California: A Voting Rights Catalyst or Dinosaur?
Depending on what news station you watch, you might think that one party is the savior and the other, the enemy, of our sacred right to vote.
But what if a larger battle is being waged to secure our right to vote? A battle that threatens insiders on both sides of the partisan political aisles? A battle ignored by a mainstream media that has embedded itself in partisan rhetoric? A battle that would expose the hypocrisy of both parties?
From Alaska to New York and Maine, there has been an unprecedented growth of interest in election reforms to destabilize the monopoly party insiders have on the election process.
This momentum follows the lead of Washington and California, which became the first two states in the nation after Louisiana to abolish the private party primary system that denies the full right-to-vote to the 45% of American voters who self-identify as independent of either party in favor of a public nonpartisan primary system that treats every voter, candidate, and party the same.
Most simply, the passage of Proposition 14 -- the top-two primary initiative -- by the voters of California in 2010 was the signal to the country that nonpartisan reform was possible in the face of bipartisan opposition. Yet, the Golden State can also learn from the achievements of others as well.
First, A Brief History of California’s Top-Two Primary
The top-two primary was not California’s first experience with open primaries. California voters initially passed an “open blanket” primary in 1996 under Proposition 198, which allowed all voters to choose freely from all the candidates running in a primary -- regardless of party. The candidate of each party with the most votes then moved on to the general election.
The parties, however, did not like voters registered outside their party participating in their nomination processes. In the case California Democratic Party v. Jones, both major parties argued that primaries were private elections, and therefore, voters not registered with a party had no right to vote in the primary election.
The case made it all the way to the US Supreme Court, and the late Justice Antonin Scalia, writing for the majority, agreed with the parties’ legal arguments. He reasoned that “forced association has the likely outcome—indeed, in this case the intended outcome— of changing the parties' message.”
“We can think of no heavier burden on a political party's associational freedom,” he added.
Scalia also noted, however, that California could accomplish its goal of allowing every voter the right to participate by adopting a “nonpartisan blanket primary” system because the purpose of a nonpartisan primary is to serve voters, not the political parties.
In March 2008, the US Supreme Court upheld Washington’s nonpartisan top-two open primary in Washington State Grange v. Washington State Republican Party. The primary allowed all voters and candidates, regardless of party, to participate on a single ballot, and the top two vote-getters moved on to the general election.
And thus, a legal precedent was set that taxpayer-funded primaries did not have to serve the interests of political parties if the State chooses to have the primaries serve the voters instead.
Meanwhile, the California Independent Voter Project (IVP) had already been preparing for a ballot initiative using the Washington model as a template. Soon after the Grange decision, IVP assembled a legal team that included former State Senator Steve Peace, Peace’s former Chief-of-Staff Dan Howle, and Charles Munger Jr, PhD to make it happen.
The end result was a constitutional amendment that adopted Washington’s top-two nonpartisan primary system, but had candidates and voters disclose their political party “preference,” as opposed to their affiliation, to promote transparency.
Prior to drafting, IVP conducted extensive research over the 2006 and 2008 election cycles, culminating in a discovery that issues affecting the right to vote mattered a great deal to “decline to state” voters. Polling showed that about 80% of “decline-to-state” (aka, independent voters) would support a nonpartisan primary, if they showed up to vote.
Importantly, for context, the California legislature implemented a closed primary system after the court struck down its open blanket system in Democratic Party v. Jones. This meant that independent voters could not vote for candidates in California's partisan primaries, giving them little inherent reason to show up to vote.
So, IVP designed a voter education campaign targeted at over half a million independent voters who had a history of voting in the general election, but not voting in the primaries. The effort had tremendous success as independent voters showed up in force to support Proposition 14, the top-two initiative, in the 2010 primary. The measure passed by about 400,000 votes.
The Success and Impact of Top-Two in California
The authors of the top-two initiative understood that partisan polarization in California was getting bad. Independent voters were on the rise, but no one was speaking to them. Legislators on opposite sides of the aisle didn’t even talk to each other. And voters were becoming increasingly dissatisfied with Sacramento.
The reasons behind the state’s political decline were clear to leaders at the Independent Voter Project. They knew that the incentives built into the electoral system drove hyper-partisanship up while driving voter participation down. And, it all started with the closed primary, where candidates and legislators are incentivized to listen to the partisan voters who turn out in their primary, and ignore everyone else.
This understanding of how incentives in a partisan-controlled political process foster anti-democratic behavior among public officials and in elections would later be seen in future research, such as Katherine Gehl and Michael Porter’s renowned 2017 Harvard Business School study, “Why Competition In The Politics Industry is Failing America.”
Gehl and Porter see closed partisan primaries as the most detrimental element in US elections, and their work has had a substantial impact on recent efforts to adopt nonpartisan primaries combined with alternative voting methods.
The passage of Proposition 14 showed the nation that it was possible to shift political incentives to public accountability even in a hyper-polarized political environment. The authors of the top-two initiative knew the best way to do this was to enhance and empower voting rights in the state.
Greater competition can emerge by opening the process and giving everyone an equal opportunity to cast a meaningful vote. And, when there is greater competition, there is a greater incentive among public officials to listen not just to members of their own party, but voters outside their party as well.
And, research shows the top-two primary has been successful at accomplishing this fundamental goal of better representation.
Candidates in California now have a greater incentive to listen to independent voters. They have a greater incentive to clarify their positions and compete for voters outside their party’s base. There is less incentive to appeal to ideological extremes. There is more intra-party competition in the primaries and more inter-party competition in legislative elections.
But, as the authors of the top-two initiative continue to state, our elections are still far from perfect. And, in the decade since Proposition 14 passed, efforts to increase competition, fairness, and accountability in elections have expanded exponentially across the country.
The Future of Nonpartisan Primary Reform
In 2020, two initiatives passed in Alaska and St. Louis that combined nonpartisan primaries with an alternative voting method, highlighting the possibilities that remain for California’s top-two primary.
Proposition D passed in St. Louis, Missouri, which combined a nonpartisan top-two primary system akin to the primaries in California and Washington with approval voting. This voting method allows voters to select as many candidates as they want on the ballot.
Alaskans for Better Elections expanded on the nonpartisan top-two primary in their state with an amendment that advanced the top four candidates from the primary to the general election, and combined that with ranked choice voting in the general election to reduce vote splitting and ensure a majority winner.
Of all the reform movements that have gained ground in the last decade, ranked choice voting has the most momentum behind it. It passed at the statewide level in Maine and Alaska, and in jurisdictions as large as New York City.
Ranked choice voting allows voters to rank candidates in order of preference. If no candidate has a majority of first choice selection by voters, one or more automatic rounds of runoff are held where the last place candidate is eliminated and their voters’ next choice is applied to the total until one candidate has a majority.
It is used in 22 jurisdictions in the US, including being approved statewide by Maine voters, twice. Ten more jurisdictions are set to implement it in the near future, including Alaska. It was also approved for use by 23 Utah cities for the 2021 elections.
New York City made national headlines in 2021 after it used ranked choice voting for the first time in citywide primary elections in June. The city saw a notable increase in voter turnout, and voters overwhelmingly said they found the voting method to be easy and want to continue using it.
Advocates say ranked choice voting enhances competition by incentivizing candidates to appeal to candidates outside their base of support and to garner the second, third, fourth, or even fifth choice of their opponents’ supporters -- particularly in large candidate fields.
Opponents say that ranked choice voting causes confusion, administration difficulties, and opens up elections to more political “gaming,” not less.
Importantly, although New York City passed ranked choice voting, it is only used in their closed primary elections. Only registered party members can participate, and those voters are limited to choose from candidates from only a single party. Voters who don’t register with a political party in New York at least 6 months prior to the election are denied the right to vote in the primary altogether.
To provide for truly accountable and representative elections, the future of nonpartisan reform is shifting to the combination of ranked choice voting with nonpartisan primaries.
This is why Alaskans for Better Elections pushed successfully for nonpartisan top-four primaries with ranked choice voting. And, reform organizations like the Institute for Political Innovation are championing a similar reform solution, with the top five candidates advancing from a nonpartisan primary and using ranked choice voting in the general election.
The idea of enfranchising more voters in the primary and giving voters more choices in the general election is catching on and growing in popularity.
Would the reform world be where it is now without California?
Who knows. But it was Dan Howle from California’s Independent Voter Project and Rob Richie of FairVote, who first suggested a top-four primary as a good marriage between open primary and ranked choice advocates.
And, it was California that proved that even in the largest state in the union, voters could pass an initiative in the face of two-party opposition. It showed the rest of the country the opportunities that exist in a political environment in which so many voters feel unheard and unrepresented.
Now, it might be time for California to learn from advancements happening in other parts of the country.