Kresky: California's Top Two Primary System, Toward a Stronger Coalition for Political Reform

by Harry Kresky
Counsel to IndependentVoting.org
Posted: December 21, 2010 11:06 AM
Huffington Post

Last week the California Supreme Court refused to issue an injunction blocking the implementation of Proposition 14 in several upcoming special elections. The measure, which won 54% of the vote in a referendum last June, eliminates party primaries in favor of a "top two" system where there is a first round of voting in which all candidates appear on one ballot and all voters participate on equal footing, with the top two vote getters going on to the general election.


Top two was supported by a coalition which included Governor Arnold Schwarzenegger, Lt. Governor Abel Maldonado, the Chamber of Commerce, the AARP, IndependentVoice.org and California Independent Voter Network (CAIVN). They took on and defeated California's political parties, major and minor.
Opponents of top two knew they could not succeed in a direct legal challenge as the U.S. Supreme Court has already upheld the State of Washington's top two system. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008). Instead they identified two peripheral aspects of the new system and tried to parlay that into an argument to take the whole thing down. So far they have been unsuccessful, and while the litigation has not yet been fully concluded, it is unlikely their challenge to top two will prevail.

As in the lead up to the referendum, the third parties have been out front in the effort to stop top two. In the litigation they have questioned the legality of (1) limiting descriptions of party affiliation that can appear on the ballot next to the names of candidates to parties that have achieved official recognition under California laws in effect for decades (Democratic Party , Republican Party, Libertarian Party, Green Party, American Independent Party and Peace & Freedom Party); and (2) eliminating write-in votes in round two. While either of these two complaints could be remedied without overturning the top two, the plaintiffs have asked the Court to ignore the wording of the enabling legislation and existing legal norms to hold that if any aspect of the system is invalid, the entire system must fail.


Allowing write-ins in round two would undermine top two because the explicit purpose of the system is to provide a face off between the top two candidates in the general election, ensuring that the person elected has a majority. However, the U.S. Supreme Court has already held that a state need not allow write-in votes. Burdick v. Takushi, 504 U.S. 428 (1992) So the argument that top two must fail because it precludes write-ins in round two is frivolous. And there is nothing inherent in top two that would prevent write-in candidates in round one.


The issue pertaining to ballot listing is more interesting and complex. Achieving official ballot status requires registering 103,024 voting age Californians into that party or getting 1,030,233 voters to sign a petition. But there are all sorts of political affiliations that either do not meet those requirements or which do not aspire to be political parties. There are good arguments for and against allowing them to be listed on the ballot. To allow any and all such entities to be listed gives the voters more information about a candidate and the candidate greater latitude to express who he or she is; to limit the listing to officially recognized parties permits a voter to confirm that a particular candidate is indeed registered into the party listed on the ballot and, further, that the afflation listed is more than just six guys who meet for Friday night poker and call themselves the "card party." Independent voters who do not like political parties might favor expanding what a candidate can say about their affiliations on the ballot to more than just a party. But the absence of that option at this time is not a reason to strike down Proposition 14. Actually, it's a reason to implement Proposition 14, which will create an environment more favorable to non-party players. Better to revisit the ballot listing issues further down the road.

With the litigation winding down, and special elections run under top two just around the corner, it is time for the minor parties to reconsider their relationship to this important reform. The new electoral terrain opening up in our country's most populous state creates possibilities for independents and minor party members to work together to achieve a fairer and more inclusive electoral process.


Leaders such as Lt. Governor Maldonando, who was recently presented with an Anti-Corruption Award by the New York City Independence Party, are looking to build new alliances--including with independents--that can achieve progress on key issues such as immigration reform.


In this moment of possibility, it is important to remember what independents and minor party members have in common: a recognition that the major parties have too long placed partisan interests over the national interest; a belief that the existing two party arrangement keeps the policy dialogue within too narrow a framework; and a commitment to leveling the electoral playing field.