A History of the Open Primary in California
Third Party and Independent Candidates. There are no independents or third party representatives in California’s legislative or congressional delegations; no third party or independent candidate has ever been elected to statewide office under the current system. The highest number of votes received by a third party or independent candidate running for the state Assembly in 2008 was 399 votes, less than one percent of the total votes cast. Between 1990 and 2008, only eight independent candidates have qualified for the general election ballot for a statewide election for any office.
Prior to the mid-1960s. Until the mid 1960’s, California allowed “cross filing.” Under this system, candidates could file to run in more than one party primary.
1996 – Proposition 198. In 1996, 59.5% of Californians voted in favor of an open primary initiative, Proposition 198. The measure passed in all 58 counties in California and was in place for the 1998 and 2000 primaries. Proposition 198 was subsequently deemed unconstitutional by the U.S Supreme Court (California Democratic Party v. Jones). The majority of the Court ruled that California’s election scheme violated political parties’ “private right of association.” In other words, because voters still were required to register to vote and state an affiliation with a party, the equivalent of joining that party, the parties were denied their right to have their “members” identify with a candidate who did not have an affiliation next to his or her name.
2004 – Propositions 62 and 60. Two competing primary measures appeared on the November 2004 ballot. Proposition 62 would have restored the open primary process with some modifications designed to address constitutionality. A competing measure, Proposition 60 was placed on the ballot by the Legislature to protect the current partisan primary system and was backed by both major political parties. Proposition 62 failed at the ballot box. Proposition 60 passed. It was the system in place until the 2010 Open Primary Initiative passed.
2010 – Proposition 14, The Open Primary Initiative. In 2010, voters approved Proposition 14, which created the current Open Primary Initiative in California, modeled after Washington State’s primary system. Washington’s system was ruled constitutional “on its face” by the U.S. Supreme Court (Washington State Grange v. Washington State Republican Party). This decision leaves open the right to make what are called “as applied challenges.” The major difference between the California proposal and Washington is that voters in Washington have never disclosed party affiliation or preference when registering to vote. As a result, the parties were not denied the right to have members identify with a candidate.
As California’s new initiative was being crafted in 2008, Oregon attempted to institute an Open Primary process. Despite polling at 65 percent favorable, the Oregon initiative was defeated when the state’s teachers union alleged that not having party affiliations attached to candidate’s names was an attempt to hide affiliation. Because Oregon had historically required party registration, this argument appealed to the voters and the initiative failed.
Because of Oregon’s experience, the California initiative was pulled back and rewritten. Two key changes were made. The first changed the voter registration language from “party affiliation” to “party preference” so that the parties could no longer allege that voters were “joining” the party by registering. In addition, candidates are required to list their history of voter preference for the 10 years prior to the election so it could not be alleged that party preference was being hidden.
The California Open Primary Initiative was approved by voters in the June 2010 primary by a 53.8 percent margin.