Open Primaries in California: The Future of Proposition 14

In June 2010, California voters will have the chance to fundamentally alter the state’s primary election system. Currently, California operates under a modified closed primary system. Under this system, political parties nominate candidates for the November General Election through a June Primary Election. The primary is “closed” because voters may select only their own party’s candidates, and may not “cross over” to vote for candidates in other parties.  It is a “modified” closed primary because each party has the option of allowing independent voters (also known as “decline-to-state” voters) to participate in its primary. Currently, both the Democrat and Republican parties allow unaffiliated voters to participate in the primary election for their parties.

If voters elect to pass Proposition 14, the state will switch to a “top two” candidate open primary system. This system differs from the current format in two ways. First, all voters, regardless of party registration, would have the option of voting for any candidate. Second, the primary’s top two candidates for each office, again regardless of political party, would advance to a runoff election in November. If two Democratic candidates each receive more votes than any Republican candidate for the office, the November election would feature a run-off between the two Democrats, or vice versa.

The Public Policy Institute of California (PPIC) recently issued a report detailing the pros and cons of Proposition 14. Advocates of Proposition 14 argue that its passage would increase voter participation, enhance voter choice, and increase competition. They claim that this would ultimately result in the election of more moderate candidates and that elected candidates would be more representative of their constituents. Those who oppose Proposition 14 argue that it would open the door for party manipulation, could confuse voters, and would increase campaign costs. Finally, opponents contend that Proposition 14 would exclude smaller parties from the November Election and interfere with party members’ First Amendment right to free association by preventing them from nominating the candidates of their members’ choice.

The “Top Two Primaries Act” only applies to congressional and state elective offices, not to Presidential primaries.

Washington State’s Initiative No. 872

In November 2004, Washington State voters passed Initiative No. 872 – an initiative similar to California’s Proposition 14. Tony Quinn, a leading expert on California redistricting and election reform, notes that “in a practical manner, [Proposition 14] is exactly the same as the Washington law.” Although Washington’s initiative passed easily with over 60% of the vote, it has been met with legal resistance. In 2005, the U.S. District Court for the Western District of Washington held that the initiative violated the U.S. Constitution. By forcing political parties to allow outsiders to elect their candidates, the district court held, Initiative No. 872 violated the First and Fourteenth Amendments associational rights. The Ninth Circuit Court of Appeals affirmed the district court’s decision.

In March 2008, the U.S. Supreme Court reversed, and held that the initiative is constitutional. Justice Thomas, writing the opinion of the Court in Washington State Grange v. Washington State Republican Party, 128 S.Ct. 184 (2008), held that the initiative “does not on its face severely burden respondents’ associational rights” and that it “is facially constitutional.”

However, the Court indicated that irregular election results could render the initiative unconstitutional as applied if it is found that voters believe candidates listed as members of a given party are the official nominees of that party.  This opening for an “as applied” challenge led opponents of Washington’s top-two system to challenge it again following the state’s August 2008 election, the first election to use the top-two open primary system.

The case is still pending. According to Tony Quinn, the challenge is unlikely to succeed: “There was no sign that anything was amiss. Voters understood the process, voted in a rational manner, and there was no great disruption.”

The Future of Proposition 14

In 2004, California voters had the opportunity to vote on Proposition 62 – the Voter Choice Open Primary Act. In all practical purposes, this Act was identical to Proposition 14 – yet it failed to pass (54%-46%). Despite the identical consequences of these two propositions, there are several differences that may lead to a better fate for Proposition 14. Unlike Proposition 62, which qualified through the citizen signature process, Proposition 14 was put on the ballot by the legislature, which allowed its supporters to write their own, very favorable, title and ballot summary. In 2004, the Legislature intentionally distracted and confused the voters by putting on the ballot Proposition 60, which guaranteed parties the right to nominate their own candidates. Proposition 60, however, appeared earlier on the ballot than Proposition 62 and ultimately passed. So far, no such “poison pill” competing measure has been put on the 2010 ballot.

While in 2004 California voted to keep a closed primary, the political climate in California has since changed and early polls indicate that Proposition 14 will pass comfortably. A 2009 poll conducted by the Public Policy Institute of California shows that 70% of Californians support a shift to an open primary system. If Proposition 14 does pass, it may still be brought to court because of the controversial nature of the issue and the Supreme Court’s limited ruling in the Washington case. But based on its rulings so far in the Washington case, it is unlikely that the Court would invalidate Proposition 14.

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