California primary
election law has a complex history. The direct primary first became law in 1909
as a progressive era reform. The legislation created a closed primary system
in which registered voters of a particular party received only the ballot of
that party. Registered voters who declined to state a party preference received
a ballot containing only non-partisan offices. In 1913, in a further progressive
era reform, cross filing was instituted. Cross filing permitted a candidate
to appear on more than one party ballot for the same office, and to become the
nominee of more than one party. Cross filing was eliminated in 1959.
The next big change
in primary election law occurred in 1996 with the passage of Proposition
198 in the March primary. Called the "Open Primary Initiative,"
Proposition 198 created a Louisiana-style blanket primary for California. The
blanket primary permitted all voters, both registered partisans and "declined
to state" independents, to choose among all the the candidates on the primary
ballot, irrespective of party affiliation. The intent was to encourage political
participation and to promote the selection of "centerist" candidates
who would need to appeal to a broad spectrum of voters to win.
The blanket primary
system was in effect for the primary elections of June 1998 and March 2000.
In June 2000 the United States Supreme Court declared Proposition 198 unconstitutional.
In California
Democratic Party v. Jones, the high court invoked the First Amendment right
of association and ruled that political parties in California have a constitutional
right to exclude nonparty members in primary elections.
In September 2000,
in the aftermath of the Supreme Court decision, California enacted SB28
(Ch. 898, Stats. 2000) which established a modified closed primary. SB28 took
effect on January 1, 2001 and is currently in force, pending the results of
the November 2004 election. Under SB28, registered voters of a particular party
receive only the ballot of that party, as was the case with California's earlier
closed primary law. However, unaffiliated ("decline to state") voters
may choose a party ballot, but only if the party has authorized unaffiliated
voters to participate in its primary. The Democratic and Republican parties
allowed such participation in the 2002 and 2004 primaries. Critics of the current
law find is provisions obscure and confusing, and note that many unaffiliated
voters in the 2002 and 2004 primaries were unaware that they had a choice of
party ballots.
Two competing primary
election measures appear on the November 2004 ballot. Proposition 62
was placed on the ballot in an initiative campaign led by a coalition of corporations,
business executives and politicians. It would restore a version of the blanket
primary in which the top two vote-getters would always appear on the general
election ballot. Proposition 60 (SCA18)
was placed on the ballot by the legislature in June 2004 to counter Proposition
62. It would essentially preserve the existing modified closed primary system.
If both propositions pass, the one with the most votes prevails.
Proposition 62
provides for a single primary ballot in which all state and congressional candidates
appear together, regardless of party affiliation. The top two vote getters for
each office would appear on the general election ballot, even if one of the
two received a majority of the vote (or 80 or 90 percent of vote), and even
if the two were of the same party. The presidential nominating process would
be unaffected by Proposition 62. National party rules require that only voters
registered with a particular party cast ballots for that party's presidential
candidates.
Proposition 62
is officially called the Voter Choice Open Primary Act, but it might be better
understood as advocating a version of the blanket primary. In legal and political
science circles "open primary" is generally understood to refer to
a system in which which each party has a separate ballot and the voter chooses
among the ballots on election day. The Proposition 62 version of the blanket
primary differs from its Proposition 198 predecessor in that it would create
a "top two" system in which candidates in the general election are
the top vote getters, not official party nominees.
Proposition 62
proponents have the same overarching goal that Proposition 198 backers had:
to promote the election of moderate, centerist candidates, even in districts
heavily gerrymandered to favor Democrats or Republicans, by encouraging candidates
in the primary to appeal to a wide spectrum of voters in order to win enough
votes to be "top two" candidates in the general election. Proposition
62 proponents also seek to discourage the phenomenon of third party "spoilers"
in general elections. A third party spoiler is a candidate who is perceived
as drawing support away from a major party candidate and tipping the general
election to favor the opposing major party candidate. The most egregious instance
of the spoiler phenomenon occurs when a third party candidate receives behind-the-scenes
help or is otherwise manipulated in order to divert support away from a major
party candidate.
Supporters also
contend that Proposition 62 would encourage voter participation. Legislative
districts are so heavily gerrymandered to favor the major parties that the general
election outcome is usually a foregone conclusion. Under Proposition 62, supporters
say, the top two candidates in the general election would more likely be serious,
viable candidates, and thereby generate interest in the general election.
Proposition 62
opponents make three basic arguments. One is that Proposition 62 would further
weaken California's political parties by reducing the incentive of voters to
register with a political party. Opponents argue that weakened parties have
especially bad consequences for the state legislature, which in their view already
suffers from disorganization and lack of discipline. Lobbyists and special interests
would fill the power vacuum left by weakened parties.
Second, opponents
contend that Proposition 62 would turn the primaries into free-for-all races,
fostering divisive intraparty contests and giving fringe candidates the chance
to be top vote getters. In this vein, opponents assert that single-ballot primaries
would be fertile ground for the spoiler phenomenon that proponents find objectionable
in the general election.
Third, opponents
argue that Proposition 62 would reduce voter choice in the general election.
Third party candidates, they maintain, would almost never get enough votes to
be "top two" candidates. Voters would find only the top Democrat and
the top Republican (or perhaps two Democrats or two Republicans) on the general
election ballot, and general elections would be mere runoff elections.
Proposition 60
would insert a provision into the state constitution giving all political parties
participating in a primary election the right to advance their top vote-getting
candidate(s) to the general election. Regarding primary elections per se, Proposition
60 says only that there shall be "primary elections for partisan offices,
including an open presidential primary." Thus Proposition 60 would maintain
the election system in effect since 2001.
Authored by Senators
Ross Johnson (R-Irvine) and Deirdre Albert (D-San Diego), SCA18,
which became Proposition 60, was placed on the ballot as the state legislature's
alternative to Proposition 62. SCA18 was rushed through the legislature just
ahead of the deadline for placing measures on the November general election
ballot, and met the two-thirds vote requirement for such measures with wide
bipartisan support.
Initially Proposition
60 included a provision requiring that proceeds from the sale of surplus state
property be used to pay down the $15 billion in deficit bonds included in the
2003-2004 budget package. Proposition 60 was challenged in court on the ground
that it violated the state constitution's ban on multi-subject ballot measures.
Petitioners in Californians for an Open Primary v. Shelley (2004 Cal. App. Lexis
1259) sought its removal from the ballot altogether. In a July 30, 2004 decision,
the California Third District Court of Appeal allowed Proposition 60 to stay
on the ballot, but ordered that it be split into two separate propositions.
On August 3, 2004 Secretary of State Kevin Shelley announced that the "surplus
state property" provision would become Proposition 60A on the November
ballot. On August 9, 2004, with the deadline for printing the Official Voter
Information Guide looming, the California Supreme Court let stand the appellate
court decision bifurcating Proposition 60, but agreed to review the legal issues
at a later time, after "adequate briefing, oral argument and deliberation."
The end result of the litigation is that Proposition 60 remains on the general
election ballot as a single-subject measure concerned with elections only.
Proponents argue
that Proposition 60 would preserve voter choice, and that voters need an alternative
to the radical changes proffered in Proposition 62. Opponents contend that Proposition
60 is a crude "poison pill" measure intended to sidetrack Proposition
62 and confuse voters.
Official Voter Information
Via the California
Secretary of State. The text, legislative analysis and ballot arguments are
from the Official
Voter Information Guide. Campaign finance data is from the
Cal-Access database of campaign receipts
and expenditures.
Proposition
62:
Text
Legislative
Analysis and Ballot Arguments
Campaign Finance:
Individual Campaign Committees
Total Contributions and Expenditures (select "Nov. 2004 election" and "Prop. 62" in dropdown boxes)
Proposition
60:
Text
Legislative
Analysis and Ballot Arguments
Campaign Finance:
Individual Campaign Committees
Total Contributions and Expenditures (select "Nov. 2004 election" and "Prop. 60" in dropdown boxes)
Public
Interest Sites
League of Women Voters of California Education Fund
Impartial analysis of Proposition 60: In
Depth and Pros
and Cons
Impartial analysis of Proposition 62: In
Depth and Pros
and Cons
California Journal
Ballot
propositions: Analysis of the November propositions by California Journal editors in the October issue.
Advocacy
Sites
Californians for an Open Primary
Pro-Proposition 62 site.
Californians
for Election Accountability
Anti-Proposition 62 site.
"Late-breaking surge of No votes on Prop. 66 (three strikes limits) puts outcome in doubt. Declining support for Prop. 62 (open primary). Heavy No vote on two Indian gambling measures.," Field Poll, Oct. 30, 2004. (Release
#2146).
Field
Poll
"Props.
62 and 60: Voters continue to favor both primary election rules ballot propositions,
although many are undecided.," Field Poll, Oct. 14, 2004. (Release
#2142).
Field
Poll
Mark Baldassare.
“Support for open
primary; health insurance referendum lags despite health care worries,"
PPIC Statewide Survey, Sept. 2004.
See p. vi.
"Props. 62 and 60: voters favor changes to primary election rules,"
Field Poll, Aug. 17, 2004. (Release #2131).
Field
Poll
"Large
majority supports easing of 'Three Strikes' law: telephone surtax to fund
emergency services and open primary law also favored, but by narrower .argins,"
Field Poll, June 10, 2004. (Release no. 2121).
Field Poll
The following citations
include links to full-text online when available. For more information, see Tips
for Finding Full-Text Articles.
Citations are listed in reverse chronological order.
Marimow, Ann E.
"Dramatic Changes Sought In State Elections: Open primaries gain as more vote independent," San Jose Mercury News, Oct. 27, 2004.
NewsBank (UCB)
Weintraub, Daniel.
"Proposition 62 would empower the broad middle," Sacramento Bee, Oct. 26, 2004.
NewsBank (UCB)
Vogel, Nancy.
"Governor Breaks Ranks Toward Center:
Schwarzenegger's backing of a $3-billion stem cell initiative and a blanket primary goes against his party's positions. The measures are narrowly ahead in polls. His support could tip the balance," Los Angeles Times, Oct. 19, 2004.
NewsBank (UCB)
[Opinion]
"Yes on Prop. 62," San Francisco Chronicle, Oct. 20, 2004.
San
Francisco Chronicle
Gledhill, Lynda
and Martin, Mark.
"Governor bucks Bush on stem cell research: Schwarzenegger also supports
plan for open primary," San Francisco Chronicle, Oct. 19, 2004.
San
Francisco Chronicle
Lucas, Greg.
"Voters favor bringing back open primary: Rival measure also winning,
but with half undecided," San Francisco Chronicle, Oct. 14,
2004.
San
Francisco Chronicle
Smith, Dan.
"Prop. 62 puts party lines on the line; plans to let primary voters cross
over gets bipartisan scorn," Sacramento Bee, Oct. 3, 2004.
NewsBank
(UCB)
[Opinion]
"Shake up candidates: yes on 62," San Jose Mercury News,
Sept. 14, 2004.
Newsbank
(UCB)
Leff, Lisa.
"Calif. high court to hear appeal of measure that would keep primaries
closed," San Francisco Chronicle, Aug. 9, 2004.
San
Francisco Chronicle
Coleman, Jennifer.
"Ballot measure split in two: rival propositions on primary process will
collide in November," San Jose Mercury News, July 30, 2004.
NewsBank (UCB)
Saunders, Deborah.
"Rancor and gridlock," San Francisco Chronicle, July 25,
2004.
San
Francisco Chronicle
"Should
voters go for an open primary?" Sacramento Bee, July 11, 2004.
Contents: Yes, beware poison pill legislators passed to sabotage this initiative,
by Tony Quinn. -- no, been there, done that, it's a party pooper, by Seth
Masket.
Sacramento
Bee - Quinn
Sacramento
Bee - Masket
Quinn, Tony.
"A sneak attack on open primaries: GOP is spending big on an effort that
may thwart the will of California voters," Los Angeles Times, July
4, 2004.
Newsbank (UCB)
Benson, Clea.
"Second primary measure on ballot: critics call the hurriedly passed
competing item an 'Incumbent Protection Act.,'" Sacramento Bee,
June 25, 2004.
NewsBank (UCB)
Berthelsen, Christian.
"Senate elections bill undermines open primary ballot initiative"
San Francisco Chronicle, June 22, 2004.
San
Francisco Chronicle
Puentes, Julie.
SCA 18 Makes the Case for the Open Primary. Irvine: Orange County
Business Council, [June 2004].
Orange County Business
Council
"'Top two"
system qualifies for Calif. ballot: would remove Minor Party Members from
November ballot"," Ballot Access News, Apr. 1, 2004, p. 1.
Ballot Access News
Cain, Bruce E.;
Gerber, Elisabeth R., eds.
Voting at the political fault line: California's experiment with
the blanket primary. Berkeley: University of California Press, 2002.
373 p.
Schrag, Peter.
"The initiative, the courts and the crocodile in the bathtub," Public
Affairs Report, v. 41, no. 4 (Sept., 2000).
Commentary on U.S. Supreme Court decision striking down Proposition 187.
Public
Affairs Report
Lee, Eugene C.
"The open primary will revitalize California politics," Public
Affairs Report, v. 37, no. 3 (May 1996), p. 6.
Kousser, J. Morgan.
"The open primary will ruin California politics," Public Affairs
Report, v. 37, no. 3 (May 1996), p. 7.
