Election Hangover: Consequences, Intended and Otherwise

To catch up with something I started to write about just after the California primary on June 8: Our state ballot included an initiative to change the way primary elections are conducted. Up through this election, California primaries worked the way they do in most states: Each party put up candidates for elective offices, and each party’s registered voters went to the polls to decide which of their candidates will go on to the general election.

Under Proposition 14, which passed with a healthy majority among the one-third of registered voters who cast ballots, the exercise changes. Primary voters can now vote for any candidate in any party; and instead of the winner in each party advancing to the general election, now the top two vote-getters, regardless of party, will appear on the general election ballot.

The theory behind this “reform” is the same as the thinking behind an open-primary scheme the state enacted (as Proposition 198) in 1996. First, voters get a more meaningful choice. Second, the top-two system is supposed to empower independent voters (the fastest-growing bloc in the state) and thus moderate the positions taken by party candidates (one article of California’s current conventional wisdom is that extreme partisanship by both parties has crippled the Legislature’s ability or even inclination to govern).

By the way–what happened to Proposition 198, which set up open primaries? Predictably, the major parties didn’t like it. The Democrats sued the state on the grounds the system violated their First Amendment right of freedom of association. In essence, they argued that as groups organized around certain principles and beliefs, they ought to be able to say who represented them in elections and in office; open primaries crippled their ability to express themselves in that manner. The Supreme Court agreed in a 7-2 majority decision written by Associate Justice Antonin Scalia, and the open primary system was thrown out.

Proponents of Proposition 14 say it’s different somehow. Thanks to a similar “top-two” system approved by voters in Washington state, that issue has already been to the Supreme Court once (see Washington State Grange v. Washington State Republican Party) and is likely to begin wending its way through the federal courts again this fall. The Washington Republicans argue that the top-two system also interferes with freedom of association. In California, the chief complaint levied against the system is that it virtually guarantees that the host of small parties that have won the right to appear on statewide ballots–Green, Peace and Freedom, Libertarian, and American Independent, among others–will never place candidates on the general election ballots. Again, that’s something that will likely be fought out in court.

It’s significant that voters keep trying to enact these schemes, though. They seem to be saying they want some sort of change. But do they really want the kind of change the top-two primary will bring? We’ll see, I guess. But for now, it’s possible to get a glimpse of how Prop. 14 would affect some elections in the state. If the initiative had been in effect on June 8, the general election slate for eight races would have changed. In two congressional districts–the 19th and 42nd–the top two vote-getters were Republicans, meaning they, and no one else, would appear on the November ballot; in a third district, the 36th, two Democrats ranked one-two. Five Assembly results would also have ben affected: the 9th, 20th, 28th, 47th, and 50th; in all five instances, the top two vote-getters were Democrats, and they’d be the only ones listed on the November ballot if Prop. 14 were already the law of the land. (Here’s a spreadsheet with the details.)

Now, people will be looking at those results and trying to figure out what they mean in terms of party strategy and voter impact. For instance, maybe parties will discourage large fields that could split votes and thus deny all participants from getting on the November ballot. Less choice in a field of primary candidates doesn’t seem like an enhancement of the democratic experience. Seeing your party simply eliminated from the general election doesn’t seem like a magnet for more voter participation, either.

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