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 Dear Katherine, 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: Background: 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. Questions: 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’? and, (b) Will the Secretary of State conduct a presidential primary in 2016 that comports with California’s Constitutional requirements? Sincerely, Steve Peace Co-Chair, Independent Voter Project Dated this 6th day of January, 2014 Jeff Marston 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.