The Golden State's "Open Primary"

From the July 1, 2010 edition of Ballot Access News:

On June 8, California voters passed Proposition 14 by 53.7% to 46.3%. It provides that the only two candidates who can be on the November ballot for Congress and partisan state office are the two candidates who poll the most votes in June. The implementing language also says that write-in votes in November for Congress and state office can no longer be counted.

Proposition 14 was put on the ballot by the state legislature in February 2009. Most legislators did not favor that system, but they voted for it in return for state Senator [now lieutenant governor] Abel Maldonado's vote for the budget.

All of the state's large newspapers, except the Orange County Register, endorsed Proposition 14. Some newspapers not only endorsed the measure, they printed untrue statements about it.

The campaign against Proposition 14 was outspent 20:1. The campaign for the measure raised [more than] $4.5 million and spent a great deal on radio ads. The campaign against the measure raised $216,000. The Democratic and Republican parties raised money and arranged for Internet ads against the measure, and also arranged for some slate cards to recommend a "No" vote. But the only TV and radio ads against the measure were created and paid for by the Libertarian, Green, and Peace & Freedom parties. [The group] Free & Equal created the leading Web page against Proposition 14, and it, as well as Californians for Electoral Reform, organized press conferences and protests against the measure.

The "top two" system was tried in Washington state for the first time in 2008 and resulted in a Democratic-Republican monopoly on the ballot for all congressional and all statewide state offices. In Louisiana, which has used the "top two" ["open primary"] for state office since 1975, no minor party candidate ever qualified for the second round. Louisiana also used "top two" for congressional elections, 1978-2006, and again, no minor party candidate ever qualified for the second round. However, because the Louisiana system for Congress held its first round in November for the years 1998-2006, the Louisiana system did not have the effect of keeping minor party congressional candidates out of the November election after 1996.

Proposition 14 lost among the voters who voted on June 8. But approximately half the voters voted by mail during the period May 10-June 7, and those voters overwhelmingly approved Proposition 14. The mail vote count was released at 8 p. m. on election day, and it showed the measure passing with 60%. Therefore, it appears that voters who voted at the polls rejected it, 48%-52%.

The reason for this disparity is that the campaign against Proposition 14 did not swing into full gear until two weeks before election day. Voters who voted early did not hear any message against the measure.

The selling point for the proposition was that the state legislature has been late with the budget [which requires a two-thirds approval vote] every year for the past nine years. Proponents insisted that Proposition 14 will change the type of people elected to the legislature. This was a winning message, and the political science research suggesting that there is no connection between openness of a primary, and whether the legislature is polarized, was largely unpublicized.

Lawsuits against Proposition 14 will be filed, but because the constitutionality of the "top two" idea will undergo a trial in U. S. District Court in Washington state starting November 15, 2010, challenges to California's new law will probably not be filed until 2011. There may be limited lawsuits brought this year against some particular problems with Proposition 14 that are not present in the Washington state "top two" system.