An Opening for the Open Primary?
Before dawn on February 19, 2009, the Legislature passed SCA 4 (Maldonado) as part of a package of reforms negotiated in order to obtain the necessary two-thirds vote needed for passage of the State Budget. SCA 4, if approved by the voters in June of 2010, would establish a “top-two” primary system where voters, irrespective of political party affiliation, can vote for candidates from any political party. The top two finishers then advance to the general election. Since the passage of SCA 4, many questions continue to circulate and confusion reigns. Part of the confusion rests in the fact that this is not the first time that the voters have been given the opportunity to weigh in on whether California should have open primaries. This issue has been put to the voters on two prior occasions. On the first occasion, the voters approved a “blanket” style open primary system, but the United States Supreme Court overturned it. On the second occasion, the voters defeated a similar ballot measure to SCA 4. This briefing report will attempt to answer some of these questions and clear up some of the confusion surrounding SCA 4 and the open primary system.
“Open” “Closed” or “Blanket:” What is the Difference?
There are several different types of primary election systems:
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Open primary allows all voters to participate, irrespective of political party affiliation. (When voters do not register with a party before the primary, it is called a “pick-a-party” primary because the voters can select on which party's primary ballot they wish to cast a vote.)
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Closed primary allows only those voters affiliated with a specific political party to vote for that party’s candidates.
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Semi-open primary allows all voters to participate, irrespective of political affiliation. However, the semi-open structure limits each voter to a single party’s primary and the voter must state in advance on which party’s ballot he or she wishes to cast a vote.
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Semi-closed primary (California’s current primary system) allows only those voters affiliated with a specific political party to vote for that party’s candidates however, decline to state (DTS) voters may participate as well.
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Run-off primaries are those in which the ballot is not restricted to one party and the top two candidates advance to the general election, irrespective of political party affiliation.
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Blanket primaries are a type of open primary in which all voters, irrespective of political party affiliation, are given the same ballot and may choose the party primary in which they want to vote on an office-by-office basis.
It is important to note that when attempting to apply the terms for the different types of primary systems a lot of confusion exists. In fact, the term “open primary” is often a catch all phrase. For example, although Prop 198 from 1996 was technically a blanket primary, it was titled the “Open Primary Act.” This was at least partially because it established a partisan primary where the standard bearers from each party for each office were chosen to then compete in the general election.
Primaries can also be used in nonpartisan elections to reduce the set of candidates that go on to the general election (qualifying primary). These are similar to run-off primary elections. In a qualifying primary a single seat election would allow only the top two finishers from the primary to participate in the general election. When a qualifying primary is applied to an election ballot that includes partisan offices, it becomes what is generally known as a non-partisan blanket primary (Louisiana-style primary). The state of Washington, which has this type of primary, identifies it as the “top-two” primary system. SCA 4 is modeled after this system.
History of the California Primary
California primary election law has been described by many as having a long and complicated history. The direct primary first became law in 1909 as a progressive era reform. It established a closed primary system. However, in 1913, cross filing (another progressive era reform) was instituted. It allowed a candidate to appear on more than one party ballot for the same office, and to become the nominee of more than one party. The practice of cross filing remained until 1959 when it was eventually abolished via a ballot initiative.
From 1959 until 1996, California’s primary system remained unchanged. In 1996, the voters, by a margin of 59.5% - 40.5%, approved Proposition 198 in the March primary. Called the "Open Primary Initiative," Proposition 198 created a blanket primary system for California.
This system was in effect for both the primary elections of June 1998 and March 2000. However, in June 2000, the United States Supreme Court overturned Proposition 198. In California Democratic Party v. Jones, the Court ruled that Prop 198 violated the First Amendment right of association and 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, through legislation, established a modified closed primary. While this legislation allowed DTS voters to choose a party ballot, it specified that this could be done only if the party has authorized unaffiliated voters to participate in its primary. Both the Democratic and Republican parties allowed such participation in the 2002, 2004, and 2006 primaries, but in the 2008 Presidential Primary only the Democratic Party allowed unaffiliated voters to participate.
Finally, two competing primary election measures appeared 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 have restored a version of the blanket primary similar to SCA 4. It failed by a margin of 46.1% - 53.9%. Proposition 60 was placed on the ballot by the Legislature in June 2004 as an alternative to Proposition 62. It essentially preserved the existing modified closed primary system. Proposition 60 passed by a margin of 67.6% - 32.4%.
What Would SCA 4 Do?
Article II section 5 of the California Constitution currently provides that a political party which participated in a primary election for a partisan office has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party's candidates.
If approved by the voters on the June 2010 Primary Ballot (effective for the June 2012 Statewide Primary Election), SCA 4 would repeal this provision and replace it with a “top-two” primary system. All candidates, regardless of party affiliation, would be listed on a single ballot at primary elections for state and congressional offices. All voters, regardless of party affiliation, would be permitted to vote for any one of the candidates for any given office. Only the two candidates who receive the greatest number of votes (even if one of the two receives an outright majority) at the primary would appear on a general election ballot for that office. It would be possible for the top two candidates to be from the same political party. SCA 4 would not affect non-partisan races, central committee races or the Presidential Primary (the next Presidential Primary is scheduled for February 2012).
The Constitutional Question
Given that the U.S. Supreme Court has already overturned one attempt by California to establish a blanket primary, the question has been raised as to what makes SCA 4 different such that it will not also be overturned? To answer to this question, the proponents point to the recent U.S. Court decision in Washington State Grange v. Washington State Republican Party et al. upholding Washington’s top-two primary system. Justice Clarence Thomas, writing the opinion for the majority, argued that because this primary system did not specifically select the nominee for each party, it did not violate the right of political parties to enjoy the freedom of association. In other words, it is not a situation where voters, regardless of party affiliations, are nominating the general election candidates for a party that may not be their own. In contrast, Prop 198’s blanket primary did not choose the top two finishers, but instead choose the top finishers from each party. In this case, Democratic voters could choose the Republican nominee for a given office and vice versa. The court ruled that this did violate a political party’s First Amendment right to freedom of association.
Pros and Cons of the Open Primary
Opponents of the open primary believe that the open primary leaves a party’s candidate nomination process vulnerable to manipulation and dilution. First, one party could organize its voters to vote in the other party's primary and choose the candidate that they most agree with or that they think is most vulnerable to defeat. Secondly, in the open primary, moderate and independent voters can vote in either party’s primary. This occurrence may dilute the vote of a particular party and lead to a nominee who does not fully represent the party’s views.
Proponents argue that an open primary would promote the election of moderate/centrist candidates, even in districts heavily gerrymandered to favor one party or the other. It would do so by encouraging candidates in the primary to appeal to a wide spectrum of voters in order to garner enough votes to be the top two candidates in the general election. Proponents also argue that an open primary would lead to more voter interest and participation, although there is some recent evidence that suggests that the opposite is true.
For more information on this report or other Election issues, contact Cory Botts, Senate Republican Office of Policy at 916/651-1501.
