Monday, January 10, 2011

Understanding Prop 14: It's Not About Ballot Access

By Harry Kresky

In a December 30, 2010 post on his Ballot Access News, Libertarian Richard Winger attacks “leaders of the former New Alliance Party,” for abandoning their commitment to ballot access reform . The “former leaders” are Jacqueline Salit, Lenora Fulani, Cathy Stewart and I, who have been in the forefront of the effort to bring nonpartisan elections, commonly called “Top Two,” to states and municipalities around the country.

Top Two eliminates party primaries in favor of a system where there is a first round of voting in which all candidates appear on one ballot and all voters participate on an equal footing, with the top two vote getters going on to the general election.  This past June California voters adopted a Top Two system by referendum over the vehement opposition of the major and minor parties. Mr. Winger played a leading role in the opposition.
Prop 14 Victory Coalition

While we disagree with Richard, and still do, on the merits of Top Two, throughout the process we have been and remain willing to work with him on insuring that ballot access and ballot status rules under Top Two were friendly to minor parties.   In a December 21, 2010 article on Huffington Post, I wrote:

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.
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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.

    The simple fact is this. Top Two is not a ballot access issue. Ballot access is about the opportunity to participate as a candidate in the nominating process. We have and continue to work for ballot access reform, Richard knows this. In fact, in the August 3, 2010 online edition of Ballot Access News he wrote favorably about a reform proposal that I authored being adopted by the Association of the Bar of the City of New York in support of a filing fee alternative to New York’s onerous ballot access laws.

    A Top Two system can have lenient ballot access requirements –making it easer for candidates to participate – or stringent ones. However, the general election run off in which the top two primary vote getters compete to determine who is elected to public office, means that the parties lose the right to be sure that their candidates are on the ballot in the second round of voting. This goes to the structure of our electoral process, not the rules for ballot access. It is an issue of how our elections are conducted. We favor easy access to the ballot in round one. We do not, however, favor giving special rights to political parties so that their candidates make it to round two no matter the level of support they have from voters.

    The December 30 post provoked a lively dialogue. There are 68 comments so far, more than the usual 0 to 5. Among those is this thoughtful statement by William J. Kelleher, Ph.D.:

“Out of respect for your knowledge, I won’t dispute what you say about the experiences in other states, such as LA and WA. But I will say this: the only thing that can prevent CA activists from realizing the possibilities given them by Prop 14 is their own concepts and attitudes. If all the activists read this blog and say “Oh shit! Look what we have lost. Nothing can be done,” then guess what? Nothing will be done.
“In your third paragraph you seem to set up this argument: because 3d party candidates now have to pay a [nominal ($950)] filing fee, participation in elections is “far more difficult;” indeed, primaries for them have been “shut down.”
“My message to activists is very different from yours. In my view, Prop 14 has delivered us to Libertarian Heaven.

“From my POV, understanding the gift of Prop 14 requires a re-conceptualization of the old idea of “party.” Putting presidential elections and state wide elections aside, most CA elections are for state Senate and Assembly. Therefore, for these elections, the idea of “party” should be the party-in-the-district (P/D), and not the party-in-the-state (P/S). Every P/D can have its own candidate, because ballot access is open to all. Activists in each district can evaluate what is possible for them. They can do the traditional political activities of organizing and selecting their candidate in their district. There are many tactical possibilities for combining forces and beating major party candidates. The competition is open to all. These activities can be free of control by the central P/S organization; but that does not make the activities “whimsical.”
“The party-in-the-state can still exist for such things as fundraising and defining their ideal agenda. The P/S can allocate resources and volunteers to districts with winning potential. They can abandon districts with little or no potential.”

Harry Kresky is Counsel to


richardwinger said...

In a typical non-partisan election system, the first round IS an election. A 2nd round is only held when no one gets a majority, and most of the time, there is no 2nd round. The reference to New York city's proposal (above) for non-partisan elections ought to note this.

A top-two system for state and local elections, and in which the first round WAS an election, would be fine. Harry has never acknowledged the point that we have a federal law requiring states to hold congressional elections in November. November is when the turnout is high and voters are most interested in the campaign. Leaving minor parties out of the November campaign season is like telling same-sex couples that they can be domestic partners but can't get married to each other. The September-October-November campaign season for congressional and presidential elections is like marriage. There is no substitute. In reality, as shown by Louisiana and Washington, a top-two system eliminates minor party members from the 2nd round, if there are at least 2 major party members running. My declaration in the Washington state case examined all 775 instances and found only two exceptions. Harry has never mentioned that evidence.

I wish Harry would make a comment about each of these particular problems with California's top-two: (1) is it good or bad that write-ins can no longer be counted in November? (2) is it good or bad that independent candidates can no longer have "independent" on the ballot next to their name? (3) is it good or bad that some party members can have a party label on the ballot, but others can't? (4) is it good or bad that Prop. 14 throws the Peace & Freedom, and Libertarian Parties, off the ballot for President? (5) is it good, or bad, that the number of signatures in lieu of the filing fee has increased from 150 signatures (for members of qualified minor parties) to 10,000 for statewide office, 3,000 for State Senate and US House, and 1,500 for Assembly?

Solomon Kleinsmith said...

I don't agree with everything Richard had to say in his post, as I'm certain that, Nancy Hanks and the whole crew on New York Indies in fact do think they're doing the right thing... I just think they're very very wrong.

And with all due respect Harry, you don't get to decide what the issue is about. It might not be about ballot access TO YOU, but it IS about ballot access to a lot of other people.

Whether you want to admit it or not, you're throwing minor parties under the bus by supporting top two. Not only this, but its insanely hypocritical given that independents like you have been (rightfully) complaining about the two major parties strongarming independents out of the process for years. Now you're doing the same damn thing to minor party groups... you should be ashamed.

There is no reason what so ever why top two has to be tied with open primaries, and top two systems do not necessarily give independents any more say in the process. Open primaries are clearly something we can all get behind, but adding the top two system to it cedes the moral high ground independents used to have on the issue, by using the power we're finally starting to build to muscle out the little guys, and is likely to just end up blocking independents from the general ballot as well.