California's "Open Primary" is Unconstitutional

And so is Washington state's "top two." California voters on June 8 approved Proposition 14, a measure for a "top two open primary" for state and congressional elections. The following was written in 2004, during the campaign for the failed Proposition 62, which was similar to 2010's Proposition 14. Richard says that his thinking has since evolved, so that he now considers the California/Washington state "top two" systems to be unconstitutional for ALL offices. The key to the change in his thinking is that no one can be elected to office in the first round. Rather, the purpose of the first round is simply to winnow the field to two candidates.

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by Richard Winger, Publisher, Ballot Access News

The U. S. Congress, in 1872, exercised its Article One right to supersede state election laws concerning congressional elections. Congress told the states that they must hold their congressional elections on the first Tuesday after the first Monday in November. And, Congress said that if a state desires to guarantee that the winner has 50-plus percent support, a state is permitted to hold such a runoff after the November election. (See the unanimous U. S. Supreme Court decision Foster v. Love, 522 US 67 [1997].) That decision told Louisiana to stop holding its first round (in its nonpartisan congressional election scheme) in September, with a runoff in November when no one got 50-plus percent. In 1998, Louisiana began holding its first round in November, with a runoff, if needed, five weeks later.

California's Proposition 62 could have been written to follow the Louisiana model, with the first round of a congressional election in November, and a runoff in December if no one got 50-plus percent. But instead, Prop. 62's authors gambled that they could keep the June/November pattern, if they provided that the second place finisher in June always gets another shot in November, even if in the first round, someone got over 50 percent. This idea, in contrast, has not been used in California for its nonpartisan county and municipal elections. In a California county or city election, if someone gets 50-plus percent in the first round, that person is elected. It's silly to hold a runoff if the first round was Jones 80 percent, Smith 20 percent. But likely because of the Foster v. Love problem, such a runoff was written into Prop. 62 [in Washington state's "top two," an August/November schedule is used].

The problem with that, legally, is the ballot access jurisprudence. The U. S. Supreme Court has issued 16 full opinions concerning ballot access for minor party and independent candidates. Minor parties and independents won nine of those cases and lost three, and there were procedural problems with the other four, so that there
was no final resolution in the U. S. Supreme Court. Nevertheless, all 16 decisions have something interesting to say. The net effect of these 16 rulings, especially in relation to congressional elections, is this: States cannot keep any candidate off the November ballot (remember, Congress says the first Tuesday in November is congressional election day) if that candidate (1) has a "modicum of support," (2) meets the constitutional requirements to be a member of Congress, and (3) has not sabotaged his or her own party (i.e., is not a "sore loser"). "Modicum of support" means five percent.

California [and Washington state] cannot constitutionally keep someone off "the" election ballot if that person meets the constitutional qualifications and enjoys voter support of at least five percent. When one looks at the 408 blanket primaries[1] California has held (all primaries in 1998 and 2000, plus all special elections starting in 1967), one finds that the average second-place finisher has polled 25 percent. So, in effect, Prop. 62 says, "If you don't show voter support of, on the average, 25 percent, in some pre-election voting procedures, you cannot appear on the congressional election ballot in November." But California cannot do that without violating the ballot access precedents [Washington state's threshold is 30 percent].

The U. S. Supreme Court ruled in Munro v. Socialist Workers Party, 479 US 189 (1986), that "modicum of support" applies the same way to petition requirements as it does to primary vote tests. In that case, Washington state required all candidates for partisan federal and state office to poll one percent in the September blanket primary. The Socialist Workers Party candidate for the U. S. Senate failed to get one percent in the primary, so he couldn't appear on the November ballot. The Socialist Workers Party lost the case, but only because one percent is, indeed, only one percent. Since the U. S. Supreme Court had already ruled that candidate access to the general election ballot could require a petition signed by five percent of the voters, the justices said that the one percent primary vote test is also constitutional. The Court said on page 197, "We are unpersuaded that the differences between the two mechanisms are of constitutional dimenson" (the two mechanisms being a petition and a primary vote test).

The U. S. Supreme Court ruled in Lendall v. Jernigan, 433 US 901 (1977) that 10 percent is too high a petition burden. Although this was only a summary affirmance, I have a copy of Justice Potter Stewart's two-page, single-spaced memorandum to the other justices, recommending that the high court affirm the lower court decision, which had struck down the 10 percent petition requirement. Stewart's memo points out that the Court had already struck down a 15 percent petition requirement in Williams v. Rhodes, 393 US 23 (1968) and had hinted strongly in Storer v. Brown, 415 US 724 (1974) that five percent was as high as the states could go. The Court followed Stewart's lead and did summarily affirm the lower court.

Since the U. S. Supreme Court has said that "modicum of support" requirements cannot exceed five percent, and since California's Prop. 62 imposes a 25 percent (on the average) "modicum of support" barrier to "the" congressional election ballot, Prop. 62 is unconstitutional [and so is Washington state's "top two," with its 30 percent threshold].

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[1] In a blanket primary, all candidates of all parties are listed on the same ballot, and the top vote-getter from each party advances to the general election. The U. S. Supreme Court struck down the state-mandated blanket primary in California Democratic Party v. Jones (2000).