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Free Citizen

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

Location: Jackson, Mississippi, United States

Tuesday, June 29, 2010

The Moderate Voice: "Open Primary" for Local Offices

Free Citizen: "Open Primary" for Local Offices

Sunday, June 27, 2010

"Open Primary" for Local Offices

At this posting, there are eight comments on this letter, which appeared in the June 27 Clarion-Ledger.


Columnist Bill Minor wrote about Mississippi's past attempts to change to nonpartisan elections, popularly called "open primaries" ("Maybe Miss. is ready to install open primary system," June 18).

While we now have a two-party state, many of our counties still decide their local elections in one party's primary. In 2011, when we elect our state and county officials, many voters will again be upset over the lack of choice in the August party primaries. These people will have to decide whether to vote for their county officials or for their favorite candidates for state offices.

We could remedy this situation by eliminating party primaries for county offices and instead listing all candidates for each county office on both the Democratic and the Republican primary ballots. Then, regardless of which party's ballot the voter picked for state offices, he or she would be able to choose among all the candidates for county offices.

Click here to see how this plan would work.

Since the legislature refuses to make this change, we citizens will have to do it through a ballot initiative.

Why do we need party primaries for local offices anyway?

Steve Rankin

Saturday, June 26, 2010

South Carolina GOP Files Suit vs. Open Primary Law

On June 1, the South Carolina Republican Party and its Greenville County affiliate filed suit in U. S. district court against the state law that enables each voter to pick a party on primary day. The GOP wants to be able to block non-Republicans from voting in Republican primaries (Greenville County Republican Party v. State of South Carolina and Hudgens, 6:10-cv-1407-HFF).

Parties in the Palmetto State must pay the costs of their municipal primaries. The Republicans' lawsuit argues that this is a good reason for the party to be able to decide who is eligible to vote in its municipal primaries (less than 10 South Carolina municipalities still use party primaries in electing their city officials; the rest have nonpartisan elections, in which all candidates are listed on a single ballot).

The suit also attacks the "three-fourths rule." For federal, state, and county offices, parties may nominate by convention instead of primary; the law requires a three-fourths convention vote to trigger a nominating convention. The Republicans would seem to have a better chance of having this law struck down than the open primary law. The court(s) may well strike down the three-fourths rule and tell the party that, if it wants a closed process, it can choose by a simple majority to nominate by convention instead of primary (see Miller v. Cunningham, 2007).

"[The Republicans said the] lawsuit is aimed at forcing the Legislature to require voters to register by party before voting in primary elections."

"[Greenville County GOP chairman Patrick] Haddon said the party ultimately hopes the Legislature will force party registration as far in advance as 90 days."

It's worth noting that, in every state where at least one party excludes some voters from its primaries, the state registers voters by party. It's up to the state as to (1) whether there is registration by party, and (2) what the deadlines for registering are. Some states even let people register at the polls on primary day and vote in the primary of their new party.

"It's unclear how the proposal would affect people who vote in Republican primaries but consider themselves political independents."

In 1986, the U. S. Supreme Court empowered parties to invite independents to vote in their primaries (Tashjian v. Republican Party of Connecticut). Thus, if South Carolina's open primary law were struck down, each party would be able to decide whether independents were eligible to vote in its primaries.

Unless state law prohibits it, a party may even invite members of opposing parties to vote in its primaries-- which the South Carolina Republicans obviously won't do (Clingman v. Beaver, 2005).

In May 2008, the 5th U. S. Circuit Court of Appeals in New Orleans reversed the district court and dismissed the lawsuit against Mississippi's open primary law (Mississippi Democratic Party v. Barbour, 07-60667). The reason for this was that the Democrats had not adopted a rule for a closed primary. The South Carolina Republicans have apparently also not ratified such a rule.

The trial in the challenge to Idaho's open primary law is scheduled to start on October 12, 2010 in the U. S. district court in Boise (Idaho Republican Party v. Ysursa, 08-cv-165). Parties in the Gem State have no nominating option other than the primary.

Here's a brief audio of Chairman Haddon talking about the South Carolina lawsuit (a ruling from the 4th U. S. Circuit Court of Appeals, of course, can be appealed to the U. S. Supreme Court, which has never yet reviewed an open primary case).

Thursday, June 24, 2010

Texas Democrats Still Fighting Voter ID

At this posting, there are 309 comments on this article.


by Christy Hoppe | The Dallas Morning News

AUSTIN – Texas Democrats have staked out political ground that trumpets their beliefs and will ignite supporters at the party's state convention this week – protecting the rights of eligible citizens to vote.

The only problem – especially for a political party that hasn't won a statewide office in 15 years – is that when it comes to whether voters should have to show a photo ID, 70 percent of Texans disagree with the Democrats.

Most Texans believe that if they need one to rent a video or get on a plane, it makes sense that there should be equal safeguards for the ballot.

But many Democrats believe it would mean turning away eligible voters – especially the poor, disabled and elderly who are the least likely to have driver's licenses.

Republicans have made a new law on the issue, usually referred to by the shorthand "voter ID," one of their top priorities. Democrats have vowed to fight, but it poses a political problem.

"It is, in the short-term, a loser issue," said Daron Shaw, a pollster and University of Texas political science professor.

In a poll he conducted last year, voters were told that "such a requirement has a negligible effect on voter fraud but places significant obstacles on elderly, low income, disabled and minority voters."

But an overwhelming majority of Texans still liked the idea of voter ID.

Support exceeded 50 percent among all...Read more>>>>

Wednesday, June 23, 2010

Trial in Idaho Republicans' Suit Begins October 12, 2010

The Idaho Republican Party filed a lawsuit against that state's primary election law in April 2008. The law says that each voter picks a party on primary day, and each party's primary is open to any voter. The GOP wants to be able to enforce its rule that only its party members may vote in Republican primaries.

U. S. district judge B. Lynn Winmill determined that a trial is necessary, and that trial will start in the district court in Boise on October 12, 2010. The Republican Party will present evidence of non-Republicans voting in GOP primaries, while the state will presumably show evidence to the contrary (Idaho Republican Party v. Ysursa, 08-cv-165).

I have been predicting that, when such a case reaches the U. S. Supreme Court, the justices will strike down the state-mandated open primary. At this point, the Idaho Republicans' suit appears to have a better chance of prompting that landmark ruling than does the similar federal lawsuit that was recently brought by the South Carolina Republican Party.

In December 2007, in a suit filed by a local unit of the Virginia Republican Party, the 4th U. S. Circuit Court of Appeals ruled that, when a party is required to nominate by primary, the party-- not the state-- decides who is eligible to vote in that primary (Miller v. Cunningham).

In May 2008, the 5th U. S. Circuit Court of Appeals in New Orleans reversed the district court and dismissed the lawsuit against Mississippi's state-mandated open primary. The reason for this was that the Democrats had not adopted a party rule for a closed primary (Mississippi Democratic Party v. Barbour). Notably, the South Carolina Republican Party has likewise not ratified such a rule, while, again, the Idaho Republican Party has.

Thanks to Ballot Access News for the news about the date of the trial.

Sunday, June 20, 2010

David Bowen on the "Open Primary"

David Bowen commented on the results of recent primary elections, including California's passage of Proposition 14, which would impose a "top two open primary" for state and congressional elections.

Bowen, who hails from the Mississippi Delta town of Cleveland, was a member of the U. S. House from 1973 to 1983. One of the Boll Weevil Democrats-- predecessors of the Blue Dogs-- he voted for President Reagan's income tax cuts. Prior to his House service, Bowen was part of the administration of John Bell Williams, governor from 1968 to 1972.

"... Proposition 14... could lead to the obsolescence of political parties. ... party primaries will be terminated next year, replaced by a single wide-open election, with the top two candidates facing each other in the [runoff]."

If Prop. 14 is upheld, the "open primary" will first be used in 2012. There will continue to be party primaries for president.

"This is similar to the open primary system in Louisiana and identical to the 'top two' system in Washington state, both of which have been upheld by federal courts."

The misinformation contained in the last part of that sentence was spread widely during the recent California campaign. The U. S. Supreme Court said in 2008 that Washington's "top two" is constitutional on its face, but the justices left the door open for an as-applied challenge. Now that the state has used the "top two" once-- in 2008-- it is facing a trial in U. S. district court in November 2010, as well as future litigation in the 9th U. S. Circuit Court of Appeals.

There have been two lawsuits involving Louisiana's "open primary," neither of which challenged the overall system. The more notable suit, Foster v. Love, concerned the timing of congressional elections. That case caused the state, in 1998, to change to a November/December format for its congressional elections.

The basic difference between the Louisiana system and the Washington/California systems is that Washington and California will always have a runoff; hence it's possible for a candidate who gets 50-plus percent in the first round to be defeated in the runoff. This-- along with other aspects-- casts doubt on the constitutionality of the Washington and California systems. Unlike in Louisiana, no one can be elected in the first round; rather, the purpose of the first round is merely to winnow the field to two candidates.

Washington permits write-in votes, but California and Louisiana do not.

"Mississippi has never been allowed by the Justice Department or the federal courts to establish such a system, because of a discriminatory application of the Voting Rights Act of 1965."

In 1971, the three-judge federal panel did not have the authority to order the "open primary" to be put into operation.[1] The Department of Justice (DOJ) mainly rejected the "open primary" in 1976 and 1979 because the Magnolia State, unlike Louisiana, had a recent history of black independent candidates. Another advantage that the Bayou State had in winning the DOJ's approval in 1975 was the considerable charm of Governor Edwin Edwards.

Mississippi's "open primary" was also stymied by the vetoes of two governors, Paul Johnson Jr. in 1966 and Bill Waller Sr. in 1975.

"[Prop. 14 was] bitterly opposed by hard-core Democratic and Republican party loyalists."

It was also opposed by California's four small parties, since it will ultimately destroy the small parties. The final choice in the "top two open primary" is almost always one Democrat and one Republican, two Democrats, OR two Republicans. It's amazing that so many independents support this concept, since they will rarely have the opportunity to elect an independent to office.

"Proposition 14... is designed to bring the middle back into American politics..."

In the states where the "top two open primary" has been tried, there is no evidence of greater moderation. Louisiana, e. g., has used it since 1975, and the politicians there certainly are not more "centrist" than they were pre-1975.

"... we shall watch with great interest to see if this new model of electoral reform will spread across the nation."

"New" and "reform" are not words that fit the "top two open primary." As far back as 1915, 58.2 percent of California voters defeated such a proposal. In 2004, Prop. 62 lost in 51 of the state's 58 counties.

North Dakota voters rejected a similar proposition in 1921, and 66 percent of Oregon voters said "no" to Measure 65 in 2008. And I've already mentioned the five times between 1966 and 1979 that the Mississippi legislature passed the "open primary" in vain.

Bowen takes potshots at the "anti-tax crusade;" he even includes a quote from Oliver Wendell Holmes, a liberal from the People's Republic of Massachusetts.

Any citizens who consider themselves to be undertaxed are free to make additional contributions to the local, state, and federal treasuries.


[1] Evers v. State Board of Election Commissioners, 327 F.Supp. 640

Saturday, June 19, 2010

Louisiana Passes "Open Primary" for Congress

On June 16, the Louisiana legislature enacted HB 292, which will reinstate the "open primary"[1] for congressional elections. The first round will be held on the first Tuesday in November, and there will be a runoff in December if necessary.

The Bayou State has used the "open primary" for its state and local elections continuously since 1975. It also used it for its congressional elections from 1978 through 2006; the November/December schedule was used from 1998 through 2006.

Governor Bobby Jindal (GIN-d'l) has signalled that he will sign HB 292, and it will then have to be precleared under Section 5 of the Voting Rights Act. The first regular elections that it will affect will be the 2012 elections.

Washington state first used its Louisiana-style "top two" for all of its state and congressional elections in 2008. The "top two" is facing a trial in U. S. district court in November 2010, as well as future litigation in the 9th U. S. Circuit Court of Appeals.

In 2012, if the recently-passed Proposition 14 is upheld, California will become the third state to use the "top two open primary" for all of its state and congressional elections.


[1] All candidates, including independents, are listed on the same ballot. The top two vote-getters, regardless of party, advance to the runoff. It's worth noting that Washington and California follow an August/November and a June/November scheme, respectively, for both state and congressional elections.

Friday, June 18, 2010

Mississippi and the "Open Primary"

Bill Minor's column today discussed nonpartisan elections ("open primaries")[1] and Mississippi's past attempts to impose such a system.

"Mississippi's 'open primary' law... was left in a state of 'suspended animation' in January, 1971, by a three-judge federal panel..."

In reality, that was in April 1971. The U. S. Department of Justice (DOJ) said that it needed more time and did not approve or disapprove the law (under Section 5 of the 1965 Voting Rights Act). The judges, who included the DOJ's entire letter in their ruling, did not have the authority to order the law's implementation (Evers v. State Board of Election Commissioners, 327 F.Supp. 640).

"[Several times the "open primary" was] rejected [by the DOJ] on grounds it prevented black Democrats from running as independents in general elections."

Mississippi had a number of black independent candidates in the 1960s and 1970s (independents, of course, only run in the general election). Those blacks knew that, if they ran in the Democratic primary, they would not reach the general election, since they couldn't get 50-plus percent in a statewide primary. Also, except for our statewide state offices, 50-plus percent is not needed to win a general election. The "open primary," in contrast, does require 50-plus percent to win.

Minor mentions a woman from DeSoto County in north Mississippi: "... she was a political independent who moved South several years ago from Chicago, 'and I'm tired of not being able to vote in primaries.'"

For state and congressional elections, Illinois has a setup similar to the Magnolia State's, in which each voter picks a party on primary day. In 2003, Chicago began holding nonpartisan elections ("open primaries") for its own city elections, as do some three-fourths of U. S. municipalities.

"... Mississippi three times had enacted open primary laws..."

The "open primary" was enacted four other times, in addition to the 1970 law that was blocked in 1971. It was vetoed by Governor Paul Johnson Jr. in 1966 and by Governor Bill Waller Sr. in 1975; the DOJ refused to preclear it under the Voting Rights Act in 1976 and 1979.

Mississippi could give voters greater choice by eliminating party primaries for local offices.


[1] All candidates, including independents, are listed on a single ballot. If no one gets 50-plus percent, the top two vote-getters, regardless of party, meet in a runoff.

Thursday, June 17, 2010

The Last Hope

"The only remedy short of armed rebellion is civil disobedience at the level of the states. Clear constitutional justification for refusal to obey Washington lies in the Tenth Amendment: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'"


by Fred Reed

Washington is out of control. It does as it likes, without restraint. It spends American money and American lives to fight remote wars for which it cannot provide a plausible reason. It determines what our children will be taught, who we can hire and fire, to whom we can sell our houses, whether we can defend ourselves, even what names we can call each other. The feds read our email and track the web sites we visit, make us hop around barefoot in airports at the command of surly unaccountable rentacops. They search us at random in train stations without even a pretense of probable cause. We have no influence over them, no way of resisting.

Except, perhaps, to ignore them.

Washington has learned to insulate itself from interference by the population. Huge impenetrable bureaucracies beyond public control make regulations that amount to laws, spending God knows how much money to do God knows what for the benefit of the interest groups that run the government. These bureaucrats cannot be fired and usually cannot be named. Congress, like the bureaucracies, serves not the United States but the big lobbies. The looters of Wall Street wreck the lives of millions, and get millions in bonuses for doing it instead of the end of a rope.

Further, the federal government simply doesn’t work. It is clogged up, constipated, gridlocked, using antiquated technology to do badly things it ought to do and things it oughtn’t. In large part this is because federal hiring rests on the desires of racist and feminist lobbies instead of suitability for the work to be done. Whole departments – HUD, Education – do much harm and little good. IRS is ruthless, incompetent, and unaccountable, the tax laws burdensome and crafted for the benefit of special interests and of Washington. I can change my address with my bank online in five minutes and know that it has been done; IRS requires a paper form and six to eight weeks to effect the change, and you don’t know whether it has been done. The goons of TSA leer at our daughters with their porno-scanners. The VA can easily take six months to provide a veteran’s records, when it could be done online in five seconds. The Pentagon spends a trillion a year, precious little of which has anything to do with defending America, but can’t defeat a small group of badly outnumbered men armed with rifles and RPGs; the intelligence agencies were unable to warn them of the prospect.

The government doesn’t work. It is broken. It can’t be fixed. It can’t be fixed because... Read more>>>>


Lew Rockwell interviews Thomas E. Woods Jr., on his new book, Nullification: How to Resist Federal Tyranny in the 21st Century.

Monday, June 14, 2010

George Will on California's "Open Primary"

At this posting, there are 58 comments on this piece.


On June 8, California voters approved Proposition 14, a measure for a Louisiana-style "top two open primary" for state and congressional elections. I wish that George Will had written about it several months ago, instead of waiting until after the election.

"... most new ideas are false, so most ideas for improvements make matters worse."

This is hardly a novel idea. 58.2 percent of California voters defeated such a proposal for state elections in 1915. Prop. 62, which would have imposed a "top two open primary" for state and congressional offices, lost in 51 of the state's 58 counties in 2004.

North Dakota voters rejected a similar measure in 1921, while 66 percent of Oregon voters said "no" to the "open primary" in 2008. Five times between 1966 and 1979, the Mississippi legislature enacted the "open primary" for state and local elections, but its implementation was stymied each time.

"[California's] Proposition 14 is an attempt to change government policies by changing the political process. ... . The two [candidates] receiving the most votes will be on November ballots, regardless of the desires of the political parties the nominees may claim to represent."

I would argue that the top two vote-getters are not "nominees," since the parties will no longer have any way of officially nominating candidates, except for president. The parties, of course, will still be able to endorse candidates, but there will be no guarantee that a party's candidate will reach the final, deciding election.

"Proposition 14's purpose is to weaken and marginalize parties, traditionally the principal vehicles for voter education and mobilization. It would strip them of their core function of selecting candidates who represent the preferences of their members. It infringes the First Amendment protection of freedom of association, which includes the right of parties not to associate with candidates they do not select."

There will definitely be federal litigation against Prop. 14. The only states now using this type of system for all state and/or congressional elections are Washington and Louisiana. Washington's "top two," which that state first used in 2008, is facing a trial in U. S. district court in November, as well as future litigation in the 9th U. S. Circuit Court of Appeals.

"... such [minor] parties -- Green, Libertarian, [American Independent, and Peace and Freedom] -- which previously could place candidates on November ballots, will almost always be excluded from those [ballots] by failing to run first or second in [the first round.]"

Californians also won't be seeing independents on their November ballots, other than for president.

"But, then, blandness is the point of this reform. It seeks to generate a homogenized political class, one not lumpy with liberals and conservatives who, being conviction politicians, do not always play well with others."

This claim-- that it will produce candidates who are all more "centrist"-- was one of the reasons that the U. S. Supreme Court struck down the blanket primary.[1] However, there's no evidence that the "top two open primary" results in a more moderate political class. Louisiana, e. g., has used its "open primary" since the 1970s, and that state's politicians are certainly not more moderate than pre-1970s politicos.

"Putting Proposition 14 on the ballot was the price paid for the vote of Abel Maldonado. He was a Republican state senator last year when three Republican votes were needed to enable Democrats to pass another tax increase that supposedly would solve the budget crisis that preceded the current one.

"[Maldonado] worked across the aisle to reach a compromise that gave the political class access to more of other people's money."

That $13 billion tax increase was the largest state tax hike in U. S. history. There were absolutely no legislative hearings on the bill that sparked Prop. 14; in fact, the bill was drawn up and rushed to passage between 3 a. m. and 6 a. m.

As George Will notes, only 8.9 percent of California's eligible voters supported Prop. 14.

Will wrote an excellent column when the U. S. Supreme Court was considering the case against the blanket primary, California Democratic Party v. Jones (2000).


[1] In the blanket primary which California used in 1998 and 2000, all candidates of all parties were listed on a single ballot, and the top vote-getter from each party advanced to the general election.

Friday, June 11, 2010

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.


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].


[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).

Wednesday, June 09, 2010

California Voters Pass "Open Primary"

On June 8, California voters enacted Proposition 14, a measure for a Louisiana-style "top two open primary."[1] Complete but unofficial returns show it with 53.8 percent of the vote.

The Golden State has used a similar system for its county and municipal elections for nearly 100 years, and Prop. 14 will affect state and congressional elections. The only other states with such a system are Washington and Louisiana. Washington first used it for its state and congressional elections in 2008, while Louisiana has used its "open primary" for state and local elections since 1975. The Bayou State is in the process of restoring the "open primary" for its congressional elections.

A comparable ballot measure, Proposition 62, lost in California in 2004, despite Governor Arnold Schwarzenegger's support, and he evidently held a grudge about that. Spearheading Prop. 14, the governor raised more than $4.5 million for it, enabling backers to outspend opponents 20 to 1. Also, the state's major newspapers were almost unanimous in their advocacy of the measure, and they gave little space to those on the other side.

All six of California's registered political parties opposed Prop. 14. It will be particularly harmful to the state's four small parties, who will ultimately lose their ballot-qualified status. The final choice in the "top two open primary" is nearly always one Democrat and one Republican, two Democrats, OR two Republicans. Californians will rarely see any independents or small-party candidates on their November ballots, except for president.

Another downside to this measure is that write-in votes will not be counted.

There will definitely be federal litigation against Prop. 14, which is almost certainly unconstitutional for congressional elections. A line of rulings from the U. S. Supreme Court has established that any candidate who has met a prior vote test of five percent is entitled to be on the November ballot for Congress. Prop. 14, however, sets a threshold of 25 percent for a candidate to be on the November ballot.

I am wondering how many Californians know about the trial that Washington state's "top two" is facing in U. S. district court in November. That state's system will also be subjected to litigation in the 9th U. S. Circuit Court of Appeals.

Richard Winger, a Californian who publishes Ballot Access News, says, "[There will be] no one on the November ballot but Democrats and Republicans, no write-ins counted. We know top-two works this way because that is how it worked in Washington state in 2008. I will not be voting in midterm general elections in California any longer, if Proposition 14 is upheld, and I suspect thousands of other Californians feel the same way."


[1] All candidates, including independents, are listed on a single ballot. The top two vote-getters, regardless of party, advance to the runoff. Louisiana has a runoff only when no candidate receives 50-plus percent in the first round. Washington state and California, in contrast, always have a second round of voting; thus it's possible for a candidate who gets 50-plus percent in the first round to be defeated in the runoff.

Wednesday, June 02, 2010

1-Party County Elections in a 2-Party State

Next Tuesday, South Carolina will hold its party primaries for federal, state, and county offices. Voters in some counties there will have to make a choice similar to the one that many Mississippians have to make every four years.

"Voters may have to make a choice between voting in statewide races of their choice, and voting in local races.

"At the local level, Chester County has a long history of being a Democratic county. Contested races are contested in the primaries, almost always. The winner of the primaries usually faces no GOP or independent challenges, so he or she wins the election, by default.

"But there is a long list of candidates on the GOP ticket. Four people are running for governor. Three people for lieutenant governor and six, yes six, people for education superintendent.

"If you want to vote in one of those races, but you also want to vote for County Supervisor, you’re out of luck. You have to make a choice. You cannot vote for both."

In Hinds County, seat of Mississippi's capital of Jackson, the races for county offices are decided in the Democratic primary. So any Hinds Countian who votes in the Republican primary misses out on voting for county officials (in 2007, for example, there was a hot race in the Republican primary for lieutenant governor between Phil Bryant and Charlie Ross).

In neighboring Rankin County, the reverse is true. Almost all of the candidates for county offices run in the Republican primary, so anyone who chooses a Democratic ballot doesn't get to vote for county officials (in 2007, Rob Smith of Rankin County ran in the Democratic primary for secretary of state).

The writer in South Carolina makes a suggestion that would also solve Mississippi's problem: Change to nonpartisan elections-- popularly called "open primaries"-- for county officials. Unlike in South Carolina, Mississippi citizens can make this change through a ballot initiative.

This has been a recurring issue in the Magnolia State for many years. Along about this time next year, many of our people will again be fired up about it.

When are we going to actually DO something about it?