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Free Citizen

This writer espouses individual liberty, free markets, and limited government.

Location: Jackson, Mississippi, United States

Sunday, May 25, 2008

"Open Primary" Noise In California

Tom Elias, a California writer, has published a piece calling for an "open primary" for his state. In 2004, during the Proposition 62-- "open primary"-- campaign in the Golden State, Tom and I had some correspondence.

"Open primary" is a popular moniker for nonpartisan elections, in which there are no party primaries. All candidates, including independents, are listed on a single ballot, and the top two vote-getters, regardless of party, proceed to the runoff.

Tom says, "Even though the state Democratic Party allows registered independents to vote in its primaries, Republicans right now do not."

That was true of California's February 5 presidential primaries, but independents will have their choice of either party's ballot in the June 3 primaries for offices other than president.

"It's clear that voters dislike the current... party-line voting... . The one time voters had their say on this issue, in March 1996, they opted by a 56-44 percent yes vote on Proposition 198 to set up... "blanket" primary elections.

"Under this system, which applied for four years, all candidates in any primary were listed together on all ballots, with all voters able to cast ballots for whoever they wished, regardless of their own party affiliations or the candidates'. The leading vote-getters in each party made it onto the November [general election] ballot."

Tom is being disingenuous here, since he well knows that 54 percent of California voters opposed Prop. 62 in November 2004, as this "open primary" initiative carried just seven of the state's 58 counties. Many people clearly did not like the possibility of the two final candidates being from the same party.

California conducted blanket primaries in 1998 and 2000, before the U. S. Supreme Court struck down that system. That ruling is the main precedent, incidentally, for the Mississippi Democrats' lawsuit against our primary election law, which is now pending in the 5th U. S. Circuit Court of Appeals in New Orleans.

"That [blanket primary] ruling also applied to similar systems in other states, like Washington and Maine."

Maine has closed primaries, but Washington had indeed used a state-mandated blanket primary since the mid-1930s, which it continued until the federal courts ruled against it in a separate 2004 case. That decision gave impetus to Washington voters' approval-- on the same day that California voters rejected it-- of a Louisiana-style "top two" election system, which the Evergreen State will use for the first time this year ("top two" is a better term for nonpartisan elections than "open primary").

Alaska was the other state with a state-mandated blanket primary. The Democrats and minor parties there have since voluntarily established a blanket primary, but the Republicans have a separate ballot which is offered to registered independents (the Democratic/minor party ballot is available to any voter, which explains why some 60 percent of Alaska's voters are registered independents).

"[The Washington "top two"] system sets up a race between the two overall [first-round] leaders, regardless of party, unless one gets [50-plus percent].

"That may not sound like a big difference, but it certainly mattered to the [U. S.] Supreme Court, which this spring okayed the Washington system by a 7-2 vote."

Washington-- unlike Louisiana-- will always have a runoff, even if one candidate gets 50-plus percent in the first round. The plan put forth under California's 2004 Prop. 62 was the same as Washington's "top two" in this respect.

The Supreme Court said that Washington could use the "top two" once before an "as-applied" lawsuit could be brought against it, and that is expected next year. There is also a number of other grounds on which the Washington system may be challenged.

"Immediately, there was strong sentiment for an initiative to set up the same system in California."

Really? Tom doesn't furnish any evidence of such sentiment, so we are left to take his word for it.

"But this time, again as in 1996, moderate business groups like the California Business Roundtable will back the plan. And so will the voters, if they get the chance."

On the other hand, the voters may again reject the "open primary," just as they did in 2004.

Tom is evidently not aware of the "open primary" movement in Oregon, as he makes no mention of it.

Like most enthusiasts for nonpartisan elections, Tom has little use for political parties. He told me that he didn't mind the existence of national parties, but that he saw no need for parties at the state level!

It's worth noting that California has had nonpartisan elections ("open primaries") for its county and municipal officials for nearly 100 years. When first given the chance to adopt such a process for higher offices, the state's voters said "no" in 1915.

We could provide greater choice for Mississippi voters by eliminating party primaries for our county and municipal officials and electing them instead on a nonpartisan basis.


Anonymous jimrtex said...

When California considered a Top 2 primary in 2004, opponents claimed that Washington state had recently rejected such a plan. In fact, the governor at that time, Gary Locke, had vetoed legislation that the legislature had passed. The day after Locke's April 1st, 2004 veto, the Washington Grange started circulating its initiative for a Top 2 primary which Washington voters approved by a 60% margin.

It would be like saying that California and Vermont had recently rejected National Popular Vote for the President since the governors vetoed bills that had passed the legislature.

California voters may have also been confused by an alternative proposition put forward by the California legislature.

The California Democratic Party v Jones may have little relevance to the current litigation in Mississippi. First, it was a dissenting opinion by Justice Stevens that said that the case might mean that open primaries would be in jeopardy. Second, in the followup case to Jones for the Washington blanket primary, the 9th Circuit ruled that Washington was not materially different than California, even though California had party registration and Washington did not. In effect, the court ruled that people in Washington thought of themselves as Democrats or Republicans, even though Washington had no record of that; and then in the blanket primary they might cross over to vote for the nomination of the other party in specific races, just as they had in California.

But in a conventional primary, it is rather ludicrous to assume that someone would go to the polls thinking they were a Republican and then vote in the Democratic primary.

If there are Republican-minded voters who will vote in the Democratic primary in an open primary, what is to stop a Republican-minded voter registering and voting as a Democrat in a closed-primary State? Are the election officials going to spy on him and see whether he watches CNN or Fox News?

Mon May 26, 11:17:00 PM CDT  
Blogger Steve Rankin said...

I followed California's 2004 "open primary" campaign quite closely, and I don't recall Washington state being mentioned. California has multiple small parties, and their representatives made many media appearances opposing Prop. 62. They noted that, in the "open primary"/"top two", small party candidates almost never survive the first round of voting.

The two major parties also actively fought Prop. 62.

Richard Winger, publisher of Ballot Access News, says the legislature's initiative had little to do with the defeat of Prop. 62.

Besides Gov. Schwarzenegger, other prominent supporters of Prop. 62 were ex-Gov. Pete Wilson, ex-L. A. mayor Richard Riordan, Leon Panetta, and Sen. John McCain.

Arizona had semi-closed primaries, in which independents could vote in the primary of their choice. But party registrants had to stick with their own parties' primaries.

McCain wrote a pro-Prop. 62 piece, in which he made it sound like the "open primary"/"top two" was the same as Arizona's system. He said, "The open primary has worked well in Arizona."

The reasoning from the Jones ruling also applies to a party-primary system like Mississippi and 20 other states now use, which is why the MS Democrats refer to it often in their lawsuit against our primary law. E.g., the Jones ruling says that parties have "... the freedom to identify the people who constitute the association, and to limit the association to those people only."

"Ludicrous"? I know of lots of instances in which known MS Republicans-- even GOP leaders-- have voted in Democratic primaries. And a few years ago, a Democratic state legislator voted in a Republican primary for federal offices.

What you noted in your last paragraph does indeed happen, JimR. The difference is that, when there is party registration, such a voter has actually signed a statement affiliating with the party.

Tue May 27, 12:26:00 AM CDT  

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