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Free Citizen

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

Location: Jackson, Mississippi, United States

Thursday, December 18, 2008

"Open Primary" Introduced In California

The people of every state where there has been a ballot proposition for a "top two"/"open primary" system for all state elections-- or state and congressional elections-- have voted it down, except for Washington state. In this system, to be sure, there are no party primaries, and all candidates, including independents, are listed on a single ballot; the top two vote-getters, regardless of party, advance to the runoff. Last month, the voters of Oregon became the latest to reject such a measure.

California voters have turned down a similar proposal twice-- in 1915 and 2004. Now a state assemblyman has introduced a constitutional amendment for an "open primary" for state executive and legislative offices. Under this proposal, there would be no runoff when someone got 50-plus percent in the first round.

The failed Prop. 62-- which lost in 51 of the state's 58 counties in November 2004-- proposed a "top two"/"open primary" for state AND congressional elections. Under this plan, there would have ALWAYS been a runoff, even if one candidate got 50-plus percent in the first round.

"California passed an open primary law in 1996, but it was thrown out by the courts in 2000. This year, the state of Washington had its own open primary law upheld by the [U. S.] Supreme Court, paving the legal way for open primaries in California."

It was a blanket primary that California voters approved in 1996. All candidates of all parties were listed on the same primary ballot, and the top vote-getter from each party proceeded to the general election, where any independent candidates were also listed.

Last March the U. S. Supreme Court said that Washington state's "top two"-- on its face-- does not violate the political parties' associational rights, and the Evergreen State used the "top two" for the first time this year. The parties are, however, challenging the "top two" on other grounds, and that lawsuit is now in U. S. district court in that state.

Typically, the writer of the above-linked piece neglects to mention the defeat of California's Prop. 62 in 2004.

If the constitutional amendment were to pass the state assembly, it would then be placed on the ballot as a referendum. I predict that (1) the amendment will fail in the assembly, and (2) another "top two"/"open primary" initiative will qualify for the ballot, probably in 2010.


Anonymous Jim Riley said...

Nebraska's unicameral legislature, which is elected by a Top 2 election, was approved by a popular initiative by a 60%-40% margin in 1934 which carried 90% of the counties and precincts in the State.

Thu Dec 18, 06:35:00 PM CST  
Anonymous Jim Riley said...

Why independent voters may vote in Nebraska's congressional party primaries.

In Tashjian, the US Supreme Court ruled that the Connecticut Republican Party had the right to open its primaries for State and federal offices to independent voters. The party did not seek to open its legislative primaries.

While the decision was based on freedom of association grounds under the 1st and 14th Amendments, there was a secondary issue of whether the differing standards violated Article 1, Section 2 and the 17th Amendment, that provide that the qualification for voters in elections for federal representatives and senators is the same as for elections for the larger branch of the State legislature.

The majority opinion agreed that the qualifications clause did apply to primary elections, but then concluded that there was no requirement for absolute symmetry between qualifications for voters in congressional and legislative elections. The decision suggests that since in Connecticut the qualifications for federal primaries were more liberal (Republicans could vote in legislative primaries; Republicans plus independents could vote in congressional primaries) that the regulation proposed by the GOP was acceptable.

Justice Stephens in his minority opinion, joined by Justice Scalia, would have rejected the entire case on the different qualifications (presumably the GOP could have changed their regulations and brought the case back for further litigation on the freedom of association issue.

After Tashjian, it was noticed that in Nebraska, the qualification for legislative primaries, which are non-partisan, was different than that for federal primaries, which are partisan. But in this case, the qualification for voting in legislative primaries was broader than that for congressional primaries.

The Nebraska Attorney General issued an opinion that Nebraska laws were probably unconstitutional, and that independent voters could vote in partisan congressional primaries. The legislature has since incorporated this into law.

Thus in Nebraska, you have the curious situation where independent voters may pick a party and vote in a partisan congressional primary; but at the same election are blocked from voting in partisan primaries for state offices; and of course may vote in non-partisan Top 2 primaries for the legislature.

The logic behind the Nebraska situation may apply to Louisiana, now that it has reverted to using party primaries for congressional elections, but continues to use the so-called "jungle primary" for legislative elections.

As in Nebraska, any voter may vote in the legislative election (which is a general election followed by a runoff when the leading candidate does not achieve a majority). But participation of independent voters in party primaries for Congress is at the discretion of the political parties.

Perhaps a distinction could be made on the basis of the legislative elections being general elections, while the congressional elections have party primaries followed by a general election.

But this may simply be relying on nomenclature, especially since Louisiana cancels the general election in cases where there is only a single candidate. Rodney Alexander was elected to Congress in the Republican primary, from which Democrats and independents as matter of law were prevent from voting in. Since there were no other candidates, there was no general election.

Fri Dec 19, 12:54:00 AM CST  

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