But Not When It Counts: A Critique of Calif.’s Top-Two Primary

Let’s imagine there are three voters all in the same district: Mr. Blue, Mrs. White, and Mrs. Green.

  • Mr. Blue is a registered Democrat, and his favorite candidate is also a Democrat, Candidate L – a liberal. His second preference is Candidate M – a moderate Democrat.
  • Mrs. White is an independent, non-affiliated voter, and her preferred candidate is Candidate I, who is not endorsed by any party and is funding his campaign on his own. Her second favorite candidate is candidate M – the same moderate Democratic candidate who is Mr. Blue’s second choice.
  • Mrs. Green is a registered Green Party member, and her favorite candidate is a Green, Candidate G. Her second preference is Candidate L, Mr. Blue’s first choice, and her least favorite candidate is a conservative Republican contender, Candidate C.

Now, let’s suppose that an election in this largely moderate Democratic, yet still ideologically diverse district is held according to the rules of an open partisan primary, which allows all voters to participate in any one party’s primary contest. Here are the results from the June primary:

  • Mr. Blue votes for his preferred Candidate L, but Candidate M wins the Democratic primary and will appear on the general election ballot in November.
  • Mrs. White cannot vote for her preferred candidate because he is not involved in a partisan primary, so she votes in the Democratic primary for her second choice, Candidate M, which she is allowed to do under the open primary format.
  • Mrs. Green votes in the Green Party primary for Candidate G, who wins the party’s nomination.

When these voters visit the polling station in November, they have 5 options on the ballot for this one seat: (1) Democratic nominee Candidate M, (2) Green Party nominee Candidate G, (3) the self-funded independent Candidate I, (4) conservative Republican nominee Candidate C, and (5) a space for a write-in.

Now, let’s consider that the same voters in the same district cast their votes in the June primary under different rules – those of a nonpartisan, top-two primary, where each voter can vote for any candidate regardless of partisan (non-)affiliation. Let’s suppose that our voters vote for their top choices. Here is the at-large outcome of this June primary:

  • Candidate M receives 45% of the vote
  • Candidate I receives 23% of the vote
  • Candidate L receives 22% of the vote
  • Candidate C receives 8% of the vote
  • Candidate G receives 2% of the vote

Thus, when voters visit the polling station in November, they have exactly 2 options: (1) Candidate M or (2) Candidate I, as there is no space for a write-in.

Here is the crucial question: which of these two scenarios allows for voters to cast their ballots in a way that more closely aligns with their genuine preferences?

According to supporters of the top-two reform in California, the latter is preferable for one distinct reason: “At its core, nonpartisan primaries are about voting rights,” writes Steve Peace, co-founder of the Independent Voter Project. Peace co-authored the top-two primary measure in California.

More specifically, such primaries are said to protect the right of all citizens to vote in the primary election without having to belong to a private organization: i.e. a political party. Peace and others also claim that the top-two primary will precipitate several salutary political consequences, including the empowerment of moderates, greater political accountability, and increased voter turnout.

Chad Peace notes that despite a low turnout rate following the first implementation of the top-two primary in California in 2012, the case for top-two rests on the issue of empowering all voters, as the reform was “about giving all voters a meaningful vote when the most people vote: the general election.”

Let’s test that last claim. Looking again over our two hypothetical scenarios, in which general election – the one following the open partisan primary or the one following the nonpartisan top-two primary – do voters have a more meaningful vote?

In the first scenario, Mrs. White and Mrs. Green are happy, because they can both vote for their preferred candidates in the general election  – Candidate I and Candidate G, respectively, and while Mr. Blue is disappointed that Candidate M, his second preference, won the Democratic Party’s nomination, he still has a meaningful choice: he can vote for Candidate M, or he can vote for his top preference, Candidate L, as a write-in candidate.

In this scenario, even though Candidate M wins the general election (it is a moderate Democratic district, you’ll remember), each of these voters was able to cast a meaningful vote by voting for their preferred candidate (though they could certainly have chosen to do otherwise, such as by voting “strategically” for a second or even third preference with the hope of electing a stronger candidate to avoid a victory for a less-preferred candidate).

In the second scenario, however, it is only Mrs. White who is able to vote for her top choice in the general election, Candidate I. Mr. Blue voted for his second choice, Candidate M, while Mrs. Green, who was unable to cast a ballot for either of her preferred candidates, voted strategically for Candidate I (to do her best to keep Candidate M, whom she considers an invertebrate figure, out of office).

Now, let’s consider the claim in question: in which scenario do voters have a more meaningful vote where it counts, that is, in the general election?

The first scenario is the one that empowers all voters, as they can vote for their top choice if they want (that is, for a party nominee, a self-funded independent, or a write-in candidate). In the second scenario, only one voter, Mrs. White, got to vote for her preferred candidate, while Mr. Blue and Mrs. Green could not, especially since they did not have the choice for a write-in, which is the case in California since the top-two reform.

At first, it is somewhat surprising to see that those who usually decry partisanship and the entrenched political duopoly are in favor of an electoral arrangement that makes it easier for Democrats and Republicans to keep challengers off the ballot, especially given the added hurdle that requires statewide candidates in California from minor parties to collect 10,000 signatures (up from 150 prior to the reform) if they want to appear on the nonpartisan primary ballot, unless they can afford to pay an expensive fee instead.

As Ellen Brown, a former Green Party candidate in California has observed, minor party candidates struggled to make it even on to primary ballots since the implementation of top-two: between 1992 and 2010, minor party candidates appeared on an average 127 primary ballots per election cycle. In 2012, that number dropped to 17 for state and congressional primary ballots, and it fell again in 2014 to just 13.

No wonder the minor parties in the state took top-two to court.

Predictably, this heightened hurdle for primary ballot access and the promotion of only the top-two candidates to the general election strengthened the two-party system in two ways: it allowed, according to Ballot Access News editor Richard Winger, just 7 minor or independent candidates to appear on the November ballot for any partisan office in 2014, and it led to numerous cases in which the only two choices on the general election ballot were members of the same party.

At second glance, therefore, it becomes clear that the true enemy of the enacted top-two reform is not partisanship per se, but polarization, which Steve Peace writes, “is the consequence of being held hostage by the vocal minority of voters who disproportionately control lower turnout primary elections,” adding that, “Prop. 14 shifted that accountability to the broader, higher turnout general electorate.”

This comment reveals the real impetus of the top-two reform: it is not so much about empowering all voters when it counts – during the general election (as we have seen), but about empowering moderates. Peace, who refers to himself as a “radical moderate” and applauds the subsequent moderation of the Democratic caucus in the state legislature, would thus likely agree with the Washington Post’s suspicion that Prop. 14 “was mostly focused on giving moderates a chance to get elected.”

In this light, top-two reformers are not unlike the partisan defenders of closed primaries: the former favor an electoral model that empowers moderates (at the expense of “extremists” who now struggle to appear on primary or general election ballots), and the latter favor an electoral model that empowers the most loyal and doctrinaire members of either party and effectively ignores the voting power of moderates (who feel de facto excluded by the partisan and polarizing rhetoric from both sides) as well as independents (who are de jure excluded from participation in publicly funded closed primary contests).

Neither of these exclusionary and biased electoral models deserves the support of independents (who, let’s remember, represent an assemblage of moderates, extremists, and the ideologically inconsistent and unclassifiable), none of whom wants to have his or her vote mean any less than that of anyone else during the primary process or the general election.

In other words, our current problem is not simply one of the under-representation of this or that individual ideological group (such as moderates or the ideological fringes), but of a broader misrepresentation that leaves various groups and many individuals effectively disenfranchised at one stage or another and thus denied effective representation in government.

Independents should then throw their weight behind electoral reform that empowers all voters at each stage in the political process. Various groups, including the Green Party of California and FairVote, have proposed different solutions that will produce electoral results that more closely align the makeup of legislative bodies with the diverse preferences of their constituents (and address the deeper institutional causes of the under-representative and unpopular two-party system).

These proposals are for independents to debate in the future, here and elsewhere, but first we should recognize that top-two (under which “the quality of representation has declined” in California, according to one rigorous quantitative analysis) is not the answer.

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