Patterico's Pontifications

6/9/2010

California Reinvents the Primary

Filed under: Politics — DRJ @ 9:05 pm

[Guest post by DRJ]

From Allahpundit at Hot Air:

“When I heard they were voting on a proposition that would create an “open primary,” I thought that meant the standard model — i.e., any voter is free to vote in either primary regardless of party affiliation. I … was drastically wrong.

Despite opposition from party leaders, voters approved Proposition 14 by a 54%-46% margin. The measure would allow voters to pick candidates from any political party during a primary; only the top 2 candidates would advance to a general election, regardless of party.

Supporters of the initiative said it would result in greater voter choice, and that it would lead to more moderate picks for state legislature by bringing independent voters into the primary process. But opponents said the measure would hurt third parties and independent candidates, and that the smaller number of candidates on a general election ballot would end up costing voters a choice.

Follow the link for the legal implications. ***

Ace calls this the death of political parties, which is potentially true in deep blue or deep red states where you might end up with no Republican or Democrat on the ballot in the general election. But even so, I’m intrigued by the possibilities it’ll create for strategic voting.”

Some like it and some don’t. Aphrael is one who likes it. So is California ahead of the curve or over the cliff?

– DRJ

66 Comments

  1. I was the inspector for my precinct in L.A. yesterday. The ignorance and entitlement of many of the voters is staggering.

    Like so many other considerations that have bankrupted this state and county, this was just one more example of the ignorant chafing at anything that denies them the ability to do what they want without limit.

    This was as classic a Pogo (the enemy is us) moment as I’ve seen.

    Comment by Ed from SFV (f0e1cb) — 6/9/2010 @ 9:14 pm

  2. I’m inclined to both (leading the pack and over the cliff, reminds me of the Disney Lemmings.)

    Comment by htom (412a17) — 6/9/2010 @ 9:18 pm

  3. I don’t see any obvious way that this is susceptible to “strategic voting”, by which I mean choosing to vote for someone other than the guy you really want because it’s to your benefit to do so.

    In open primaries, in the traditional sense of them, that’s a real concern. You cross the fence and vote for the worst, most unelectable candidate running for the other party in the primary so that they get creamed in the general election. But in this “jungle primary” approach, if you vote for someone terrible of the other persuasion you risk depriving your own favorite of enough votes to make it into the top two. Instead of having your guy facing an idiot on the other side, you could end up with that idiot plus the other side’s best guy, and your guy not there at all.

    Comment by Steven Den Beste (99cfa1) — 6/9/2010 @ 9:18 pm

  4. This is a poorly thought out measure that will damage the state. California 50 years ago had open primaries, real open primaries. I remember when Goodwin Knight, a Republican governor, won both the Democrat and Republican primaries. That was in the days that California was well run and people were responsible with their votes.

    Eventually, that system was abandoned and now we have something very different. This is not open primaries. It is a system in which the dominant party can exclude its rivals. That is why Democrats supported this measure. They will run the state off the cliff before the sleepy, stoned electorate realizes what happened.

    Comment by Mike K (82f374) — 6/9/2010 @ 9:21 pm

  5. I cannot think of a reason why this would increase choice. In a state that is heavily Red or Blue, I cannot see how this would do anything other than limit choices and consolidate power to the majority.

    Comment by JD (de02cc) — 6/9/2010 @ 9:24 pm

  6. This is the system we have in Louisiana, and in fact it’s worked fairly well for us in modern times. It’s not perfect, but of course no system is. The biggest danger is that you can wind up with 2 extremists (of opposite stripes) in a run-off, if the moderate vote is split between more than 1 candidate.

    This type of negative outcome is best (or worst) illustrated by the “vote for the crook, it’s important” election, when corrupt former governor Edwin Edwards and white supremacist David Duke wound up edging out incumbent governor Buddy Roemer for the top 2 spots in the open primary (sometimes called a “jungle primary”). Edwards and Duke each got a bit over 30%, while incumbent Buddy Roemer came in 3rd with 27%. Had Clyde Holloway, a recently elected Congressman, not been in the race, his 5% of the vote would probably have gone to Roemer, and put Roemer in the run-off instead of Duke.

    Hard to say how the practice will work in California. If relatively moderate folks can stick together and settle on just one or two candidates, they could wind up doing well. On the other hand, if lots of candidates jump into the primary, the 2 run-off candidates might both have only 10 or 15% of the vote.

    Comment by PatHMV (c34b06) — 6/9/2010 @ 9:35 pm

  7. This state is already over the cliff and rapidly falling into a financial abyss. The reason is the outsize influence of interest groups including public employee unions.

    Changing the primary election system is just rearranging deck chairs on the Titanic. Well financed candidates prepared to do the bidding of their campaign donors will now be able to pose as Independents.

    Comment by Stu707 (0981d5) — 6/9/2010 @ 9:40 pm

  8. Proposition 14 was advertised as increasing choice — when in fact it does the exact opposite.

    I expect that when the voters realize they’ve been played for suckers, it will be overturned in the next 4-8 years.

    Comment by aunursa (484069) — 6/9/2010 @ 9:43 pm

  9. aunursa, how exactly does this system reduce choice for the voters?

    Comment by PatHMV (c34b06) — 6/9/2010 @ 9:48 pm

  10. Washington already has this and it’s a PITA. You don’t know the party affiliation, so you have to really dig hard – many won’t do that and won’t vote if it’s that hard. It ultimately preferences the motivated (who will research) rather than than the average voter; exactly the opposite of what it pretends to advocate.

    Comment by Jeff Weimer (952d52) — 6/9/2010 @ 10:00 pm

  11. They won’t put party ID? In Louisiana, the ballot does show party ID. That does seem rather stupid.

    Comment by PatHMV (c34b06) — 6/9/2010 @ 10:17 pm

  12. I sometimes wonder why I live in this state. Possibly the best example of the inmates running the asylum that has ever existed.

    Comment by eric (f91c38) — 6/9/2010 @ 10:34 pm

  13. What seems odd is this: the primary is for the party members to pick their candidate. I don’t know why the general populace is asked to do this – the general election is to pick the final winner.

    We should return to caucuses and smoke-filled rooms. Seriously. That way we’d have party candidates.

    Comment by steve miller (3248d7) — 6/9/2010 @ 10:56 pm

  14. With all the voters in California trying to make their state an Americanized version of Greece intermingled with a bit of Mexico and Spain, the outcome may be elections comprised of liberal candidates running against ultra-liberal candidates. Or sort of what one sees in the non-partisan races in LA city elections.

    Comment by Mark (411533) — 6/9/2010 @ 11:37 pm

  15. if the “independent” and “undecided” voters want to have a say in the primary election, that’s easy: pick a fing party.

    don’t want to or can’t be bothered, or whatever BS excuse you have handy? STFU and vote in the general election.

    this is yet another exercise in stupidity, and anyone who supported it wasn’t thinking, unless they were and had evil in mind.

    hopefully the courts will overthrow this as fast as they did 187.

    (yeah, right…..)

    Comment by redc1c4 (fb8750) — 6/10/2010 @ 12:04 am

  16. Some thoughts….
    I have expressed my opposition to this previously, as I believe it is a violation of the Freedom of Association implied in both the Speech and Assembly clauses of the First Amendment, and is an imposition by the majority upon the minority.

    Also, what with the explosion in the level of funding in personally-financed campaigns, this will lead to the battle of the checkbooks in primaries, squeezing out minor candidates who may, or may not, be relevant and attractive to the electorate (like the guy who won the SC Dem Senatorial Primary without campaigning and without raising or spending any money).
    It is possible that in this years primary for governor, with the amount of money spent by Whittman and Poizner, in the new system Jerry Brown might not have gotten enough votes to be on the Nov ballot.

    BTW, Mike K, that early system was called “cross filing”, and was dismantled by the Dems when they took control of Sacramento following the 1958 victory of Pat Brown.
    It is interesting that no-one has tried to bring it back, but instead they’ve tried first the “open primary” that both major parties – and some minor one’s too – filed suit against (and prevailed at the Supreme Court), and now this “blanket” primary.

    It seems the one constant that the Era of the Sixties brought us is constant fiddling with the electoral process. The Dems have done it constantly in their Presidential selection process because they have never been happy with the results (until they win in Nov), and they constantly fiddle with the process at the State and Local levels to ensure their electoral success (Gerrymandering is just one of the aspects of all this fiddling – the Sec of State Project is another thrust to ensure that they can unduly influence the outcome).

    Comment by AD - RtR/OS! (f15c7c) — 6/10/2010 @ 12:08 am

  17. Comment by redc1c4 — 6/10/2010 @ 12:04 am

    187 was found unconstitutional by one Federal District Court judge. Her ruling was never adjudicated because Gov. Gray Davis would not pursue an appeal to the Circuit Court, or beyond, and no-one else had “standing” to appeal.

    Comment by AD - RtR/OS! (f15c7c) — 6/10/2010 @ 12:12 am

  18. So if I understand this crazy plan correctly, this really isn’t about open primary voting so much as it is about limiting ballot access in november.

    For example, let’s say that the Democratic Party decided they would start choosing their candidates by caucus instead of a primary vote. It wouldn’t do them any good, because no votes in the new so-called “primary” = no place on the november ballot! What insanity.

    So what we really have is not the former system of a primary election followed by the actual election in november. Instead we now have a two-part final election, with the first part to eliminate all but the two top candidates for each office.

    Am I getting this wrong?

    Comment by Brad (2cebab) — 6/10/2010 @ 12:19 am

  19. Brad, there seems to be some controversy as to whether or not the parties could return to a caucus/convention system in lieu of the Primary and still put their candidates on the ballot in November.
    It will surely be an interesting six-months leading up to the activation of this new process – or as Progressives would describe it if it was advanced by Republicans: scheme!

    Comment by AD - RtR/OS! (f15c7c) — 6/10/2010 @ 12:32 am

  20. PatHMV: aunursa, how exactly does this system reduce choice for the voter?

    The general election:

    Voters will be limited to two candidates, rather than the current slate, which is typically 6 or more for the high-profile races and 3-4 for the others.

    If you’re unhappy with both candidates, you won’t be able to express your disappointment except by write-in.

    In most races the Libertarian Party, Green Party, and other minor party candidates will have virtually no chance to APPEAR on the ballot, much less win. Members of those parties would be forced to write in their choices, which is more time-consuming.

    Party affiliation will not be listed on the ballot. If you want to vote for the Democrat, or the Republican, you won’t be able to determine that by the ballot.

    Comment by aunursa (484069) — 6/10/2010 @ 5:15 am

  21. Webmaster: I’m including paragraph breaks, but they don’t appear in the post.

    Comment by aunursa (484069) — 6/10/2010 @ 5:15 am

  22. The Republican and Democrat parties will select a candidate before the primary in order to ensure that the party will be represented on the general election ballot.

    Comment by aunursa (484069) — 6/10/2010 @ 5:17 am

  23. Webmaster: I’m including paragraph breaks, but they don’t appear in the post.
    Comment by aunursa — 6/10/2010 @ 5:15 am

    They show up immediately for everyone else. You’ll see them after you refresh. The tech folks should be re-enabling the mods very soon so things get back to normal. On the plus side, loading times and accessibility are greatly improved. We’ll end up in a far better environment than we had before, once the last bug is squashed.

    Comment by Stashiu3 (44da70) — 6/10/2010 @ 5:28 am

  24. So clearly, this is designed by the Democrats of California to prevent upcoming ‘vote dilution’ that might lose them seats. With only two candidates, you don’t lose that 3% or so that votes Green and Communist and Socialist or so. Or so they believe.

    Comment by luagha (78d913) — 6/10/2010 @ 5:51 am

  25. This is pretty much the exact same system Louisianna has used for decades — which is why I voted against it. The notion of using the Louisianna system to stick it to the power structure and fight the special interests in our state would be laughable if I had a more macabre sense of humor.

    Comment by Sean P (6f6c60) — 6/10/2010 @ 5:55 am

  26. Some friends of mine and I have mused about a system where each voter can give EITHER a vote “for” or “against” a given candidate. An “against” (e.g. no confidence) vote would cancel out a positive.

    If there are only two candidates, and you only require a majority “yes” count out of a winning candidate, there’s no difference: a vote against “B” equals a vote for “A”. But you could force a winner to have the majority of the votes cast (where “nos” are counted in the total just like “yes”) so that enough no confidence votes could mean there is no winner and a new vote must be taken. Not sure that would be any real help aside from allowing voters to say “we don’t like any of you jackasses, try again”.

    But where the system would really work is in races with 3 or more candidates, where you no longer have opposition to candidate “A” splitting votes between “B” and “C” such that a third-party just becomes a spoiler to the weaker of the two majors. Instead, voters who really do have a problem with “A” can vote against “A” directly.

    Of course none of this really applies to the fact that the average voter is too stupid to think this thru…nor have I probably considered all the ramifications. But it sounds good at least.

    Comment by rtrski (336865) — 6/10/2010 @ 7:38 am

  27. anursa… but the libertarian, green, etc. parties WILL appear on the primary ballot, which is not a party primary but an actual, open-to-all election (I presume it will be like La., where if you get 50% + 1 in the primary, there is no run-off election). Those minor-party candidates have no chance of winning in today’s general election either, so this plan hardly makes their position worse.

    As for violating the right of association, no, this doesn’t do that. The sort of “open primary” where anybody can vote in any party’s election, regardless of their party registration, THAT does interfere with the freedom of association, because non-party members are allowed to impact the party’s selection of an official candidate to represent that party’s views. But here, there is NO official party candidate being selected for any party at all. Thus, no Democrats are choosing the GOP candidate, and no GOP voters are choosing the Democrat candidate.

    The 2-party system is not protected by the Constitution; there’s no absolute right to have a party system at all, even.

    If a party wants to caucus ahead of time and agree to support one and only one candidate on the primary ballot, it should be able to do that… but it wouldn’t and shouldn’t be able to stop anybody at all from choosing to run in that primary. If lots of Republican candidates decide to run, then the party can either sit back and watch what happens or it can decide to try to pick a winner, through its own internal processes, and do its best to influence the election outcome through campaigning.

    Comment by PatHMV (140f2a) — 6/10/2010 @ 8:45 am

  28. Sean P… the Louisiana system has been quite effective at giving our state a lot of populist politicians who are very attuned to giving the people what they want. And we have relatively low taxes and a pretty small government here, and a balanced budget mandate in our constitution. California sure as hell could take a few lessons from us at the moment.

    Comment by PatHMV (140f2a) — 6/10/2010 @ 8:49 am

  29. Since Calif. is so heavily Democratic, this signals the end of Republicans in statewide offices, such as Governor. The only Republicans in state government will be locally elected legislators such as from Orange County.

    Comment by jwarner (0a2a75) — 6/10/2010 @ 9:15 am

  30. I’m with PatHMV.

    I don’t believe I should have to associate myself with a private, money-making entity in order to vote in an election I’ve paid for with my tax dollars.
    If the parties want to manipulate the system to protect themselves, they can pay for it.

    As for limiting choice- look at the primaries from Tuesday. Most of the Dem incumbents ran unopposed in their primaries.
    In 2008, my Congressman ran completely unopposed. There was not anyone from any party who even bothered to get his name on the ballot.
    So, choice is already limited. I’m absolutely willing to see how this changes things.

    Comment by MayBee (5a76ab) — 6/10/2010 @ 9:23 am

  31. Since Calif. is so heavily Democratic, this signals the end of Republicans in statewide offices, such as Governor.

    I’m not sure the numbers really show that. Meg Whitman (1,105,855) got almost as many votes as Jerry Brown (1,481,302), and Steve Poizner (463,262) was 3rd. The nearest Dem challenger had 71,709.
    Democrats and Independents can vote in Dem primary, while only Republicans can vote in the GOP primary. Would some of those independents have voted for Whitman, given the chance?

    Boxer got 1,429,709 votes in the Senate race. Fiorina was second with 955,075. Campbell and Devore both got more votes than the next highest Dem.

    If Democrats are so strong that they can get two candidates to place above any other party, isn’t that a pretty clear indication that the other party has pretty much no chance of winning the general anyway?
    The numbers show that right now, they are for the most part just not that strong.

    Comment by MayBee (5a76ab) — 6/10/2010 @ 9:38 am

  32. MayBee,

    Both the Democratic and Republican parties opened up their California Primaries this year. Unlike past elections, DTS voters could vote in either the R or D primaries.

    As for this open primary, it is definitely an attack on parties. What the final results will be have yet to be seen, but I imagine that — like term limits — the results will be disappointing.

    Comment by Christian (3290f5) — 6/10/2010 @ 9:51 am

  33. As for this open primary, it is definitely an attack on parties. What the final results will be have yet to be seen, but I imagine that — like term limits — the results will be disappointing.

    I have no problem attacking the parties. I don’t think it’s the job of the taxpayer to support them.

    I’m sure the results could be disappointing, but nothing is as disappointing as seeing Henry Waxman running completely unopposed.

    As for the GOP opening up to DTS this time- that just illustrates the absurdity of the current system.

    Comment by MayBee (5a76ab) — 6/10/2010 @ 10:02 am

  34. I have no problem with an attack on the parties. The Republicans are only slightly less noxious than the Dems.

    Comment by JD (0f9c01) — 6/10/2010 @ 10:15 am

  35. The good news is that I cannot envision any way this new system can be manipulated by legions of voters (say for example union members)directed by a party (say, the Dems)to pick off opponents in the primaries. Did anyone notice that turnout in LA yesterday was ~25%? Wouldn’t take too many directed voters to “nudge” the outcome one way or the other.

    Comment by in_awe (44fed5) — 6/10/2010 @ 10:42 am

  36. That is why Democrats supported this measure. They will run the state off the cliff before the sleepy, stoned electorate realizes what happened.

    Before heading back up, gotta hit rock-bottom first, right?

    Comment by Blacque Jacques Shellacque (9fe4a5) — 6/10/2010 @ 10:46 am

  37. Here is the argument that I made against the open primary on aphrael’s Jury Talks Back post.

    Comment by JVW (792378) — 6/10/2010 @ 10:50 am

  38. What’s so sad is that Kaus has shown that without the party’s strong support, you will simply be a non factor in California politics. That state is dominated by the unions and the political parties.

    I would love the idea of a reform that lets people who do not nearly fit in a party challenge the status quo on a common sense platform. Kaus has done a better job of such a campaign than almost anyone I’ve seen, and he failed (I should say, California Democrats failed).

    so this reform, which strongly interferes with freedom of association, is desperation. I think term limits and other creative ideas to break the cycle are well intentioned, and I hope they work out, but the people have to actually want to choose better sorts of leaders for any of these reforms to make a difference. We already have republic we deserve.

    Comment by Dustin (b54cdc) — 6/10/2010 @ 11:01 am

  39. JD!!!!

    I don’t know, Dustin. I’m a registered Republican because I wanted to vote in the Presidential Primary. I don’t generally consider myself a Republican and hadn’t registered as one prior to moving to California. I don’t like it being on the public records that I’m a registered Republican for all my neighbors to see.

    With the new system, I could have voted for Kaus AND Whitman AND whomever was running against Waxman. I think this will encourage choice.

    Maybe I’ll be wrong.

    Comment by MayBee (5a76ab) — 6/10/2010 @ 11:08 am

  40. Maybee,

    At this point I think both official party organizations are criminal conspiracies at the top, with innocent members being duped by the leadership. Anyone running with the full backing of either party is tainted in my eyes. I would bet my entire income for a year that an objective look at all the internal emails and memos for either party would be enough to indict most of the leadership under RICO.

    Comment by Stashiu3 (44da70) — 6/10/2010 @ 11:17 am

  41. Maybee, you have a very good point. That’s a good rationale for a traditional open primary, too. Choice is generally a good idea for elections.

    I just think folks like you cannot make a difference in California politics. I probably should switch to the brand of coffee that puts me in a better mood.

    I don’t really like open primaries. This strikes me as an attempt to gain your choice while avoiding some of the dirty trick issues, but I think the problem rests with the voters and perhaps their education and media. With California’s more direct democracy, it’s clear to me that most of that state insists on having and eating cake.

    Comment by Dustin (b54cdc) — 6/10/2010 @ 11:18 am

  42. Dustin, remember that Initiative, Recall, and Referendum were the benchmarks of the Early-20th Century Progressive Movement, championed in CA by Hiram Johnson when he was Governor and later Senator.

    Comment by AD - RtR/OS! (e78fff) — 6/10/2010 @ 11:34 am

  43. MayBee:

    this was an extremely low turnout primary with no interesting races (other than AG, which nobody pays attention to) on the Democratic side. Republican turnout was much higher than Democratic turnout.

    The latest voter registration report shows:

    7,553,109 Democrat 44.49%
    5,228,320 Republican 30.8%
    397,136 AIP
    112,655 Green
    86,675 Libertarian
    56,587 P&F
    118,799 misc other parties
    3,423,750 Decline to State (20.17%)

    Comment by aphrael (e0cdc9) — 6/10/2010 @ 12:40 pm

  44. MayBee:

    I would certainly have voted for Tom Campbell under this system, instead of Mickey Kaus.

    That is basically the intent of the initiative: that the 20% who aren’t part of either party, plus the liberal republicans and the conservative democrats, can start getting their candidates on the general election ballot by voting for them in the primary – which they basically cannot *effectively* do now.

    Comment by aphrael (e0cdc9) — 6/10/2010 @ 12:42 pm

  45. Thanks, aphrael. I was very happy to see this pass. If it doesn’t work, I’ll be very happy to see it go away again.

    Comment by MayBee (5a76ab) — 6/10/2010 @ 2:13 pm

  46. MayBee: the libertarian, green, etc. parties WILL appear on the primary ballot, which is not a party primary but an actual, open-to-all election (I presume it will be like La., where if you get 50% + 1 in the primary, there is no run-off election). Those minor-party candidates have no chance of winning in today’s general election either, so this plan hardly makes their position worse

    The initiative was promoted as increasing voters’ choices, but it does the exact opposite in the general election. None of the parties will appear on the primary ballot — voters will not be able to determine party affiliation by looking at the ballot.

    If advertisements in support of 14 had made clear that it would limit the choices in the general election, I would be more accepting. Rather, I suspect that many of those who voted “Yes” were not aware that it will in fact limit choice.

    Comment by aunursa (484069) — 6/10/2010 @ 7:18 pm

  47. Dustin, will you please explain to me exactly how you think this primary system interferes with the freedom of association?

    Comment by PatHMV (c34b06) — 6/10/2010 @ 8:29 pm

  48. PatHMV, I voted for it, but it does make the position of third parties somewhat worse; I swallowed that as a price I was willing to pay.

    The problem is that third party candidates qualify for the ballot in one of two ways: either by having some percentage of registered voters affiliate with the party, or by having the party’s candidate get at least x% of the votes cast in the preceding gubernatorial general election.

    The odds are that it will now be very, very rare for a minor party’s candidate to get *any* votes in the previous gubernatorial general election.

    The law *should* have modified that to be a percentage of votes in the preceding gubernatorial primary, but it didn’t. That’s a bug in the law.

    I would expect some lawyer for a third party to argue intent as a grounds for courts reading that modification into the law, but I don’t know the details of the election code (and of the legislative history) enough to put together the argument for them.

    Maybee: that’s basically my approach. Lets try it for a couple of elections, see how it works, and re-evaluate.

    Comment by aphrael (04e965) — 6/10/2010 @ 8:34 pm

  49. Yeah, it’s only going to be a temporary suppression of the voting rights as we’ve come to know them.
    Speaking of which, will this pass muster with the DoJ on Voting Rights? Didn’t we actually elect an Assemblywoman from the Peace & Freedom Party once, and now that possibility is pretty much gone?

    Comment by AD - RtR/OS! (e78fff) — 6/10/2010 @ 8:50 pm

  50. Pathmv,

    I find the ability of people to assemble and determine together how they shall order their political party, how they shall present candidates for office if they wish to, and whether they can have their lawful decision to nominate a candidate modified by those they choose not to associate with, to be sacred freedom of association, a God given right. Even if it’s not popular sometimes.

    I do not think this view is compatible with Prop 14. I get the point that California is broken. I understand that political partisanship itself is considered a bad thing by many. This proposition is hardly a solution to California’s political problems, but even if it were, I don’t understand how it can’t be viewed as in conflict with freedom of association.

    I don’t pretend this freedom is absolute, however. Let California do what it wants. I hope this works well for them. It’s contrary to my preferences, and I would fight it in my state.

    Comment by Dustin (b54cdc) — 6/10/2010 @ 9:27 pm

  51. AD – RtR/OS – we did. under the current system, I think we’d end up with a runoff between the P&F candidate and whoever came in second. I don’t remember if it was a Republican or a Democrat at that time.

    Dustin – unlike the last time we tried this, the party’s ability to select their candidates is being worked around rather than contravened. The people on the general election ballot are *not* party nominees, and party nomination no longer guarantees you a spot on the general election ballot. They’re just the two most popular candidates from the primary … and may not even have party labels attached to them on the general election ballot.

    So it doesn’t infringe the freedom of the parties to associate; it simply removes their priviliged position vis-a-vis ballot access.

    Comment by aphrael (9e8ccd) — 6/10/2010 @ 11:45 pm

  52. Dustin, this primary system doesn’t do anything to political parties. It removes the RIGHT of political parties to appear in the “final” election, but that’s it. Your party can continue to meet and select its own leaders. If you can enforce party discipline sufficiently, your party can meet ahead of time, through its own internal mechanisms, to decide who the official party candidate will be. It’s just that that official party candidate gets no particular sanction from the state. That selection of your party’s candidate is in NO WAY “modified by those they choose not to associate with.” This is NOT an “open primary” where Democrat voters can come in to vote in the Republican primary. That does, I agree, violate freedom of association.

    Please don’t get all huffy about the freedom of association. I value it every bit as highly as you do. What I don’t agree, though, is that this primary process does a single thing to infringe upon your freedom of association. All it does is remove the state-provided guarantee that the two major parties will be on the “final” election ballot. That’s it. Freedom of Association does not require that the state recognize and enshrine a two-party system, or even to grant any particular election preferences to any parties.

    Comment by PatHMV (140f2a) — 6/11/2010 @ 8:09 am

  53. “…the party’s ability to select their candidates is being worked around rather than contravened…”

    And just how is a “work around” not a restriction, or contravention, of Rights that were upheld by SCOTUS in declaring the “Open Primary” unconstitutional?

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 9:08 am

  54. AD – the last time we tried this, the system was: every voter votes a blanket primary ballot, and the top candidate in each party goes to the general election as the candidate of that party.

    The Supreme Court said that the right of the party to choose who to associate with was violated by that.

    This plan says: all voters vote a ballot with all candidates, and the top two candidates total go to the general election ballot, regardless of their political party. The *party* is not required to associate with them – the candidates do not represent the party and the party.

    Candidates are allowed to state a political party preference *before the primary*, and that preference will appear on the ballot. That provision may violate freedom of association, but that position is severable – that is, the bit about party preference can be struck out without striking the overall plan.

    A similar plan exists in Washington and was upheld by the US Supreme Court as not violating the association rights of parties.

    (The key thing really seems to be: under the blanket primary, the parties were required to allow members of other parties choose *their nominee*. Under this primary, the parties don’t have nominees on the general election ballot; the general election consists of two candidates chosen by all voters from among all of the candidates who appeared on the primary. Parties can have official nominees, selected by whatever system they want that doesn’t involve a state-funded election … but those nominees are not guaranteed a place on the ballot).

    Comment by aphrael (73ebe9) — 6/11/2010 @ 9:21 am

  55. Oh, I’m sorry, I was under the impression that our previous expedition into this wilderness was known as the “Open Primary”, and that Prop-14 is bringing us the “Blanket Primary”.
    And, unless Prop-14 is absolutely identical to what exists in Washington State, there is no assurance that SCOTUS will find it constitutional as well.
    “…Parties can have official nominees, selected by whatever system they want that doesn’t involve a state-funded election … but those nominees are not guaranteed a place on the ballot).”
    And this is not a violation of the Constitution how?

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 10:03 am

  56. the constitution doesn’t guarantee parties an automatic place on the ballot.

    nor does freedom of association imply an automatic place on the ballot.

    what it does require is that the procedures be fair and non-discriminatory, which they are here.

    Comment by aphrael (e0cdc9) — 6/11/2010 @ 10:37 am

  57. Well, that’s your opinion.
    I’ll wait to hear what the Robed Wonders have to say,
    since my opinion is that those proceedures are very discriminatory,
    and limiting of Liberty & Freedom.
    And, I don’t think I’m alone in that holding.

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 10:42 am

  58. Why is it unconstitutional for parties to not have a guaranteed place on the ballot?

    This is basically the same system we use for city council and county supervisor elections: open first round, two-member second round.

    I think there are lots of good policy reasons to criticize this, but I don’t see a constitutional argument.

    Maybe you could put together something using procedural due process, but I think it would be a massive stretch.

    (Note that I’ve read Washington State Grange v. Washington State Republican Party, and you can too. Justice Thomas wrote the 7-2 majority opinion; Justices Scalia and Kennedy dissented.

    It described the Washingon system as:
    “The People’s Choice Initiative of 2004, or Initiative 872 (I–872), provides that candidates for office shall be identified on the ballot by their self-designated “party preference”; that voters may vote for any candidate; and that the top two votegetters for each office, regardless of party preference, advance to the general election.”

    That sounds basically identical to the new California system, which was modelled on the Washington system precisely to avoid a successful legal challenge.

    The court addressed the freedom of association argument like this:

    The flaw in this argument is that, unlike the California primary, the I–872 primary does not, by its terms, choose parties’ nominees. The essence of nomination—the choice of a party representative—does not occur under I–872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” Wash. Admin. Code §434–262–012. The top two candidates from the primary election proceed to the general election regardless of their party preferences. Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because I–872 repealed Washington’s prior regulations governing party nominations.7

    Respondents counter that, even if the I–872 primary does not actually choose parties’ nominees, it nevertheless burdens their associational rights because voters will assume that candidates on the general election ballot are the nominees of their preferred parties. This brings us to the heart of respondents’ case—and to the fatal flaw in their argument. At bottom, respondents’ objection to I–872 is that voters will be confused by candidates’ party-preference designations. Respondents’ arguments are largely variations on this theme. Thus, they argue that even if voters do not assume that candidates on the general election ballot are the nominees of their parties, they will at least assume that the parties associate with, and approve of, them. This, they say, compels them to associate with candidates they do not endorse, alters the messages they wish to convey,and forces them to engage in counterspeech to disassociate themselves from the candidates and their positions on the issues.

    We reject each of these contentions for the same reason: They all depend, not on any facial requirement of I–872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. But respondents’ assertion that voters will misinterpret the party-preference designation is sheer speculation. It “depends upon the belief that voters can be ‘misled’ by party labels. But ‘[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.’ ” Tashjian, 479 U. S., at 220 (quoting Anderson, 460 U. S., at 797). There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate. See New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13–14 (1988) (rejecting a facial challenge to a law regulating club membership and noting that “[w]e could hardly hold otherwise on the record before us, which contains no specific evidence on the characteristics of any club covered by the [l]aw”). This strikes us as especially true here, given that it was the voters of Washington themselves, rather than their elected representatives, who enacted I–872.

    Of course, it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties. But these cases involve a facial challenge, and we cannot strike down I–872 on its face based on the mere possibility of voter confusion. See Yazoo,226 U. S., at 219 (“[T]his court must deal with the case in hand and not with imaginary ones”); Pullman Co. v. Knott, 235 U. S. 23, 26 (1914) (A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are”). Because respondents brought their suit as a facial challenge, we have no evidentiary record against which to assess their assertions that voters will be confused. See Timmons,520 U. S., at 375–376 (Stevens, J., dissenting) (rejecting judgments based on “imaginative theoretical sources of voter confusion” and “entirely hypothetical” outcomes). Indeed, because I–872 has never been implemented, we do not even have ballots indicating how party preference will be displayed. It stands to reason that whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot. The Court of Appeals assumed that the ballot would not place abbreviations like “ ‘D’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and “ ‘Rep.’ ” after the names of candidates, but would instead “clearly state that a particular candidate ‘prefers’ a particular party.” 460 F. 3d, at 1121, n. 20. It thought that even such a clear statement did too little to eliminate the risk of voter confusion.

    But we see no reason to stop there. As long as we are speculating about the form of the ballot—and we can do no more than speculate in this facial challenge—we must, in fairness to the voters of the State of Washington who enacted I–872 and in deference to the executive and judicial officials who are charged with implementing it, ask whether the ballot could conceivably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First Amendment . See Ayotte, 546 U. S., at 329 (noting that courts should not nullify more of a state law than necessary so as to avoid frustrating the intent of the people and their duly elected representatives); Ward v. Rock Against Racism, 491 U. S. 781, 795–796 (1989) (“ ‘[I]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.’ ” (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , n. 5 (1982))).

    It is not difficult to conceive of such a ballot. For example, petitioners propose that the actual I–872 ballot could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party. They also suggest that the ballots might note preference in the form of a candidate statement that emphasizes the candidate’s personal determination rather than the party’s acceptance of the candidate, such as “my party preference is the Republican Party.” Additionally, the State could decide to educate the public about the new primary ballots through advertising or explanatory materials mailed to voters along with their ballots.8 We are satisfied that there are a variety of ways in which the State could implement I–872 that would eliminate any real threat of voter confusion. And without the specter of widespread voter confusion, respondents’ arguments about forced association9 and compelled speech10 fall flat.

    Our conclusion that these implementations of I–872 would be consistent with the First Amendment is fatal to respondents’ facial challenge. See Schall v. Martin, 467 U. S. 253, 264 (1984) (a facial challenge fails where “at least some” constitutional applications exist). Each of their arguments rests on factual assumptions about voter confusion, and each fails for the same reason: In the absence of evidence, we cannot assume that Washington’s voters will be misled. See Jones,530 U. S., at 600 (Stevens, J., dissenting) (“[A]n empirically debatable assumption . . . is too thin a reed to support a credible First Amendment distinction” between permissible and impermissible burdens on association). That factual determination must await an as-applied challenge. On its face, I–872 does not impose any severe burden on respondents’ associational rights.

    Comment by aphrael (e0cdc9) — 6/11/2010 @ 11:02 am

  59. In CA (as I seem to remember in my dotage) we do not have “partisan” elections for office below the State Legislature, so that is a non-argument. And, for those “non-partisan” elections, if any candidate receives 50%+1 in the initial round, there is no further contest.

    Color me unconvinced.

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 11:13 am

  60. I understand that you’re unconvinced.

    I don’t understand your argument.

    Comment by aphrael (e0cdc9) — 6/11/2010 @ 11:23 am

  61. aphrael, under the new California system, what happens if one candidate gets 50% + 1 in the primary? Is there still a run-off general election?

    Comment by PatHMV (140f2a) — 6/11/2010 @ 11:54 am

  62. Pat….YES!
    Here is the language inserted into the CA Constitution:
    Art II-5-a…
    “… A voter-nomination primary election shall be conducted to select the candidates for congressional and state elective offices in California. All voters may vote at a voter-nominated primary election for any candidate for congressional and state elective office without regard to the political party preference disclosed by the candidate or the voter, provided that the voter is otherwise qualified to vote for candidates for the office in question. The candidates who are the top two vote-getters at a voter-nominated primary election for a congressional or state elective office shall, regardless of party preference, compete in the ensuing general election…”

    As you can see, it is a non-election election, since all it does is select the two candidates that will advance to the General Election. This is markedly different from LA, where a 50%+1 result obviates a run-off. It also overturns precedence in CA in that regard as to non-partisan elections, because now, all contests with the exception for President, and party committees, are “Non-Partisan” – including Congress and Senator.

    Here’s a question for our Constitutional Scholars:
    What happens if Congress, under its’ authority in Article I, Section 4, steps in to change this?

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 12:26 pm

  63. …I also find it interesting that I am aligned with two voices that I usually find issue with, on this matter:
    Steven Greenhut of the Pacifice Research Institute ( a pretty much doctrinaire Libertarian and frequent columnist for the OCRegister), and the ACLU; and that aphrael is in opposition to that same ACLU on this matter.

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 12:39 pm

  64. AD – Congress can only change it for federal offices (congress/senate), not state legislative offices.

    Which is to say: california would then have different systems for federal offices and state offices.

    Comment by aphrael (e0cdc9) — 6/11/2010 @ 12:52 pm

  65. Yes, a, I understand that Congress’ authority under I-4, only extends to the election of Federal offices.
    And, we will have two different systems for the election of just Federal offices under Prop-14, since elections for the Senate and House shall be non-partisan, but elections for Presidential Electors shall be partisan.

    Comment by AD - RtR/OS! (d6c711) — 6/11/2010 @ 1:34 pm

  66. aphrael… Louisiana currently has different systems for federal and state offices. The timing of our system was tossed out by a federal court because it sometimes resulted in our Congressmen and Senators not being elected on the same day as everybody else’s, in contravention of the requirement that there be “an” election day. At first we dealt with that ruling by changing the date of our primaries, but then we switched to have traditional party primaries only for federal elections. But I think we’re in the process of switching back (haven’t looked carefully lately).

    Comment by PatHMV (c34b06) — 6/11/2010 @ 4:24 pm

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