California Revisits Presidential Primary Process After 2016 Voter Nightmare

Created: 06 March, 2017
Updated: 21 November, 2022
6 min read

California election reformers, including the Independent Voter Project (IVP), predicted there would be massive voter confusion during the 2016 presidential primary.

And they were right.

Last month, the California legislature introduced two bills that create the appearance of addressing these issues, but not in the comprehensive way proposed by IVP, along with a number of California legislators before the 2016 primary.

As a consequence of convoluted primary rules, for example, hundreds of thousands of voters were unable to vote for major party presidential candidates since they were registered as “American Independent.” A LA Times study showed almost 75% of these voters didn’t realize “American Independent” was actually a political party, and not an independent or “no party preference” designation.

On top of that, independent (no party preference) voters were required to specifically request a "crossover" ballot, or they would not be able to vote for presidential candidates. If they weren’t careful, independent voters would receive either a ballot without any presidential candidates listed or a provisional ballot, running the risk of not having their vote counted at all.

IVP informed the secretary of state of issues related to the presidential primary ballot and the potential for voter confusion almost a year in advance. California Assemblymember Kristin Olsen and Senator Anthony Cannella even submitted an IVP-supported resolution that would have provided for a nonpartisan public option ballot for the primary, which would have listed all presidential candidates.

Moreover, Assemblymembers Adam Gray (D-Merced) and Kristin Olsen (R-Riverbank) also put forward a solution, ACA-13, an IVP-supported state resolution to create a single nonpartisan presidential ballot.

Both proposals sought to bring the California presidential primary into conformance with the open primary requirement under the California constitution, as well as simplify the process for both voters and registrars who have had extreme difficulty with the complex rules associated with California’s semi-closed primary.

Following the online registration surge of nearly 200,000 new voters before the June primary, Secretary of State Alex Padilla said, “It couldn’t be clearer—Californians of all ages want to vote.” Yet, when it came to making the last presidential primary easier for these voters, Padilla failed to take action despite being fully informed of the confusion that was set to occur.

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Rather than support a nonpartisan fix, such as the resolution previously put forward, Padilla chose to conduct a "semi-closed” primary that allowed political parties to dictate to the state who can and cannot vote. However, as mentioned above, California’s Constitution explicitly requires an “open presidential primary” -- one that guarantees access to every voter, regardless of party affiliation:

Article 2, Section 5(c) of the California ConstitutionThe Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including 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 of noncandidacy.

Currently, the California presidential primaries are conducted in one of two ways:

Closed presidential primary: Where the party limits participation in the presidential primary to only voters registered in that party. In California, the Republican, Green, and Peace & Freedom parties use their publicly-funded primary to conduct closed primaries.

Modified-closed primary: Where the party allows voters who did not register with that party to vote on their presidential nominee(s). The DemocraticLibertarianAmerican Independent parties allow independent voters in California to partake in their private nomination process via special request.

Neither a closed nor modified-closed primary is an open primary -- where every voter is able to participate.

In response to the nonpartisan ballot resolution, Padilla’s office said the secretary of state, as the state's chief elections officer, was unsure he possessed the authority to comply -- a ridiculous assertion for a secretary of state to make. Importantly, Padilla made no effort to inquire with the California Attorney General regarding any potential authority he, as the chief elections officer, may or may not have to conduct an election process that follows the constitution.

Both the IVP-supported resolution and constitutional amendment, which attempted to create simple, inclusive, and constitutional presidential primaries, died in committee, despite bipartisan support.

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Now that the damage to the 2016 elections has been done, two bills have been introduced to the Assembly to “fix” the problem. “Fix” is in quotations because they don’t actually address any of the core issues -- especially those concerning the nonpartisan right to vote that is at stake.

The first, AB-837, would require the secretary of state to create posters for polling locations on how to navigate the twists and turns of voting in the California semi-closed presidential primary. The posters would delineate which parties allow nonpartisans to partake in their primary, and how to do so.

In other words, the secretary of state would simply give voters more information about how the semi-closed primary works, so they better understand how to navigate the confusion that results from having a primary election that is out of conformance with the constitution. Mind you, voters won’t see the posters until voting day.

Not only does this bill fail to solve the actual problem, but the precinct posters exclude the growing absentee voter group, which accounted for nearly 60% of the ballots cast in the 2016 primary.

Keep in mind, public tax dollars are used to administer the presidential primary. Public tax dollars would also be spent to print these nice big posters. But California's presidential primary only really serves voters as long as they are a Democrat or Republican.

The second bill, SB-286, attempts to address the hundreds of thousands of voters who asked for a ballot on election day, but were denied because a ballot had already been mailed to their home. By default, nonpartisan voters do not have the opportunity to vote for presidential candidates unless they notify the secretary of state that they want a party's ballot they are allowed to vote in -- which led to the immense number of provisional ballot requests.

In 2016, the Democratic Party allowed independents to vote in their primary. And with Bernie Sanders in the race, can you imagine how many independents showed up to the polls asking for their Democratic ballot? Can you imagine how many got turned away or were given “provisional” ballots that were counted a full month after the primary?

Logically, the Democratic establishment may not have been so keen on solving this problem in 2016.

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SB-286 would give absentee voters a non-provisional ballot if the precinct verifies that the original mail-in ballot was not returned.

Now imagine, instead of focusing on printing detailed instructions on big posters and allowing voters to fill out non-provisional ballots, what if the California legislature and secretary of state simply made the process easier?

For instance, what if California conducted an open primary where everyone received the same ballot?

What if all voters could vote for any candidate?

And what if the political parties were just provided the vote totals, broken down by voters’ party affiliation?

It would be easier for voters. Easier for elections officials. Cheaper for the taxpayer. And a simple solution for anyone who wants to make it easier for Californians of legal age to vote.

Photo Credit: Brandon Bourdages / shutterstock.com