The initiative that created the nonpartisan “top-two” system was authored by the Independent Voter Project (IVP) and passed by the voters in 2010 as an amendment to the California Constitution.
In late 2013, IVP filed an initiative with the secretary of state that would have explicitly required the state to conduct the presidential election as a nonpartisan primary as well.
In withdrawing the initiative, IVP submitted 3 legal questions for California’s secretary of state, Debra Bowen, questioning whether its 2012 presidential primary was conducted properly:
The Honorable Debra Bowen
Attn: Katherine Montgomery
Office of the Secretary of State
1500 11th Street, 5th Floor
Sacramento, CA 95814
RE: Initiative: 1597, Related to Elections
This notice is to inform you that the Independent Voter Project (“IVP”) has elected to withdraw its initiative referenced above in light of legal questions that have recently come to our attention. In that regard, we respectfully request the legal opinion from the Secretary of State as to the following questions:
C.A. Const. art. 2, § 5(c) requires the Secretary of State to conduct an ‘open presidential primary’ election. According to the dictionaries of both Oxford and Merriam-Webster, an ‘open primary’ is defined, respectively as:
a primary election in which voters are not required to declare party affiliation and, a primary in which the voter is not required to indicate party affiliation
Yet, pursuant to California Elections Code Section 13102(b), a voter not affiliated with a political party may not participate in the selection of candidates during the presidential primary stage unless a political party allows the voter to participate.
This presidential primary election scheme appears to be a semi-closed primary system, not the system contemplated by the California Constitution.
1. Did the Secretary of State properly and Constitutionally conduct California’s 2012 presidential primary election?
2. If the answer to the first question is “Yes,”
(a) How does the Secretary of State explain the apparent conflict between the Constitutional language, the statutory implementation, and the actual administration of the 2012 presidential primary election?
3. If the answer to the first question is “No,”
(a) Why was a semi-closed primary conducted instead of an ‘open presidential primary’?
(b) Will the Secretary of State conduct a presidential primary in 2016 that comports with California’s Constitutional requirements?
Co-Chair, Independent Voter Project
Dated this 6th day of January, 2014
Co-Chair, Independent Voter Project
IVP is currently spearheading a state-by-state legal strategy to challenge partisan primary systems under the coalition, End Partisanship.
Join the discussion Please be relevant and respectful.
Even after the California constitution was amended and IVP requested that their questions about the primary be answered, I believe that the majority party had made the decision to disallow the open primary for political reasons and there maybe a clause in the constitution that allows for the Secretary of State to disallow the open primary.
One would have to read the full change and if there is a clause that allows a closed primary, a lawsuit needs to be began on behalf of the iVP.
Yet again, the debate can turn on how a key term is defined, used or misused. In theory, open ought to mean open. Secretary Bowen is presumably a very smart attorney with a law degree from Univ. Virginia law school (http://en.wikipedia.org/wiki/Debra_Bowen). UVA is a first tier law school. She knows exactly what the commonly accepted meaning of "open" is and to assume anything less arguably insults her intelligence. She knows exactly what the voters intended and meant when they passed California's open ballot proposition. She knows exactly what she is doing. She is a democrat and full-on member of the two-party system.
If that is a fair assessment of the situation, what do we have here? IMHO, we have a clash between the plain meaning of the word "open" and the powerful urge of the two-party system to keep California primaries as closed as they possibly can because that serves their interests. If Sec. Bowen comes down on the side of open meaning semi-open, then the two-party system has been served first before the public interest. If she decides that open means what normal people assume it means, then the public interest will have trumped the two-party special interest.
Or, does that miss something?
Well, I would be interested to see how SecState (Calif) reacts. That seems to be where we are at this juncture. Seeing what our election head cheese in California says. Everything else is sort of on hold.
When I went to vote I was asked to declare myself a democrat or a republican. If I did not do that I could not have a ballot and I could not vote. When I said I am an independent, they said well just declare one or the other to get your ballot. I don't feel I have to vote for a party. I wish to vote for the person I feel is best suited for the job. Will this be the same scenario in 2016<?
The new redistricting commission is helping to reduce gerrymandered districts. No longer will the Sacramento politicians in the legislature determine the boundaries.
We may have some freedoms left, but were not free men as long as we allow the media to elect our leaders and ignore citizen that don't want to sell their future office to corporate interests. It's the same as having no 1st amendment to be barred from mass communication AKA (TV and media) These corporations are global and owned by foreigners. Foreigners may be barred from casting votes in our elections as they should be, but they can own these media companies and they are the one who name our Presidents then drill them into our heads by repetitive endless advertising. To save America we need to stay with paper ballots and elect people that are wanting to work in public service and not owned by a corporation. God Bless America
Robert Newbern Jorgensen
2012 Independent Presidential Candidate
No election should be partisan. People run in primaries off of their own money and contributions and the top two people get a specific amount of public money and air time.
Here is the significant problem with open party primaries.
Let's say there are two main parties, the Yellow Party and the Purple Party.
Let's say the Yellow Party has a candidate who has no significant opposition from any other Yellow candidate. This means that, for all intents and purposes, an additional vote for the Yellow Party candidate in the Yellow Primary is essentially a vote that doesn't mean much.
Now let's say the Purple Party has two candidates. ONE candidate is preferred by more true Purple voters, and the Yellow party leaders would prefer that a lesser Purple candidate win the Purple primary. In a closed primary, this preferred candidate would win and move forward to the general election, where the Yellow candidate has less of a chance to win against the preferred Purple candidate. However, in an open primary, the Yellow party voter can come in and register as a Purple party voter, and then vote for the Purple candidate running AGAINST the preferred candidate. In many cases the additional votes rendered by Yellow party members, added to the Purple party voters would make the lesser preferred candidate win the Purple Primary. In this way the Yellow Party candidate has a greater chance of winning the general election, because it will help suppress the Purple Party vote.
This is why party primaries should be closed.
Also voters don't turn out in large numbers for the primaries. Just helps big money candidates knock out any competition from running a campaign. Grassroots candidates don't even gave time to raise funds enough for a campaign by primaries because of restrictions on fundraising prior to primaries. Party candidates are funded by their party in primaries.
Not really because the distrcts have been gerrymandered to favor one party so it eliminates all other choices from the ballot all together. And it favors big money candidates over insependents, third party and grass roots because they can afford to buy media in the primary whereas these other candidates can't.
You have it all wrong. If the top two candidates (from among a wide open field) boil down to two of the same party... THEN THAT'S WHAT THE VOTERS WANTED. You are actually getting what the voters wanted for the first time, but you don't even recognize it.
The vote belongs to the People and not the parties. Any election rules that prevent the People from voting their own conscious is a violation of their rights. Both parties have been unlawfully disenfranchising the American People for decades. It's time we take back the vote!
I will be fascinated to see if there is a reason under federal law that the primary was conducted as it was. Unless the SoS has a history of performing badly, I suspect that there was a legal basis for doing it the way they did.
But unless it is pursued, that is speculation rather than fact, so I applaud the letter. Good job!
Yes but only the two top vote getters get to the general election so after the primary you only have two candidates to choose from and because of the gerrymandering of the districts, those candidates that gey through the primary are the ones with money and are often from the same party so the voters end up with no real choice on the general election and we end up with statis quo. Grassroots candidates never make it past the primaries so no real chioces exist in the general elections.
Would like to see top 4 or so, to ensure multiple parties and\or independents. Why limit yourself to only 2 choices?
The part of the California Constitution mandating a top-two primary says it only covers Congress and partisan state office elections. The Secretary of State is just following the Constitution and the California Election code. There is no constitutional provision and no law saying the presidential primary must be open. Democrats voluntarily open their presidential primary to independents; Republican don't.
And, on further consideration, a reasonable question asks whether there is any objective data to suggest how Sec. Bowen will answer IVP's questions. The answer is maybe. If Sec. Bowen was solely responsible for the 2012 semi-open primary, then she has already decided and will either defend her definition of open to mean semi-open, or will simply ignore IVP's inquiries. It is hard to see her backing down in the face of what has already transpired because it would constitute such a flagrant "mistake", if that's what it was. In theory it is possible she will change her mind, but that seems to be unlikely. The question here is to what extent is Bowen's office responsible for interpretation and implementation of the open primary ballot measure.
On the other hand if Sec. Bowen was not completely responsible then who were the responsible entities or people? That raises the question of how much it costs to file a freedom of information request in California. That request would seek answers to fun questions like who did Sec. Bowen meet with, when did she meet, what was said by whom and how and why did Sec. Bowen respond as she did. Were any of the responsible parties campaign contributors and if so, how much and when were contributions made?
So, what are the logical ramifications of all that? You decide.
P.S.: Yes, I know, I am replying to to myself. That's still OK etiquette, right? Its a shame to leave trains of thought incomplete.
There is no common meaning of "open". If one reads the 1972 ballot pamphlet, it is obvious from the arguments that "open" in the context of that ballot measure referred to a system in which the ballot was open to every bona fide candidate, whether they filed or not.
My experience (after being a candidate in two very local so-called "non-partisan" elections, and discussions with other similar candidates is that when public money is at issue all elections are partisan -- and made so by the candidate supporters.
It is foolish and naive to try to take politics out of politics!!
If you want less partisanship then REDUCE THE SIZE AND REACH OF GOVERNMENT so that candidates/electees will have less impact on our lives. Now with govt intruding not just in our bedrooms, but in our house, our car, doctor's office, and our eating, etc. party affiliation is a way to organize to fight for GOVT largess.
SMALLER GOVT = LESS Partisanship.
@JonahKyle This argument has been made several times and there has never been any level of evidence that enough voters can be mobilized to accomplished this theoretical vote-switching scheme.
You mean like the way Harry Reid chose his opponent by funding the weaker Republican challenger in the primary…..it worked, Harry is still in the Senate
@JonahKyle Some good points Jonah, but i'd respond with two things:
1: Why should the Yellow and Purple parties be privy to public funds to conduct their primary if they are indeed private groups with a limited membership? (in some cases both parties combined only account for less than half of a state's voting population)
2: What is to prevent the Yellow and Purple parties from funding their own selection process to decide who the 'real' Yellow or Purple party candidate is? These candidates could then run with the official party endorsement and non-party members wouldnt have to subsidize a political party they dont affiliate with.
That isn't necessarily so. If five Democrats and two Republicans run for one particular office in the primary, it may be that the five Democrats get far more votes put together than the two Republicans. But the two Republicans each get more votes than any Democrat. So even though a majority of voters may want a Democrat, they are stuck with a Republican.
There is no federal law on this subject. California held a blanket presidential primary in 2000. But, the term "open" in the California Constitution relating to presidential primaries means that all candidates mentioned in the news media as serious candidates must be put on the ballot, even without their asking. The word "open" has many different meanings. The legislative history of that part of the California Constitution, and various lawsuits relating to which candidates are "serious", establishes this beyond doubt.
You seem so interested in this, you should do the work to find the 1972 voters pamphlet and see for yourself what the intent of the people who drafted that constitutional provision was. I'm not sure if it is on the internet but it might be, and if it isn't, you could ask the Secretary of State for a copy.
I see your point. I was reading into the word what it is that the average person would take it to mean coupled with the fact that voters approved the open ballot measure in the face of two-party opposition. Maybe this hinges on what a bona fide candidate isdefined to be, not what open means. Does the 1972 ballot control here? That's from a long time ago. Has the context changed so that the term is reasonably seen in a different light?
Anyway, if nothing else, at least Obama and Romney were bona fide candidates by the time California voted in its primary. Right? If so, they should have been on the open ballot. I think.
Smaller govt = less partisanship? Larger govt = less partisanship? How does one prove either argument? As far as I can tell any govt = boat loads of partisanship. Partisanship is going to be there regardless. People are people. Ideologues are ideologues. Sorry, Libertarian argument on this point just does not cut it. Not by a long shot.
@RichardWinger How did you arrive at the idea that "open presidential primary" referred to the candidates to be placed on the ballot and not in reference to the voters who may participate?
@RichardWinger Thanks for that clarification.
I look forward to the explanation.
Thank you for that open-minded and friendly response. I wonder if we could possibly meet? I live in San Francisco. Where do you live? My phone number is 415-922-9779. As far as waiting some years to see if Prop. 14 works better in the future, remember that the Louisiana top-two system started for state office in 1975, and for congressional elections in 1978. It hasn't changed Louisiana politics and it's been 38 years. Originally the Louisiana top-two system was worse than it is now, but in 1997 the US Supreme Court ruled unanimously in Foster v Love that Louisiana was breaking the federal law by holding its congressional elections two months before the mandated November date. So Louisiana eliminated its primary and holds its congressional elections in November, and if no one gets 50%, then there is a run-off in December. 85% of the time, someone gets a majority and no run-off is needed. Prop. 14 supporters could have written their law like that, and I wish they had.
OK, now some of this is starting to make some sense. There is a whole lot of history here I do not know. You were a plaintiff on the challenge against Prop. 14, right? (http://en.wikipedia.org/wiki/California_Proposition_14_%282010%29#Court_Challenge_and_Controversial_Ruling). You dislike Prop. 14, to say the very least (http://www.ballot-access.org/2012/09/some-supporters-of-top-two-open-primary-take-punitive-action-to-crush-opponents-with-crippling-legal-fees/).
Your name seemed familiar, but I could not put my finger on it. Now I get it. As a Libertarian (http://en.wikipedia.org/wiki/Ballot_Access_News), I imagine you really, really dislike my non-ideological approach to politics, especially in view of some of the sources and data I rely on for my conclusions and inferences (http://reformpartyca.org/ideology-is-bad/ ; http://www.scientificamerican.com/article.cfm?id=why-we-should-choose-science-over-beliefs).
Regardless of whether one loves, hates or doesn't care about Prop. 14, including the regrettable fallout over the loss of the write-in, Prop. 14 is the law in California and it is being implemented as the two-party system wishes. The voters voted for it and dissidents do not have power in the state. A few sources, including IVN and myself, are trying to change that unacceptable situation. No one is going to agree 100% of the time with what any dissident (or mainstream politician or party) does or wants, including myself. No one is going to get everything right 100% of the time, especially in view of how hard and intelligently the two-party system dissimulates, how weak the press is and how fragmented the data is. Even with the internet, it is darn hard to get things right.
The situation here is unfortunate. You have detailed knowledge and expertise, but yet you withhold that scarce resource. Why do you do that? Why did you point me at the 1972 voter pamphlet? It is irrelevant. Why didn't you simply point out at the outset that Prop. 14 was confined to statewide elections. With all due respect, what is going on here?
I don't mind changing my opinions or perceptions of reality if my data inputs or logic is flawed. My mistakes are honest ones and I am open about that. I am not perfect and there is only so much I can do alone. As far as I am concerned, transparency, brutal honesty and open agendas (not hidden agendas) is the only way to gain credibility with a disaffected and distrusting public. It is the only way to effect political reform. Frankly, it is the only way the Libertarian, Green or any other third party is going to gain widespread traction with the public, assuming the product they offer is appealing in the first place.
Sorry, I am not asking Prop. 14 backers squat about it. I wasn't there and have not analyzed the mass of data and arguments that I was unaware of. You are in a position to pose informed, intelligent questions, not me. You should author a post here and make your case in the open or do that on your website (http://www.ballot-access.org/). I see Prop. 14 as an experiment at fundamental reform and I probably won't have an opinion about it for another 6-10 years. That is about how long it will probably take for its effects on California and national politics to become apparent, assuming those effects ever become apparent. IMHO, there are far too few experiments in politics in California and at the national level. If Prop. 14 has warts, that's truly unfortunate, but it is too late to change that in the short term. Make your case to fix it.
Thank you for your comment! Prop. 14 and its backers have done these bad things to California election law: (1) took away write-in space in November for Congress and state office; (2) sharply increased the petition in lieu of filing fee for minor party candidates to get on the primary ballot, from 150 signatures to 10,000 for statewide office; (3) made it more difficult for minor parties to remain ballot-qualified because the old way they stayed on the ballot was to get 2% for any statewide office in a midterm year and now they aren't on the November ballot anymore; (4) took away the right of an independent candidate for Congress or state office to have the label "independent" on the ballot. Please ask the authors of Prop. 14 how they feel about each of those things.
OK, I don't understand what is going on here. On this topic, I quit. (Delete all of my comments.)
I did notice the loss of the write-in. That was really disturbing. Was Prop. 14 behind that and, if so, how? You appear to have inside knowledge.
Prop. 14 says, "Top Two Candidate Open Primary. All registered voters otherwise qualified to vote shall be guaranteed the unrestricted right to vote for the candidate of their choice in all state and congressional elections." It doesn't apply to president, because president isn't a state office. If Prop. 14 is being misinterpreted, it is being misinterpreted to deny voters a free choice in November. One would think that Prop. 14 would require write-in space on the ballot in November, yet the implementing statute took away write-ins. I wish people on this site would ask the authors of Prop. 14 how they feel about Prop. 14 causing California to be only the 2nd state in U.S. history to have ever had write-in space, and then lost it. Louisiana was the first.
Thanks for the comment. Yes, I am
interested in this matter and much of the content on IVN, particularly content
I comment on.
Per your suggestion, I found Proposition
open presidential primary law, online (http://repository.uchastings.edu/cgi/viewcontent.cgi?article=1748&context=ca_ballot_props).
It was passed by voters in 1972 as a legislative constitutional amendment. It says
this: “The Legislature shall provide for an open presidential primary whereby
the candidates on the ballot are those found by the Secretary of State to
be recognized candidates throughout the nation or throughout California for the
office of President of the United States, and those whose names are placed on
the ballot by petition, but excluding any candidate who has withdrawn by filing
an affidavit that he is not a candidate.”
You are right, the word “open” is modified. The modifications require candidates that are “. . . recognized candidates throughout the nation or throughout California . . . and those whose names are placed on the ballot by petition . . .” but not excluded by “. . . filing an affidavit . . .” that withdraws that person from the race.
You imply that the 1972 Prop. 4 has an impact on the interpretation of the top-two open ballot measure that voters passed as a constitutional amendment in 2010. Sec. Bowen first implemented the 2010 law in 2012. Apparently, IVP disputes the implementation (I agree with IVP's position). As I interpret the plain language of Prop. 4, I do not see how it detracts from IVP’s interpretation of the 2010 law. If anything, it appears that Prop. 4 reinforces IVP’s arguments. Under Prop. 4, a qualified candidate is someone who is reasonably well-know or is on the ballot by petition, assuming that they did not file the negating affidavit. Unless I am missing something, that’s not a very high bar to qualify someone as a bona fide candidate. In other words, Sec. Bowen got it wrong in 2012 and the 1972 law does not denigrate what voters wanted from their 2010 vote.
I think the 1972 law is irrelevant or maybe helpful to IVP's cause, but am I nonetheless missing something here, e.g., California state case law that puts this in a different light?
You hit a key point dead on: "leaders that first have the overall welfare of the American people at heart". IMO, that should be the key focus with compromises to narrower interests. Now the focus is on serving narrower interests, e.g., ideology, self-interest and special interests (usually with money). Although everyone involves would vehemently deny this, the public interest isn't really a significant part of the equation. In their minds, serving those narrower interests constitutes service to the public interest, despite what, in my opinion, routinely constitutes a spectrum of disservice to the public interest. I completely reject that two-party system's perception of reality. It is a false, self-serving reality.
How one gets this key point across to the public is a real puzzle. If only I had the answer to that.
Sounds like you have experience in hearing cats. A body without a head goes no where. To limit partisanship is to have leaders that first have the overall welfare of the American people at heart and a willingness to work together to create support and cooperation to achieve their goals.
The term "open" in election law has about 7 different meanings. To you, it always refers to something like Prop. 14. But in England, "open primary" means a primary conducted and paid for by the party, in which all the voters of a district choose a party's Commons candidate. In Pennsylvania, "open primary" means one in which the party organization makes no endorsement. In mainstream political science literature and also US Supreme Court opinions, "open primary" means the type of primary used in most southern states in which there is no registration by party and voters choose any party's primary ballot. In Alaska, it generally means a blanket primary. In Arizona it has frequently been used to mean a primary in which independents can vote in any party's primary. In the past in California, it was sometimes used to refer to what we generally today call fusion, the ability of candidates to run in the primaries of several parties. Back in the 1970's there was almost no discussion whatsoever of the issue of who can vote in primaries, it was just a term that was chosen to refer to whether or not to "open" presidential primaries to all presidential candidates. It was a way to end domination of presidential primaries by favorite sons.
@RichardWinger Also, it was Proposition 4 in the June election that first provided for the "open presidential primary" although that is just a technicality.
@RichardWinger Why did they use the term "open" though? Not necessary to complete the candidate purpose, right?
@RichardWinger But what is an "open presidential primary"? Surely they could have included the candidate requirements without including the term "open"?
That language about an "open presidential primary" was put in the Cal. Constitution as part of Prop. 7 in November 1972. The same measure made some other constitutional election law changes, including the 18-year vote. The ballot measure arguments about Prop. 7 made it clear that the purpose of the part about the presidential primary was to make sure that every presidential candidate of importance was on the primary ballot in California. If candidates were being coy, their names would go on anyway unless they filed an affidavit saying they weren't running. That ended the old practice of favorite sons in California getting themselves on the primary ballot and intimidating certain genuine presidential candidates to stay out.
The legislature implemented it by adding election code section 6311 early in 1976, in time for that year's presidential primary. It said, "The Sec. of State shall place the name of a candidate upon the pres. primary ballot when he or she has determined that such a candidate is generally advocated for or recognized throughout the U.S. or California as actively seeking the nomination..." That was the code section for the Democrats; similar code sections were added for the Republicans.