The Dark Side of the California Open Primary Proposal

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By Richard Winger
Ballot Access News

In February 2009, the legislature voted to put a measure on the June 2010 ballot that would drastically change California elections for Congress and state office. It is called the "Top-Two Open Primary", and it would provide that all candidates for those offices run on a single primary ballot in June. All voters would use that ballot. Then, only the two candidates who came in first or second would be on the November ballot.  

The California Chamber of Commerce has already endorsed it, and several newspapers have endorsed it as well. But, supporters have not mentioned the flaws in the plan, nor have they mentioned that the system has been used in two other states and it hasn't worked out the way they say it should.

First, the measure harms voting rights 5 ways: (1) it says write-in votes can't be counted in November for Congress and state legislature; (2) it makes it far more difficult for ballot-qualified minor parties to remain on the ballot, by eliminating the 2% vote test by which they now remain on the ballot, so that they could only qualify under the more severe standards for new parties, i.e., approximately 100,000 registered members (Peace&Freedom now has 58,000 and would be a goner, and Libertarians at 82,000 would be threatened); (3) it closes off all routes to the November ballot for people who enter the race after mid-March, whereas under the present system independents can join the race by submitting a petition in August; (4) it doesn't treat all candidates equally, even in the first round; some candidates who desire a party label would have that label on the ballot but others wouldn't; (5) we know from the experience of the other two states that have used the system, Washington and Louisiana, that it wipes out minor party and independent candidates from the November ballot.

Also the Maldonado measure harms Loni Hancock's ballot measure, also on the June 2010 ballot, for public funding. The Hancock measure conflicts with the top-two measure, so if they both pass, only the one with more votes takes effect. Loni Hancock's bill, section 91045, depends on the concept of parties having "nominees" for state office, but under top-two, parties would no longer have nominees for state office.  Also, Hancock's section 91071(b)(2) talks about a candidate who "won the party's nomination". 

Hancock's measure passed in 2008, whereas Maldonado's measure passed in 2009, so normally it is up to the later measure to put in language to reconcile itself with another measure that might pass simultaneously. But Maldonado's bill was unable to do this because it was introduced and passed on the same night, and legislative rules do not permit a bill to modify campaign finance laws if the bill hadn't been available to the public at least 2 weeks before being acted on.

Also, the Maldonado measure would increase the cost of campaigning. Candidates who anticipated winning, or at least having a good chance to win, would need to run two separate campaigns in front of the entire electorate, one in June and one in November. That's more expensive than running one campaign before a discrete swatch of the electorate and then a second campaign in front of the entire electorate, as under the existing system.

But, you may think, the measure does so much good that it is worth having all these disadvantages. But the funny thing is, it doesn't help more moderate candidates.  This is clear when one sees what has actually happened when it has been used.  In Washington, where it was used for the first time in 2008, the gubernatorial race was between a very liberal Democrat, Christine Gregoire, and a very conservative Republican, Dino Rossi. Rossi wanted to let school districts decide for themselves whether to teach creationism.

He wanted to let drug stores refuse to sell the morning-after pill.  He wanted to reduce the minimum wage. Gregoire was a standard liberal Democrat who supported civil unions, abortion rights, and public employee unions. In other elections in Washington state in 2008, all 8 US House members were re-elected. There was no US Senate race. Out of the 123 legislative races, only one incumbent lost in the primary, and he had a scandal and would probably have lost anyway.

In Lousiana, which has used the system for state office since 1975, and used it for Congress 1978-2006, many gubernatorial races have had run-offs between people who were not moderates. 1991 was between Ku Klux Klan leader David Duke and former Governor Edwin Edwards, who later went to prison for corruption.  1995 was between Cleo Fields and Mike Foster.  

Foster's number one plank was stopping legal abortion. Fields was a fine black legislator who had supported Jesse Jackson for president in 1988. He was only 32 years old and not the kind of person who was going to be elected Governor at that time in that state.1999 was between Governor Foster again and William Jefferson, another black legislator who was sent to prison this year for corruption.

In the Congressional races in Lousiana, in all the 30 years that system was in place, only one incumbent from either house of Congress was ever defeated for re-election (except that in 1992, two incumbents had to run against each other in two districts because of redistricting and reapportionment).

Supporters of "top-two" in California say that the general election results for US House and legislature are such that the same party always wins. But, actually, in 2008, four Assembly seats switched between the parties (3 went Rep to Dem, one in the Central Valley went from Dem to Rep). Also, it's already the case in California that registered independents can vote in any Republican or Democratic primary for Congress and state office.  

Independents are over 20% and Republicans are only 31%, so already independents can have a profound impact on Republican primary outcomes. Moderate Republicans still mourn that Tom Campbell lost the 1992 Republican primary to Bruce Hersschensohn, but that was before independents could vote in the Republican primary.

It is true that in the 2000 California blanket primary, 3 Republican primary assembly races were changed by the votes of non-Republicans. We know this because the voters were counted separately, by the registration of each type of party. But that could happen now as well, and in the future, by the votes of registered independents in Republican primaries. Backers of "top-two" have already won their battle; they already have what they want, if they would just use it.

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Richard Winger is editor of Ballot Access News, and has been accepted as an expert witness on election law in federal courts in 9 states, including California.