The "Open Primary" Buzz in California

Now that a constitutional amendment for a "top two"/"open primary" for state offices has been introduced in the California assembly, Tom Elias, a columnist and author there, has again weighed in on this issue. As I noted previously, Tom and I had some contact during the campaign for the "open primary" initiative-- Proposition 62-- in 2004.

"... the distinct possibility that by mid-2010 [California voters] will get a crack at another gift, a chance to resume holding open primaries that give moderates in both parties a significant chance at winning high offices."

I think Tom is engaging in some wishful thinking here. The outcome has often been the opposite in Louisiana, which has used its "open primary" since the 1970s. The 1991 runoff for governor, for example, featured a crook and a former Ku Klux Klansman. And, in 1995, now-U. S. senator Mary Landrieu finished third in the governor's race; the runoff was between a white conservative Republican and a black liberal Democrat.

"The possibility that an initiative creating this huge improvement could be on the ballot in June 2010 or sooner got a major boost this fall, when Gov. Arnold Schwarzenegger announced that... 'the next thing is open primaries. ... .'"

I predict that another citizens' initiative will indeed be necessary, as the proposed constitutional amendment will fail in the state assembly.

"Today's system of closed primaries, where registered Democrats can vote only for Democrats and Republicans for Republicans in primary elections..."

In 2008, California's registered independents were able to vote in the Democratic primary for president. And independents had their choice of either the Democratic or the Republican primary for offices other than president. In other words, the Republican presidential primary was the only one which excluded independents.

"... leaders of both major parties hated the so-called 'blanket primary' elections created by the 1996 Proposition 198. That system, which lasted only through two election cycles, saw all candidates [of all parties] listed on every ballot together, with the highest vote-getters in each party matched up in the November [general] election.

"'Should Democrats be allowed to nominate Republicans? No! Should Republicans be allowed to nominate Democrats? No!' went the ballot argument against Proposition 198."

Democrats cannot serve as delegates to Republican nominating conventions, or vice versa. In a 7-2 ruling in 2000, the U. S. Supreme Court agreed with the political parties and struck down California's state-mandated blanket primary (California Democratic Party v. Jones). The state Libertarian and Peace and Freedom parties also joined in this lawsuit, incidentally, so the small parties also disliked the blanket primary.

"[The above] reasoning... is wrong in a state where many districts contain lopsided majorities of one party or the other. For when only party members get to vote in party primaries, the actual majority in a district can be left without representation."

This sounds more like a redistricting issue than a problem with the election system. Again: registered independents in California have their choice of either party's primary in district races; in 2008, independents were only blocked from voting in the Republican presidential primary.

"... the [Supreme Court] justices left alone the longstanding Louisiana [system], which lists all candidates [including independents] together, with the top two vote-getters making the runoff, regardless of party.

"And when Washington state adopted that system early in this decade, the court once again said it's completely constitutional."

There has never been a lawsuit challenging Louisiana's overall system. Washington voters approved the "top two" (a much more accurate term than "open primary") in November 2004, on the same day that 54 percent of California voters rejected Prop. 62. In its March 2008 "top two" ruling, the Supreme Court absolutely did not say that the Washington system is "completely constitutional." The court said that the "top two"-- on its face-- does not violate the political parties' associational rights; the justices also said that, after Washington had used the "top two" once, an "as applied" suit could be brought against it on the associational rights question.

In addition, the parties' suit against the "top two" on other grounds is ongoing, as it is now in federal district court in the Evergreen State.

"[The "top two"/"open primary"] offers all the virtues of the old blanket primary..."

Unlike the blanket primary, the "top two"/"open primary" does not give each party the right to have a candidate in the final election. The "top two" also makes it nearly impossible for independents and small party candidates to reach the runoff and thus to have a chance to be elected.

Voters in the "top two" may indeed choose among all the candidates in the preliminary round, but the price they pay is that they are limited to just two choices in the final, deciding election.[1]

As before, Tom conveniently omits the fact that California voters defeated Prop. 62 in 2004, as it lost in 51 of the state's 58 counties.

It should also be mentioned that nearly two-thirds of Oregon voters last month said "no" to a "top two"/"open primary" ballot measure.

******************************

[1] The system proposed by the California constitutional amendment, like the Louisiana system, would not have a runoff when one candidate got 50-plus percent in the first round. In the Washington "top two," in contrast, there is always a runoff, even if someone gets 50-plus percent in the preliminary round.