Friday, February 26, 2010

Why Independents Support Open Primaries

by Harry Kresky

Thank you for the opportunity to respond to Richard Winger’s statement, “Why Independents are Better Off With More than Two Choices on the November Ballot.”

Most of us share Richard’s desire for a politics in which new ideas take priority over political careers. The issue is how to achieve this. He thinks the answer is to protect the status of minor parties on the grounds that they drive new ideas and social change into the mainstream. But the role of third parties as incubators of political change is limited. History demonstrates that social movements which impact the major parties are more effective in producing sweeping change than third parties. One recent example is the civil rights gains of the sixties which came about through a mass movement that forced the major parties to take long overdue measures to redress employment and other forms of discrimination. It also forced Congress to pass the Voting Rights Act which provided an effective remedy against persistent efforts to deny African-Americans in the South full access to the ballot. Third parties played little if any role in these accomplishments.

Americans don’t look to the third parties as instruments for reform, in no small part because they don’t like parties, major or minor. And they don’t like partisanship. Some minor parties without the pressures of “big tent” coalitions, have become even more calcified and rigidly ideological than the major parties. And while minor parties’ share of the electorate is shrinking, that of independents is growing. In California, the percent of the electorate enrolled in minor parties fell from 5.2 percent in 2001 to 4.4 percent in 2009. The percent registered independent grew from 14.4 percent to 20 percent.

“Top-two” is an important step towards non-partisan governance. It does away with party primaries altogether.  If the Proposition 14 initiative passes, all voters vote in a first round in which all candidates are listed on the ballot with their party preference next to their name, and the top two go on to the general election which is also open to all voters. Voters will be voting for candidates, not parties, and there is a real opportunity for building coalitions of independents and party members in support of reform-oriented candidates who place the interests of their state and country before that of any party. For those concerned with party building – major or minor – having effective spokespersons in the first round will help parties enlarge their base.

A key issue for independents is full participation in every phase of the electoral process. Top-two is a way to achieve that. Under the current system in California, each party holds its own primary election, and only members of that party have a right to participate. That means that 3,466,855 registered voters in California are not guaranteed the right to participate because they have elected not to register into a political party. They can only vote when a party allows them in its primary. They are not guaranteed a say in who appears on the general election ballot. Passage of Proposition 14 will give all voters the right to participate in every phase of the electoral process.

In 1996 the State of California had adopted by referendum an open primary system in which each party, major and minor, had its candidate on the general election ballot. However, the minor parties joined with the Democrats and Republicans in a lawsuit, Democratic Party, et al. v. Jones, 530 U.S. 567 (2000), which invalidated that system on the claim by the parties that it permitted people who were not members of a party to vote in its primary. Passage of Proposition 14 will achieve full participation by the means that are legally available. The State of Washington’s top-two system, on which Proposition 14 is modeled, was upheld by the U.S. Supreme Court in Wash. State Grange v. Wash. State Republican Party, 128 S.Ct. 1184 (2008).

Third parties do, of course, provide voters with more choice. Proposition 14 will not deny them that. Candidates of all parties will be on the ballot in round one. American voters, pragmatists that they are, are more likely to express support for a third party candidate in the first round, where the outcome does not send the winner to Washington or Sacramento. As things stand now, while the minor parties are assured a place on the ballot in the general election, they remain largely marginalized by the small percentage of the vote they receive.

As Richard notes, third parties have been unable to gain access to the presidential debates or obtain significant coverage for their candidates. This is so despite their having a place on the general election ballot in California and most states. Improvements in this regard will surely not come from maintaining the status quo. Top-two shakes up the existing partisan arrangements. It is a system under which voters focus more on candidates than parties. And it will bring with it new arguments for media coverage and debate inclusion, just as it will bring new opportunities for voter- driven electoral coalitions that can impact on the political mainstream.

Harry Kresky
website: harrykreskylaw.com


Harry Kresky is counsel to IndependentVoting.org, and the City organizations of the New York Independence Party. In 2002 he was appointed by Mayor Michael Bloomberg to serve on New York City's Charter Revision Commission and is representing independent voters in a precedent-setting case defending open primaries in Idaho. 

4 comments:

richardwinger said...

It is not the whole truth that the US Supreme Court upheld the "top-two" Washington system. First, the Court said in Footnote Eleven that it was not considering the arguments that the system violates the ballot access precedents. The lower courts hadn't considered it either.

Second, the US Supreme Court said it was only upholding the law as to Freedom of Association on its face, and suggested an as-allied challenge might bring different results.

harrykres said...

Justice Thomas concluded his majority opinion upholding “top two” as follows:

“Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. Immediately after implementing regulations were enacted, respondents obtained a permanent injunction against the enforcement of I-872. The First Amendment does not require **1196 this extraordinary and precipitous nullification of the will of the people. Because I-872 does not on its face provide for *459 the nomination of candidates or compel political parties to associate with or endorse candidates, and because there is no basis in this facial challenge for presuming that candidates' party-preference designations will confuse voters, I-872 does not on its face severely burden respondents' associational rights. We accordingly hold that I-872 is facially constitutional. The judgment of the Court of Appeals is reversed.”

Bob Richard said...

(1) Harry Kresky's response to Richard Winger in fact proves Winger's point by its repeated use of the word "facial". What was decided in the Grange case was a facial challenge to the Washington version of the blanket primary. An as-applied challenge is working its way through the courts.

(2) Kresky also omits any mention of the provision of Prop. 14 that would make it much more difficult for small parties to stay ballot-qualified. If this is implemented, two of the four existing small parties would be disqualified in 2014. They can try to increase their registration before then, but Prop. 14 would also reduce the incentive anyone has to register as a member of any party, big or small.

(3) Kresky also omits any mention of the provision that bans write-in candidates in the second round. Even if one of the two finalists is proven to be a crook after the first round, voters have no other choices.

Steve Rankin said...

Washington state's "top two" is facing a trial in US district court next October.

If the "top two" (aka "open primary") is such a great idea, why is it that only two states-- Washington and Louisiana-- use it to elect all of their state officials? And Washington alone uses it to elect its congressional delegation.

In 2004, California voters defeated the "top two open primary," as it lost in 51 of the state's 58 counties. Most recently, in November 2008, just under 66% of Oregon voters rejected the "top two open primary."

Why should the voters be limited to just two choices in the final, deciding election?