURES.” When an independent asked for a major party primary ballot, his or her voter registration continued to be “independent.”

It is not too surprising that Professor Masket got this wrong. Most organizations that support the top-two system, including IndependentVoting, IndependentVoice, and the California Independent Voters Network, constantly repeat the misinformation that the old California system forced independents to affirmatively ask for a party primary ballot, or even worse, they deny that independent voters could participate at all. Thanks to Rick Hasen for the link to the Masket paper.

Also, from the post, “Thomas D. Elias, California Columnist, Celebrates the Absense of Minor Party Candidates on the California Ballot” there is a link to an unusually ridiculous article from Thomas D. Elias.  Here is an excerpt from the Ballot Access News article:

Thomas D. Elias, a syndicated columnist in over 50 California daily newspapers, here celebrates the exclusion of minor party candidates from the November ballot. He is not factually correct when he says that there are no minor party candidates on the ballot for any congressional or state office. There are three Peace & Freedom Party candidates for the legislature on the November ballot. All three ran in races in which only one major party member filed to be on the primary ballot. Naturally, when only one major party member runs in a top-two primary, that leaves an opening for a minor party candidate to come in second. All three Peace & Freedom Party nominees happened to have been write-in candidates in the primary.

As the biggest state in the country and extremely influential government, the methodology California uses to elect its representatives is vitally important to democracy.  The very fact that such fundamental dials in our democracy are being played with is enough to draw interest from the American public.  Wikipedia has some basic information about top-two primaries that it calls non-partisan blanket primaries.  Take a look:

A nonpartisan blanket primary (also known as a qualifying primary, top-two primary, Louisiana primary, Cajun primary or jungle primary) is a primary election in which all candidates for elected office run in the same primary regardless of political party. Under this system, the top two candidates who receive the most votes advance to the next round, as in a runoff election. However, there is no separate nomination process for candidates before the first round, and parties cannot thin the field using their own internal processes (such as a convention). Similarly, it is entirely possible that two candidates of the same party could advance to the second round.

Wikipedia also has some information specifically about California’s law:

Proposition 14 is a California ballot proposition that appeared on the ballot during the June, 2010 state elections. It is a constitutional amendment that changed California’s election processes by consolidating all primary elections for a particular office into an election with one ballot that would be identical to all voters, regardless of their party preferences (a nonpartisan blanket primary). The two candidates with the most votes in the primary election would then be the only candidates who would run in the general election, regardless of their party preference, effectively transforming California legislative elections from first-past-the-post to a two-round system. The proposition was legislatively referred to voters by the State Legislature, and it was approved by 54% of the voters.