by Tom Intorcio
On June 8, 54 percent of California's voters approved Proposition 14 to adopt a top two primary. Forty-six percent opposed the measure. It was referred to the ballot by the Legislature and proposed converting the state's partially closed primary to a model patterned after Washington's top two primary. Under the current, partially closed primary system, separate ballots are prepared for each political party. Voters select candidates from their own party's ballot, and the winning candidates are nominated onto the general election ballot. Parties determine whether unaffiliated voters may participate in their primary contests. California is one of 14 states that scheduled a partially closed primary in 2010.
Proposition 14 will move California to a top two primary effective January 1, 2011. Aside from Washington, only Louisiana currently uses this type of primary in partisan legislative elections. In a top two primary, all candidates, regardless of their party affiliation, appear on a single, consolidated ballot. Candidates have the option to add their party "preference" to their name on the ballot, or may decline to state a party preference. Voters may then vote for any candidate, regardless of the voter's and candidate's political party affiliation. The two candidates receiving the most votes advance to the general election. Unlike Washington's version, the new California law does not allow any write-in votes. Partially closed primaries will continue for presidential candidates and party organization offices.
The top two legislative referendum was sponsored by former senator and newly appointed Lieutenant Governor Abel Maldonado. California's Democratic legislative majority backed the referendum as a concession for then-senator Maldonado's vote in support of Governor Schwarzenegger's 2009 budget compromise. The governor campaigned heavily for Proposition 14, with key support from an atypical coalition of reform activists and business groups. U.S. House Speaker Pelosi, a California Democrat, urged Californians to reject the measure as did leaders of the state's two major parties. She argued that the measure would distort the political process. Californians rejected a similar proposition in 2004.
Supporters of Proposition 14 argued that the top two will help so-called moderate candidates with cross-over appeal, like Governor Schwarzenegger, who would otherwise have a hard time making it onto the general election ballot. The governor personally argued that the more "open" system would benefit moderate candidates like him. In the 2003 recall election that catapulted him into the governor's mansion, Governor Schwarzenegger ran against 134 candidates, all on the same Oct. 7 special ballot, regardless of party affiliation. He won with 49% of the vote. The next highest finisher was then-Lieutenant Governor and former Assembly Speaker Cruz Bustamante (D) with 32%.
In the top two, all candidates need to appeal to the entire electorate from the start of their campaigns. In strongly Democratic or Republican districts, two candidates from the same party are likely to face off in the general election. In this way, the top two actually operates very differently from a primary to determine which candidate will represent a political party for a given office in the general election. Opponents argue that the top two is more analogous to a general election than a primary because the parties are effectively removed from being able to nominate their standard bearers. Moreover, the general election operates much like a runoff —again, often between two candidates of the same party. They also maintain that the top two severely discriminates against minority party ballot access. In many districts that lean heavily for one major party, it will be very difficult, they say, for a minor party candidate to advance to the general election.
Recently, two other states have examined proposals involving the top two. In 2008, voters in Oregon voters rejected a ballot initiative similar to Proposition 14 by a nearly 2:1 margin. In Louisiana this year, however, the legislature recently approved and the governor signed House Bill 292 to expand its top two "Cajun" primary to include congressional elections.
[The only other state that has a track record with the top two is Nebraska. As the nation's only unicameral legislature, Nebraska holds a top two primary for its non-partisan state senate races. Conversely, in congressional races, Nebraskans vote in a partially closed primary in which unaffiliated voters may request either a Democratic or Republican primary ballot. The Democratic and Republican parties are the only statewide recognized parties.]
Does the top two actually foster more competitive elections? In short, the jury is still out. As noted in these pages, research in Washington shows "little evidence that Proposition 14's proponents promises of increased turnout and more moderate officeholders will pan out." However, Peter Callaghan, a longtime reporter for the The News Tribune (Takoma) maintains that it has resulted in an increase in the number of contested primaries in both legislative and congressional races since the state switched from an open primary in 2008.
Will the top two gain more adherents in the next decade? California's 2012 top two election and the effects it has on a state with 120 legislative districts and 53 congressional districts may hold the answer. To read more about Proposition 14 or to see NCSL's State Primary Systems Table covering how other states conduct their primaries visit ncsl.org.
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