The  first special primary election for a Congressional office under  California’s top two open primary system has been scheduled for May 17th, but new  developments in a pending lawsuit may result in an injunction against  its implementation.  Still, the race taking shape provides some insights  into how the new system might affect traditional political and  electoral strategy.

Earlier  this month, Governor Jerry Brown announced the dates for the special  primary and general elections to fill the Congressional seat vacated by  Jane Harman in California’s 36th Congressional District.  Last week,  eighteen candidates filed paperwork declaring their intention to seek  the office.  With few exceptions, media coverage of the race taking shape  in the district has focused for the most part on just a handful of  Democratic and Republican party hopefuls with an emphasis on two  Democratic party candidates in particular, namely, Secretary of State  Debra Bowen and Los Angeles Councilwoman Janice Hahn.

However,  if no candidates withdraw from the race or are struck from the ballot,  voters in the district will have a wide array of candidates to chose  from in the primary: five Democrats, six Republicans, five candidates  designated as having “no party preference,” one Libertarian, and one  Peace and Freedom Party candidate.  Observers predict that, due to the  high number of candidates in the race, no one will win an outright  majority.  The top two vote-getters in the May primary will proceed to  the special general election scheduled for July 12th.

The  partisan breakdown of registered voters in the Democratic-leaning  district is reflective of the state as a whole.  Of the district’s  nearly 350,000 registered voters, 45% are Democrats, 27% are  Republicans, 22% decline to state a party preference, and the remainder  are registered with third parties.  Given this fact, it appears likely  that this will be the first instance in which two candidates from the  same party face-off in a special general election.

Yet,  it is safe to say that no one really knows what will result from the  first such election under the top two open primary system, or any other for  that matter.  It substantially changes the strategic calculus for  parties and candidates alike. Under the old system, the conventional  wisdom was that candidates should play to the party’s base in the  primary and pivot toward the center for the general election.  In the  top two open primary, candidates compete with all the other candidates in the  race in addition to those of their own party while appealing to voters  regardless of their party affiliation.

Let’s  assume, for the moment, that all five Democratic candidates in the  current race were competitive among Democratic voters, and that all six  Republicans were equally favorable to GOP voters.  It is possible that  no Democrat would receive more than 9% of the vote and that no  Republican would garner even 5%.  If an Independent or third party  candidate in such a race had the backing of just one in ten voters, he  or she would be assured a place on the general election ballot.  The  diluting effect of multiple candidates from both major parties thus  provides a potential strategic opening to Independent and third party  candidates.

Democratic  and Republican party leaders are highly cognizant of the potential  effects of a diluted vote.  Indeed, the California Republican Party has  already begun to take measures to counteract the likely fragmentation of  the GOP vote in future primary elections.  As CAIVN correspondent W.E. Messamore reported here last week, Republicans have approved measures that would provide for a  “pre-primary” in which the party will “now officially be able to pick  party favorites via early endorsements.”  If the Democrats implement  similar changes, the top two system will have effectively resulted in a  three-round election system featuring private party primaries followed  by a public primary and then a runoff election.

Independents  might be surprised to find that there are no specifically-designated  “Independent” candidates in the special election for the 36th  Congressional District.  Under the top two open primary law as it now  stands, unless and until there is an Independent Party officially  recognized by the state, there will be no “Independent” candidates  listed on any California ballot – with the exception of presidential  candidates, who do not fall under the scope of top two.  The law states  that if a candidate is not a member of a party officially recognized by  the state, he or she must be listed as having “no party preference” on  the ballot.

In  February, Michael Chamness, an Independent candidate in the CD 36  primary, filed a lawsuit against Debra Bowen in her capacity as  Secretary of State, seeking an injunction blocking the implementation of  the new law on the grounds that it would force him to lie.  A former  Green Party member, Chamness now affiliates with a party that is not  recognized by the state, so he will be listed on the ballot as having  “no party preference.”  Under the old system, Chamness would have been  allowed to file as an Independent.

The  first hearing in Chamness’s suit took place last week, but, as of this  writing, the judge has not yet issued a ruling on the matter.  As  ballots for the election are set to be printed in the coming days, on  Monday, Chamness’s attorney filed for a writ of mandamus with the Ninth  Circuit Court of Appeals to compel the district court to issue the  injunction.  Late Tuesday evening, the appeals court rejected that  petition but wrote that “The district court is requested to act promptly  on petitioner’s motion for a preliminary injunction,” according to a release from Chamness’s attorney, Gautam Dutta.

For more information on Chamness’s suit, see Chamness vs. Bowen here at CAIVN.