Will Washington (and California) Cross the Rubicon?

Since 2001, I have followed with great interest the controversy surrounding Washington state's election process.

My state's election system has been a recurring issue here since the 1960s; in fact, Mississippi gave Louisiana the idea for its current system.

Federal court rulings finally forced Washington to adopt a new system. On September 14, 2004, the state used a Montana-style system of separate party primaries. On November 2, however, there will be a proposal, Initiative 872, on the general election ballot for a Louisiana-style "top two" system. (California will have a similar measure, Proposition 62, on the November 2 ballot.)

If the Washington initiative passes, that state's political parties promise to take two actions: Challenge the "top two" system in federal court, and hold conventions to endorse candidates.

Background. The basic function of a political party is nominating candidates for elective office. This was originally done by caucuses at the federal, state, and local levels.

Early on, presidential candidates were nominated by the party caucuses in the U. S. House of Representatives, and later also by state legislatures and mass meetings.

Several of President Andrew Jackson's followers, who detested "King Caucus," conceived the national nominating convention in 1831. (In a caucus or convention system, obviously, grassroots citizens can vote only in the general election.)

In the early 1900s, states began requiring parties to use primary elections. (Webster's New Collegiate Dictionary defines "primary election" as "[a] preliminary election in which voters directly nominate for office the candidates of their own party.[italics added]")

Project Vote Smart says a primary election is "an election prior to the general election in which voters select the candidates who will run on each party's ticket. Primaries are also used to choose convention delegates and party leaders... ."

The word "primary" has been corrupted to mean the first step of almost every election process.

Today, just a few states still use nominating conventions; these states use conventions in some circumstances and primaries in others.

Not only is the primary election an American invention, the United States is the only nation that uses it. In the rest of the democracies, political parties operate essentially as private associations. Party candidates are chosen by party officials, party activists, and the parties' elected officeholders in government. [UPDATE-- 1/16/07: Several parties in several other democracies have begun using versions of primaries.]

Washington State's History. The primary election was enacted in 1907, along with preferential voting. (The latter, similar to what is touted today as "instant runoff voting," was repealed in 1917.)

1916: Voters refused to abolish the primary by a count of 200,449 to 49,370.

1919 challenge law: A voter requesting a party's primary ballot, if challenged, had to promise to support that party's nominees in the general election.

1919, 1921, and 1927: Bills to repeal the primary and restore the nominating convention were introduced in the legislature.

1927: A measure for a system like the Top Two was defeated in the state House of Representatives. In Primary Elections (1928), Charles Merriam and Louise Overacker call this "a most curious proposal. The names of all candidates appeared on the same ... ballot under the office for which [election] was sought. ... The names of the candidates who were first and second in number of votes ... were to appear on the [runoff] ballot."

Note: In a special referendum in October of 1915, California voters rejected a proposal for a system like the Top Two. North Dakota voters defeated a similar measure in 1925.

1936: Washington began using the blanket primary. All candidates were listed on the same ballot, with the top vote-getter from each party advancing to the general election. This was the primary system that was recently struck down by the federal courts.

Montana System (open primary, private choice: Montana, Washington, Hawaii, Idaho, Michigan, Minnesota, North Dakota, Vermont, and Wisconsin). There is no voter registration by party, and the voter picks a party on primary day. No record is made of the voter's party choice.

Open Primary, Public Record (Alabama, Arkansas, Georgia, Illinois, Indiana, Iowa, Mississippi, Missouri, Ohio, South Carolina, Tennessee, Texas, and Virginia). This is like the Montana system, except that each voter's party choice is publicly recorded.

Note: Iowa is the only one of these states that does have voter registration by party.

What's the big deal about the parties' knowing which voters nominate their candidates? Keeping primary voters' party choices secret is a lot like having convention delegates wear disguises. (Personally, I would go for either a Zorro or a Batman costume.)

Note-- 1/16/07: There are now two federal lawsuits against open-primary laws. These are Miller v. Brown (in Virginia) and Mississippi Democratic Party v. Barbour.

Closed Primary (now 27 states, including California). This requires voter registration by party. In a number of these states, registered independents can vote only in the general election. California independents, however, may vote in either the Democratic or the Republican primary for congressional and state offices.

Note: For a description of Alaska's hybrid primary system, see www.ballot-access.org/2004/0801.html#11. [Alaska has since changed its system.]

In one of these states, Utah, the Democrats invite all voters (even registered Republicans!) to participate in their primary.

Louisiana System. All candidates, including independents, run in the same election. If no one gets a majority (50%-plus), the top two, regardless of party, meet in a runoff.

The Louisiana system is an extension of the old one-party (truly no-party) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary.

In every state but Louisiana, each party has the right to nominate one candidate for every partisan office. And there is no limit on the number of independents who can run for each office in the general election.

Isn't it better for the voters to have more than two choices in the final, deciding election?

Louisiana has had party registration since 1916; it has used its current election system since 1975. Circa 2002, there were 23 percent registered Republicans. But if everyone votes (and all candidates run) in the same election, what difference does it make? Everybody might just as well be an independent.

Let's look at some actual Louisiana elections.

1987 governor's race: The top two vote-getters were both Democrats.

1990 U. S. Senate race: The Republicans backed Ben Bagert. Ex-Klansman David Duke also ran as a Republican. Embarrassed by the Duke candidacy, the GOP wanted to avoid a runoff at all costs. His campaign going nowhere, Bagert dropped out shortly before the election, and the Republican leadership wound up supporting the incumbent Democrat!

1991 governor's race: The national Republicans and the state Republican Party supported different candidates, neither of whom made the runoff. The final choice was the Republican Duke versus ex-Gov. Edwin Edwards, who had already been tried for bribery. President Bush I and the incumbent Republican governor endorsed the Democrat Edwards, who won with 61%.

1995 governor's race: The runoff featured a white conservative Republican and a black liberal Democrat. The Republican, Mike Foster, won going away. (Now-U. S. Sen. Mary Landrieu had finished third.)

It's very unlikely that either Duke in 1991 or the Democratic runoff candidate in 1995 could have won a party primary. I chuckle every time I read about Washington and California proponents of this system claiming that it will help more "centrists" or "moderates" get elected.

2002 U. S. Senate race: The national Republicans backed Suzanne Terrell, while Gov. Foster endorsed another Republican. Foster publicly criticized Terrell after she had made the runoff against Democratic Sen. Landrieu. (In November 2004, David Vitter became Louisiana's first popularly-elected Republican U. S. senator in history.)

The Democrat Rodney Alexander was narrowly elected to the U. S. House in 2002. In August 2004, he qualified to run again as a Democrat. Two days later, and just a few minutes before the deadline, he re-filed, this time as a Republican! It was, of course, too late for the Democrats to come up with a major candidate.

In a state with party primaries, where a party-affiliated candidate must qualify with his party, a politician cannot pull this kind of shenanigan.

The party primary has been a major factor in the growth of the Republican Party in the South. Over the years, I have been astonished to hear staunch Mississippi Republicans calling for our state to adopt the Louisiana system-- in which there are no party primaries. That's like chickens inviting Colonel Sanders into the henhouse.

The two federal court rulings on the Louisiana system are Dart v. Brown and Foster v. Love; neither suit challenged the overall system. For more on these decisions, see the note at the end of this essay.

For more on the Louisiana system, see my article of September 20, 2005 on this blog.

"Top Two" System (Washington's Initiative 872 and California's Proposition 62). This works like the Louisiana system, except that there is always a runoff-- even if one candidate gets 50%-plus in the first round. Thus, it's possible for the first-round winner to be defeated in the runoff.

The two rounds in the Louisiana/Top Two are commonly called the "primary" and the general election. Actually, the first round is the general election, followed by a runoff general election. I submit that a candidate who gets 50%-plus in a general election should not then be forced to enter a runoff.

In a general election: All the candidates are on a single ballot, and voters can vote for any candidate for any office. This means that the campaign costs more than a party primary race, since a candidate has to communicate with all the voters. Hence, the Louisiana/Top Two requires the top two vote-getters to finance and conduct two general election campaigns. This discourages potential candidates from running. (In Louisiana, of course, a candidate who gets 50%-plus in the first round does not face a second campaign.)

Consider independent candidates. In a party-primary system, they reach the general election ballot by getting signatures on petitions, and that's the only campaign they have to wage.

In the Louisiana/Top Two, in contrast, independents are on the first-round ballot along with all the other candidates. If lightning strikes and an independent makes the runoff, he then faces a second general election campaign.

Consider small-party candidates. In a party-primary system: Since small parties often have trouble finding even one candidate per office, their candidates usually just have to run in the general election. (In my state, none of the six small parties have ever had a contested primary.) In the Louisiana/Top Two, small-party candidates encounter the same situation as independents.

If a small party's message is kept out of the final election, the party loses its main reason for existing.

Isn't it ironic that so many Washingtonians, who cherish their independence, favor the Top Two-- which makes it even harder for independents and small-party candidates to get elected?

When the two runoff candidates are from the same party: Not only is that party split, all the other parties' faithful voters are effectively disenfranchised.

A citizen certainly has the right to be an independent. But a citizen does not have the right to force all of his fellow citizens to be independents-- and that's essentially what the Louisiana/Top Two does.

If the Louisiana/Top Two is such a good idea, why is it that only one state uses it?

Note: Louisiana is the only state that uses the "top two" to elect all of its state officials. And Louisiana, which alone has used the "top two" for its congressional elections, is restoring party primaries for those elections, starting in 2008.

1/16/07: Last year, the 9th U. S. Circuit Court of Appeals struck down Washington state's "top two"-- which the voters had approved in November 2004. The state has appealed State v. Washington State Republican Party to the U. S. Supreme Court.

Conclusion. Political parties deserve to be able to perform their basic function of nominating candidates. The party primary is the most democratic method of nomination, and the Montana system provides the most open party-primary system.

The choice between a party-primary system and the Louisiana/Top Two is a choice between a party system and a no-party system.

I submit that a party system is superior.

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www.nwprogressive.org/Special/Primary/

Note: Dart v. Brown, 717 F. 2nd 1491 (5th Cir. 1983), cert. denied, 469 U. S. 825 (1984) is available from FindLaw and Westlaw.

Foster v. Love is available at: http://supct.law.cornell.edu/supct/html/96-670.ZO.html

[The posts on this blog of the following dates are related to this topic: February 28, 2006; November 23, 2004; and September 20, 2005.]