I. Describing the Top-Two Election System
How does the top-two election system differ from traditional partisan elections?
In June 2010, California’s voters approved Proposition 14 and changed the election procedures for the state legislature, U.S. Congress, and most statewide offices. With this system, any voter can vote for any candidate in the primary; the two candidates with the most votes advance to the general election. The new rules, best described as a nonpartisan top-two election system, went into effect in 2012. Before moving on to the other questions, it is important to understand what this system—sometimes called the “top-two primary,” “open primary,” or “top-two open primary”—does and how it differs from election procedures in other states. The terminology can be confusing. The top-two system affects candidates as well as voters, has consequences for both the primary and general elections, and goes beyond what political scientists typically call an open primary, even though that language is used in the text of the proposition.
Most states use some form of partisan primary, as California did before Proposition 14. Starting more than a century ago, states began adopting direct primaries to provide legal regulation and opportunities for orderly mass participation in major party nominations.[1] In all types of partisan primaries, all of a party’s candidates compete to be the party’s sole representative on the general election ballot; general elections are contests between the nominees of all qualified political parties. The affiliation requirements placed on voters define types of partisan primaries: closed primaries require advance affiliation; semi-closed primaries allow independents to choose their party on election day; and open primaries allow all voters to choose a party on election day.[2] In a partisan open primary, though, once a voter has chosen a party, the voter can only participate in that party’s primary for every office on the ballot and the general election remains a contest between party primary winners.
From the perspective of voters, the top-two election system offers more choice over candidates in the primary election. In the primary, any voter can vote for any candidate, regardless of the party affiliation of either. In California’s 2022 primary, for example, any voter can take the advice of the Los Angeles Times[3] and support Gavin Newsom (a Democrat) for governor and Lanhee Chen (a Republican) for state controller—a vote combination that would have been impossible for any voter under the previous primary system. Furthermore, unaffiliated (called “No Party Preference”) and third-party voters may participate in the elections on an equal footing without additional formal barriers to accessing the ballot. Although in 2010 both major parties did allow unaffiliated voters to participate, this was a choice made by the parties[4] that could be reversed; furthermore, the unaffiliated voters had to request the party ballot.[5] In California, 29% of voters are not registered with the Republican or Democratic parties, and the full inclusion of these voters has the potential to alter the composition of the electorate.[6]
Proposition 14 also introduced a nonpartisan structure for candidate competition, changing not only the choices available to voters but also the meaning of their votes. Voters no longer select the nominees of political parties. In the primary, all candidates have to compete against all other candidates. Since the two candidates with the most votes advance to the general election, the primary winners can be from the same party. These same-party general elections cannot occur with any kind of partisan primary.[7]
Although Proposition 14 emphasized the “right to participate in primary elections,”[8] the potential for same-party general elections means it is best categorized as a nonpartisan top-two election system. One problem is that the term “non-partisan” already has a different official meaning in the context of the state’s local elections (see: “How are local elections different from the elections controlled by Proposition 14?” below). Language emphasizing the “primary” part of the top-two, though, runs the risk of deemphasizing the important general election consequences.
Other states have experimented with nonpartisan elections, and several use variants currently. While sometimes these rules are described as “jungle primaries,” the term is not very descriptive and can be understood as pejorative; all of these alternative systems are nonpartisan in the structure of candidate competition and thus “nonpartisan” is a better neutral term. Washington State adopted a rule similar to the one used in California a few years before Proposition 14. Louisiana has used a variant of this election type, although the schedule is shifted: it holds a general election in November, and then a later runoff if no candidate gets over 50% in the primary.[9] Nebraska’s unicameral legislature is officially nonpartisan, using nonpartisan rules similar to California’s local elections.[10] Alaska is using for the first time in 2022 a top-four primary followed by a ranked-choice general election (“Final Four”), and some advocates would like other states to adopt a similar rule using a top-5 primary (“Final Five”).[11] The use of these alternative systems can provide more information about how, broadly, nonpartisan systems can influence politics. They also serve as reminders that election rules are embedded in states that differ in many ways; an election procedure provides some but not all of the incentives for politics, and even the same election procedure may not have the same results in all states due to these differences.
How does the top-two election system differ from the “blanket primary” we used to have in California?
In 1996, Californians passed Proposition 198 and established a “blanket primary.”[12] Alaska and Washington used similar systems at the time; when the U.S. Supreme Court struck down California’s system as unconstitutional in California Democratic Party v. Jones (2000), each of these states had to seek alternatives.
The blanket primary was a partisan open primary in which voters could switch parties as they moved down the ballot. The structure of candidate competition remained partisan (e.g., there were separate Republican and Democratic primaries for governor) but the limitations on voters were not (a voter could choose to vote in the Democratic primary for governor and the Republican primary for controller). In fact, this is what caused a problem in the U.S. Supreme Court: the election was still determining a party’s nominees while allowing voters explicitly choosing not to affiliate with that party to determine who the nominee would be, over the objection of the political parties.
The top-two system is framed to meet the Court’s requirements: candidates’ party preferences are their personal preferences, not an endorsement from that party.[13] Parties are free to have some other procedure to make endorsements, and those endorsements can appear in the materials provided to each voter. Since the primary no longer chooses the official nominee of a political party, the general election can have two candidates of the same party–an outcome that could not happen under the blanket primary.[14]
How are local elections different from the elections controlled by Proposition 14?
California uses multiple kinds of nonpartisan elections, including for local offices and judicial elections, in addition to the top-two.[15] The existence of different systems that truly can be called nonpartisan, in the same state at the same time, does cause some confusion.
To explain the differences, it is helpful to pose the question: what does it mean for an election to be nonpartisan? One can think about elections as being nonpartisan in three different ways:
- Nonpartisan in limitations placed on voters. Any voter can vote for any candidate.
- Nonpartisan in the structure of candidate competition. All candidates compete against each other, regardless of party.
- Nonpartisan in the information on the ballot. No candidates have party labels attached to their names on the ballot.
Local Elections. California’s local election process, with roots in the Progressive Era,[16] is described in the state’s election laws and ballot materials as “nonpartisan,” and it is nonpartisan in all three ways listed above.[17] (1) Voters can vote for any candidate in the primary. (2) All of the candidates compete against each other in the primary and there is a runoff in the general election between the first and second place candidate if no candidate earns over 50%. (3). Party affiliation does not appear underneath the candidate’s name on the ballot. (Note that this procedure is also used for the statewide office of the Superintendent of Public Instruction.)
Legislative, Congressional, & Statewide Office Elections. The current top-two system is nonpartisan in only two of the three ways, and also advances candidates differently than the local nonpartisan system. As discussed above, it is (1) nonpartisan in the limitations placed on voters because any voter can vote for any candidate and (2) nonpartisan in the structure of candidate competition. One difference in candidate competition between the local election procedure and the top-two is that a general election always occurs for Proposition 14 offices, even if one candidate earned more than 50% in the primary.[18]
The most significant difference is that the elections for State Assembly, State Senate, U.S. Congress, and the statewide offices are not, (3), nonpartisan in their information. This matters because the information on the ballot provides a cue for voters about the candidates; in the primary election, and in most general elections (most feature one Republican and one Democrat), these party cues help voters understand their choice.[19] These party cues remain in same-party general elections, although they are no longer informative since both candidates come from the same party. There is a developing scholarly literature on what cues voters use instead, including candidate ethnicity[20] and gender.[21] Voters are also more likely to turn to Google to search for information about the candidates when the party does not provide a cue.[22]
Does California still use partisan ballots for presidential primaries?
Yes. Proposition 14 did not change the procedures for presidential primaries. Presidential nominations involve states selecting delegates to national party conventions; it is not possible to extend the top-two system to presidential primaries.
California retains a party-option semi-closed partisan presidential primary. That means each party can decide whether it wants to allow NPP (“No Party Preference”) voters to participate. In 2020, the Democratic Party allowed NPP participation while the Republican Party did not.
Presidential nominations are not the only remaining partisan elections in the state: the others are for party central committees.[23] Since 2012, these central committee elections have also taken place every four years, instead of every two years, coinciding with the presidential election.[24]
[1] See Alan Ware, The American Direct Primary: Party Institutionalization and Transformation in the North (New York: Cambridge University Press, 2002).
[2] This classification system comes from a key paper in this field: Elisabeth R. Gerber and Rebecca B. Morton, “Primary Election Systems and Representation,” Journal of Law, Economics, & Organization 14, no. 2 (1998): 304–24; for further development, see Kristin Kanthak and Rebecca Morton, “The Effects of Electoral Rules on Congressional Primaries,” in Congressional Primaries and the Politics of Representation, ed. Peter F. Galderisi, Marni Ezra, and Michael Lyons (Lanham, Maryland: Rowman & Littlefield, 2001), 116–31; Eric McGhee et al., “A Primary Cause of Partisanship? Nomination Systems and Legislator Ideology,” American Journal of Political Science 58, no. 2 (2014): 337–51, https://doi.org/10.1111/ajps.12070.
[3] “L.A. Times Electoral Endorsements for 2022,” Los Angeles Times, April 27, 2022, https://tinyurl.com/djj7aree.
[4] The history of which parties permitted unaffiliated participation is available at California Secretary of State, “History of Political Parties That Have Adopted Party Rules Regarding No Party Preference,” accessed May 29, 2022, https://www.sos.ca.gov/elections/political-parties/no-party-preference/history-political-parties-have-adopted-party-rules-regarding-no-party-preference-voters.
[5] As voters in California increasingly vote by mail, it becomes more difficult to administer these kinds of elections as a practical matter.
[6] From the 60-day report of registration in California see California Secretary of State, “Report of Registration April 8, 2022,” accessed May 30, 2022, https://www.sos.ca.gov/elections/report-registration/60day-primary-2022.
[7] In partisan primary systems, the workaround to this problem often involves candidates leaving their parties and running as independents, as former Republican Evan McMullin is doing in Utah against incumbent Republican Mike Lee in 2022. In rare cases, in states without “sore loser” laws, a candidate defeated in a party primary will find an alternative route to the ballot (former Senator Joe Lieberman did this in Connecticut in 2006 after losing in the Democratic primary; Senator Lisa Murkowski won an election as a write-in candidate in Alaska after losing her Republican primary). These are very unusual exceptions, though.
[8] California Secretary of State, “Official Voter Information Guide: California Statewide Direct Primary Election, Tuesday, June 8, 2010” (California Secretary of State, Elections Division, 2010), https://vig.cdn.sos.ca.gov/2010/primary/pdf/english/complete-vig.pdf.
[9] This year, Louisiana’s runoff election is scheduled for December 10.
[10] For a paper on Nebraska, see Seth Masket and Boris Shor, “Polarization without Parties: Term Limits and Legislative Partisanship in Nebraska’s Unicameral Legislature,” State Politics & Policy Quarterly 15, no. 1 (2015): 67–90.
[11] The Final Five proposal is associated with Katherine Gehl and the Institute for Political Innovation: https://political-innovation.org/final-five-voting/.
[12] For an excellent review of the blanket primary, see Bruce E. Cain and Elisabeth R. Gerber, eds., Voting at the Political Fault Line: California’s Experiment with the Blanket Primary (Berkeley: University of California Press, 2002).
[13] California Secretary of State, “Voter-Nominated Offices Information,” accessed May 27, 2022, https://www.sos.ca.gov/elections/voter-nominated-offices.
[14] This feature of the top-two explains why it is not useful to refer to the system as a “top-two blanket primary” – the term also causes confusion between the old blanket primary and the top-two system, which have different potential consequences for general elections.
[15]The now-unconstitutional blanket primary, as described above, was only nonpartisan in the first sense: it placed no limitation on voter choice over candidates. It was partisan in both the second and third, though; it was a partisan primary in its structure of competition and, because of that, also partisan in the information provided on the ballot. For those reasons, the old blanket primary is best classified as a variant of an open partisan primary.
[16] Franklin Hichborn, Story of the Session of the California Legislature of 1913 (San Francisco: Press of the James H. Barry Company, 1913), https://ccl.on.worldcat.org/oclc/3041147.
[17] The state’s local election system was once nonpartisan in even one more way: it prohibited parties from issuing endorsements. With that prohibition threatened in the courts in the 1980s, in 1986 Californians approved Proposition 49 to put the rule in the state constitution. Nevertheless, that effort did not hold up in federal court, falling in California Democratic Party v. Lungren (1996). Parties do not always agree on which candidates to endorse in local elections, though; for example, in 2022, the Los Angeles County Democratic Party did not reach the necessary consensus to issue an endorsement in the contentious contest for County Sheriff.
[18] Due both to the passage of time and the different primary and general electorates, some candidates winning more than 50% in the primary are defeated in November. For example, in the 2018 election in California’s 25th Assembly District, Republican Steve Knight won 51.8% of the primary vote; Democrat Katie Hill placed second with 20.7%. In the general election, however, Hill defeated Knight 54.4% to 45.6%.
[19] This addresses an objection to the nonpartisan systems in Nebraska (and earlier Minnesota) in Seth E. Masket, The Inevitable Party: Why Attempts to Kill the Party System Fail and How They Weaken Democracy (New York, NY: Oxford University Press, 2016), 158–62.
[20] Sara Sadhwani and Matthew Mendez, “Candidate Ethnicity and Latino Voting in Co-Partisan Elections,” California Journal of Politics and Policy 10, no. 2 (October 12, 2018), https://doi.org/10.5070/P2CJPP10241253.
[21] Katelyn E. Stauffer and Colin A. Fisk, “Are You My Candidate? Gender, Undervoting, and Vote Choice in Same-Party Matchups,” Politics & Gender, June 10, 2021, 1–30, https://doi.org/10.1017/S1743923X20000677.
[22] Betsy Sinclair and Michael Wray, “Googling the Top Two: Information Search in California’s Top Two Primary,” California Journal of Politics and Policy 7, no. 1 (2015), https://doi.org/10.5070/P2cjpp7125443.
[23] The direct election of party central committees is another legacy of the Progressive Era reforms in California. See Kay Lawson, “Challenging Regulation of Political Parties: The California Case,” Journal of Law & Politics 2, no. 2 (1985): 263–86.
[24] California SB 1272.