By Jennifer Wada
Copyright © 2004 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2005
B.A., Communications Studies, Loyola Marymount University, 2000
Proposition 60 was placed on the ballot by the Legislature in June 2004 in an effort to preserve the existing closed primary system. California Secretary of the State, California Official Voter Information Guide, Proposition 60: Election Rights of Political Parties (2004). Proposition 60 seeks to maintain the closed primary system by amending it into the California Constitution. Id. Under this system, all parties that participate in a primary election are able to advance their top vote-getting candidate to the general election. Legislative Analyst’s Office, Proposition 60 http://www.lao.ca.gov/ballot/2004/60_11_2004.htm (accessed Aug. 28, 2004).
Proposition 60 was placed on the ballot by the Legislature in an effort to counter Proposition 62, which aims to create an open primary system wherein the top two vote-getters for each office in the primary election advance to the general election, regardless of party affiliation. Institute of Governmental Studies, University of California, Propositions 60 and 62: Primary Elections http://www.igs.berkeley.edu/library/htPrimaryElections.html (accessed Aug. 28, 2004). Proposition 62 was placed on the ballot by a non-profit organization compiled of bipartisan civic, government, and business leaders. Californians for an Open Primary, Background on the Open Primary http://www.openprimary.org/index.cfm (accessed Sept. 6, 2004).
The stated goals of Proposition 60 include: 1) ensuring accountability among elected officials; 2) guaranteeing voters’ right to hear all points of view; and 3) protecting voter choice by guaranteeing the right of every political party to nominate candidates for partisan office in a primary election and to compete in a general election. California Secretary of the State, California Official Voter Information Guide, Proposition 60: Election Rights of Political Parties (2004). Originally, Proposition 60 also included a provision requiring that proceeds from the sale of surplus state property be put towards payment of $15 billion in deficit bonds included in the 2003-2004 budget package. Cal. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. 2 (June 24, 2004). Californians for an Open Primary, Proposition 62’s sponsors, challenged this version of Proposition 60 on grounds that it violated the California Constitution’s separate vote requirement and sought for the proposition’s removal from the ballot. Californians for an Open Primary v. Shelley, _ Cal. App.4th _, 16 Cal. Rptr. 3d 797 (App. 2004). On July 30, 2004, the California Third District Court of Appeal ruled that the proposition was eligible to remain on the ballot but must be severed from the surplus state property provision, which is now Proposition 60A. Id.
A. Historical Background
California election law has a multifaceted history. In 1909, legislation was passed to create a closed primary system in which registered voters of a particular party would only receive the ballot of and vote on candidates of that party. Institute of Governmental Studies, University of California http://www.igs.berkeley.edu/library/htPrimaryElections.html. Registered voters who were not registered with a particular party could only vote on non-partisan offices. Id. Cross filing came about in 1913 and allowed a candidate to run for the same office under differing party affiliations; however, this practice was eliminated in 1959. Id.
In 1996, Proposition 198, called the “Open Primary Initiative” was passed by voters in the March Primary. Id. Nearly sixty percent of California voters supported it. The San Francisco Chronicle, Rancor and Gridlock http://www.sfgate.com/cgibin/article.cgi?file=/c/a/2004/07/25/EDGIJ7PH071.DTL (accessed Aug. 28, 2004). The effect of this initiative was to allow registered voters, both affiliated and independent, to vote for any candidate in the primary election, regardless of party affiliation. California Secretary of the State, Prop. 198 Analysis by the Legislative Analyst http://primary96.ss.ca.gov/e/ballot/198analysis.html (accessed Sept. 6, 2004). However, the law remained unchanged in that the candidate of each party who received the most votes would be that party’s nominee in the general election. Cal. Elec. Code Ann. § 15451 (West 1996). Thus, voters who did not belong to a certain party could determine who that party’s nominee was. The intent of Proposition 198 was to encourage political participation and to promote the selection of moderate candidates who would need to appeal to a broad spectrum of voters in order to win. Institute of Governmental Studies, University of California http://www.igs.berkeley.edu/library/htPrimaryElections.html.
This open or “blanket” primary system was in effect during the June 1998 and March 2000 primary elections but in June 2000 the United States Supreme Court declared Proposition 198 unconstitutional. California Democratic Party v. Jones, 530 U.S. 567 (2000). The Court held that Proposition 198 violated the political parties’ First Amendment right of association since it allowed non-members of a party to determine the party’s nominee. Id. at 582. In delivering the majority opinion on Proposition 198, Justice Scalia stated, “a corollary of the right to associate is the right not to associate.” Id. at 574. Proposition 198 violated this right by forcing a party to associate with those who refused to affiliate with it or who affiliated with a rival party. Id. at 577.
The right to exclude is especially important in the process a party uses to select its nominee since this process can determine the party’s positions on major public policy issues. Id. at 575. The nominee becomes the party’s ambassador to the general electorate and he or she is to advocate for the party’s views. Id. The Court found that a substantial number of voters who help select the nominee of a party that they are not a member of often have policy views that diverge from those of the party faithful. Id. at 578. The Court found that the prospect of having a party’s nominee determined by followers of an opposing party was a “clear and present danger” that could destroy a party. Id. Proposition 198 forced parties to allow one of their most basic functions – candidate selection – to be tainted, which has the likely outcome of changing a party’s message. Id. at 581-582. Therefore, Proposition 198 was found to be unconstitutional unless it was narrowly tailored to serve a compelling state interest. Id. at 582. No such compelling interest was found by the Court. Id. at 582-584.
B. The Modified Closed Primary System
Three months after Proposition 198 was held unconstitutional, Senate Bill 28 was enacted. Cal. Sen. 28, 1999-2000 2nd Reg. Sess. (Sept. 29, 2000). This legislation repealed amendments made by Proposition 198 and established a “modified closed primary.” Id. As was the law prior to Proposition 198, the law now provides that registered voters of a particular party receive only the ballot of their party and vote only upon candidates within their party. Institute of Governmental Studies, University of California http://www.igs.berkeley.edu/library/htPrimaryElections.html. One modification made by SB 28 was to allow independent (“decline to state”) voters to choose a party ballot and vote for partisan offices provided that party authorizes unaffiliated voters to participate in its primary. Id.
California Election Code section 2151 now provides:
No person shall be permitted to vote the ballot of any party or for any delegates to the convention of any party other than the party designated in his or her registration, except as provided by Section 2152 [change of affiliation] or unless he or she has declined to state a party affiliation and the party, by party rule duly noticed to the Secretary of State, authorizes a person who has declined to state a party affiliation to vote the party ballot or for delegates to the party convention.
Cal. Elec. Code Ann. § 2151 (West 2000).
California generally holds a primary election in March and a general election in November. Office of the Secretary of State http://www.ss.ca.gov/elections/bp_nov04/prop_60_entire.pdf. For partisan offices, such as the Governor and members of the Legislature, each party’s nominee is determined by the candidate that receives the most votes within his or her party. Id. The top vote-getter for each party then advances to the general election where he or she will run against all other parties’ top vote-getter and any independent candidates. Id.
In June 2004, in response to Proposition 62 being placed on the ballot, Senator Ross Johnson (R-Irvine) and Senator Dede Alpert (D-San Diego) authored Senate Constitutional Amendment 18. Cal. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. 2 at 1. The Legislature approved this constitutional amendment by a two-thirds vote just before the deadline to get measures on the November ballot. Institute of Governmental Studies, University of California, http://www.igs.berkeley.edu/library/htPrimaryElections.html.
The California Constitution currently requires the Legislature to provide for primary elections for partisan offices, including an open presidential primary. Cal. Const. art. II, § 5. Article II, section 5 states that:
The Legislature shall provide for primary elections for partisan offices, including an open presidential primary whereby the candidates on the ballot are those founded 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.
Cal. Const. art. II, § 5.
If passed, Proposition 60 would add to section 5 a subsection to codify the right of a political party to advance its top vote-getter to the general election:
(b) A political party that participated in a primary election for a partisan office has the right to participate in the general election for that office and shall not be denied the ability to place the candidate who received, at the primary election, the highest vote among that party’s candidates.
Cal. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. 2 at 2.
The effect of Proposition 60 is to essentially preserve the existing modified closed primary system. Institute of Governmental Studies, University of California, Propositions 60 and 62: Primary Elections http://www.igs.berkeley.edu/library/htPrimaryElections.html.
Originally, Proposition 60 included a provision requiring that, if the state sells specified surplus property, the proceeds must go towards payment of the $15 billion in deficit bonds that were included in the 2003-2004 state budget package. Cal. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. 2 at 2. The California Third District Court of Appeal later held that, pursuant to the separate vote requirement of article XVIII, section one of the California Constitution, the two proposals contained in Proposition 60 (Election Rights and Surplus State Property) must be split and submitted to the voters as separate measures. Californians for an Open Primary, _ Cal. App. 4th at _, 16 Cal. Rptr. 3d at 806.
For a measure to be severable, several criteria must be present: 1) the language of the statute must be grammatically severable; 2) the valid portions must be capable of independent application; and 3) there must be a likelihood that the State would have adopted the valid portions had it foreseen the partial invalidation of the statute. Peoples Advoc. Inc. v. Superior Court, 181 Cal. App. 3d 316, 330-333 (App. 1986).
In the case of Proposition 60, the provisions could be grammatically severed since they were written as separate sections. They could be independently applied since one dealt only with elections while the other solely addressed the paying of debt bonds with surplus state property proceeds. Further, the court found that the provisions of Proposition 60 were independently substantive and unrelated. Californians for an Open Primary, _ Cal. App. 4th at _, 16 Cal. Rptr. 3d at 801. Finally, there is evidence that the Legislature would have separately adopted each proposal since, although they were voted on as one proposal, the provisions were given independent consideration and analyzed separately. Senate Rules Committee, SCA 18 Third Reading Analysis http://www.leginfo.ca.gov/pub/bill/sen/sb_0001-0050/sca_18_cfa_20040621_105426_sen_floor.html (June 21, 2004). Therefore, there were no severability problems with Proposition 60 and it was successfully divided into two separate measures.
The language of Proposition 60 addresses the rights of political parties in regards to party participation in general elections. Cal. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. 2 at 2. However, the stated goal by the initiative is to protect voter choice by guaranteeing the right of every political party “to nominate candidates for partisan office in a primary election and to compete in a general election.” California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). Nonetheless, the proposition arguably does nothing to protect a party’s right to nominate candidates in primary elections, since the proposition makes no mention of the nominating process and includes no safeguards, such as a prohibition against non-members of a party voting for that party’s nominee. Proposition 60’s language is effectuated after the primary election and focuses on the notion that once the votes are counted, the top vote-getter of a party cannot be denied placement on the general election ballot. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. at 2. For example, laws and voting schemes could be adopted that impede a party’s right to nominate candidates for primary elections thereby undermining the very goal of the statute.
Opponents of Proposition 60 have noted this underinclusivity and maintain that it “leaves the door open for future tinkering with the primary system and still allows the special interest backers of so-called ‘open primary’…schemes to come in over and over again with new attempts to try to make changes that would harm our system.” California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). Although California Election Code § 2151 protects a party’s right to nominate candidates in an election, the proposed constitutional amendment makes no similar mention.
A. Federal Constitution
Proposition 60 does not raise any Federal Constitutional issues. However, Proposition 60 was placed on the ballot by the Legislature in an effort to counter Proposition 62 and thus, the constitutional validity of Proposition 62 should be examined.
1. Freedom of Association: Constitutional Validity of Proposition 62
Proposition 198 was passed by voters in 1996 which sought, like Proposition 62, to implement an open primary system. Office of the Secretary of State http://primary96.ss.ca.gov/e/ballot/198analysis.html. Proposition 198 was held unconstitutional for violating a political party’s First Amendment right to freedom of association since it forced a party to allow non-members to nominate a party’s nominee. CDP v. Jones, 530 U.S. at 577. Proposition 198 provided that all candidates would be listed on one ballot and voters could vote across party lines. Id. The candidate of each political party who received the most votes for an office became the nominee of that party at the general election. Id. Proposition 62 proponents would argue this is how Proposition 62 differs.
Proposition 62, although it allows voters to vote for a candidate regardless of party affiliation, would not advance “party nominees” to the general election. Rather, Proposition 62 would advance the top two vote-getters to the general election, even if they were of the same party. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). In fact, in the Supreme Court opinion on Proposition 198, Justice Scalia explicitly suggested this format as a way to obtain a blanket primary system while avoiding the constitutional problems present in Proposition 198. CDP v. Jones, 530 U.S. at 585-586. He contemplated that a proposal advancing the “top two vote-getters,” as occurs in Proposition 62, has all the characteristics of the partisan blanket primary, save the First Amendment issue since primary voters are not choosing a party’s nominee. Id. Californians for an Open Primary state that Proposition 62 was specifically written to meet the Supreme Court’s constitutional requirements laid out in their ruling against Proposition 198 and that constitutional scholars drafted the language to pass judicial scrutiny. Californians for an Open Primary, The Initiative http://www.openprimary.org/factsheet/display_issue.cfm?ID=2 (accessed Sept. 30, 2004).
On the other hand, Proposition 60 proponents maintain that Proposition 62 contains the same constitutional problems faced by Proposition 198 since the court ruled that political parties have the right to restrict primary voting to members of their own party. Pasadena Star-News, Our Primary Considerations http://www.yeson60.com/pasadena.html (accessed Sept. 29, 2004). It could be argued that the Supreme Court’s basic premise in its 2000 decision was that a party has a right to associate or not to associate and therefore, by dissolving a party’s right to associate as a party, Proposition 62 violates all political parties’ First Amendment rights. This could be rebutted by the notion that the party faithful are all still allowed to vote for the candidate that reflects party views, however, they will not be required to do so. The latter reasoning will likely prevail, especially in light of Justice Scalia’s suggestion, in a 7-2 decision, of a top-two scheme as a way to avoid constitutional problems.
In the case of Proposition 198, the Supreme Court issued a ruling of unconstitutionality based on non-members nominating a party’s nominee. CDP v. Jones, 530 U.S. at 577. However, Proposition 62 does away with the party nominee scheme and merely advances the top two vote-getters from an open pool of candidates – the general election candidates will be voter nominated, not party nominated. Californians for An Open Primary, Frequently Asked Questions http://www.openprimary.org/factsheet/display_issue.cfm?ID=4 (accessed Sept. 30, 2004). Thus, it is unlikely that Proposition 62 would be deemed unconstitutional since the unconstitutionality of Proposition 198 was based on a party being forced to associate with others through the party nominee scheme, which is absent in Proposition 62.
B. State Constitution
1. Third District Court of Appeals Ruling
a. Separate Vote Requirement
In its original form, Proposition 60 consisted of two provisions – election rights of political parties and the sale of surplus state property. Cal. Sen. Const. Amend. 18, 2003-2004 2nd Reg. Sess. 2 at 2. Californians for an Open Primary challenged the initiative on the basis that it violated the separate vote requirement of article XVIII, section 1 of the California Constitution. Californians for an Open Primary, _ Cal. App. 4th at _, 16 Cal. Rptr. 3d at 802. Section 1 provides:
The Legislature by a roll call vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.
Cal. Const. art. XVIII, § 1 [emphasis added].
The petitioners asserted that SCA 18 contained two unrelated “amendments” and therefore must be submitted separately to the voters. Californians for an Open Primary, _ Cal. App. 4th at _, 16 Cal. Rptr. 3d at 802. The Legislature argued that the two amendments in SCA 18 made up one “revision” to the constitution and it was thus within its power to submit it to the People as one package. Id. The Court rejected this argument and stated that the mere joining of two unrelated amendments does not constitute a revision. Id. at 800. It found that the two proposed changes, although substantive in nature, do not change the Constitution in a fundamental way that alters the basic governmental plan, and thus, they do not make up a revision. Id. at 808.
The Court declared that section 1 authorizes the Legislature to propose multiple amendments in a single resolution to be voted upon by the Legislature as one package; however, the package needs to then be prepared and submitted in a way where each amendment can be voted on separately by the People. Id. at 806.
b. Single Subject Rule
The California Constitution states that, “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Cal. Const. art. II, § 8(d). To determine if the initiative embraces more than one subject, it must be determined whether the provisions of the measure are reasonably germane to each other and the general purpose of the initiative. Brosnahan v. Brown, 32 Cal. 3d 236, 241 (1982). The single subject provision does not require that each of the provisions interlock in a functional relationship, but they must be reasonably related to a common theme or purpose. Senate of the State of California v. Jones, 21 Cal. 4th 1142, 1157 (1999). This requirement is intended to minimize voter confusion and to prevent joining different subjects together in order to gain tactical advantage (i.e. “logrolling” where proponents obtain approval of certain unfavorable provisions by attaching them to favorable provisions). Id. at 1157-1158.
Because the Court stated that the proposed changes are not related at all and thus, would need to be submitted separately to voters to avoid violation of the separate vote requirement, Proposition 60 was split. Californians for an Open Primary, _ Cal. App. 4th at _, 16 Cal. Rptr. 3d at 813. Thus, there is no violation of the single subject rule since Proposition 60 no longer embraces more than one subject. Despite objections by the opponents of the measure and regardless of the fact that proponents did not advocate for such a remedy, instead of removing the proposition from the ballot entirely, the Court allowed both provisions to remain on the ballot provided they were submitted separately. Id. at 815. The Court held that both provisions were constitutional and were not withdrawn by the Legislature pursuant to section 1, article XVIII of the Constitution and therefore did not need to be removed from the ballot. Id.
c. Pre-Election Review
Proposition 60 has been judicially reviewed prior to the November 2004 election. Although some cases have determined that it is usually more appropriate to review constitutional challenges to ballot propositions after an election, decisions subsequent to those cases have allowed pre-election review when the challenge is not in regards to the substance of the proposed proposition. Senate v. Jones, 21 Cal. 4th at 1153. Here, the challenge was only in regards to the process and form by which the measure was being submitted to voters.
Section 8(d) of article II of the California Constitution states that when an initiative embraces more than a single subject, it “may not be submitted to the electors.” This implies that pre-election review is necessary in order to ensure an initiative violating the single subject rule is not being placed on the ballot. Senate v. Jones, 21 Cal. 4th at 1154. Further, the presence of an invalid measure on the ballot steals attention, time and money from valid propositions, confuses and frustrates voters, and denigrates the initiative procedure itself. AFL-CIO v. Eu, 36 Cal. 3d 687, 697 (1984).
Because the challenge to Proposition 60 was based on form rather than substance, and because the constitutionally-declared single-subject requirement implies pre-election review, such review by the Third District Court of Appeal was proper. It should be noted, however, that the Supreme Court has agreed to review the legal issues at a later time, after it has sufficiently deliberated on the matter; however, due to the imminence of the deadline for submitting the Voter Information Guide to the printer, it ordered Proposition 60 be placed on the ballot in the manner directed by the Court of Appeal. Californians for an Open Primary v. Shelley, 95 P.3d 810 (Cal. 2004). Although pre-election review is proper in this case, post-election review will also occur.
2. Conflicting Measures
Proposition 60 was placed on the ballot in response to Proposition 62, the measure that would enact an open or blanket primary system where only the top two vote-getters for each office would advance to the general election, regardless of party affiliation. Institute of Governmental Studies, University of California http://www.igs.berkeley.edu/library/htPrimaryElections.html. Proposition 60 is in direct conflict with Proposition 62 since the former seeks to maintain the current closed primary system, and the latter seeks to implement an open primary system. The California Constitution states, “If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.” Cal. Const. art. II, § 10(b). In the event that both Proposition 60 and Proposition 62 are approved, the one receiving the highest number of votes will be enacted. Id.
1. Protects Voter Choice
Proponents of Proposition 60 view the measure as a means to protect voter choice by ensuring every political party has the right to nominate candidates for partisan office in a primary election and compete in a general election. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). They point out that a century ago, California citizens had to fight for the right to select political party nominees in direct primary elections. Id. This right ensures that the Legislature is held accountable to the electorate. Id. Proponents believe that Proposition 60 provides for “full, free and open debate” and allows different points of view to be heard. Id.
2. Provides a Direct Alternative to Proposition 62
Under Proposition 62, only the two top vote-getters would advance to the general
election, rather than the top vote-getter of each party as in Proposition 60. California Secretary of the State, California Voter Information Guide, Proposition 62: Elections. Primaries (2004). Proponents of Proposition 60 believe that if Proposition 62’s “top two” scheme becomes law, the five minor parties and independents of California would be excluded from the general election. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). In many districts that are heavily weighted in favor of one party, this would mean that voters’ only choice would be between candidates of the same party. Id. Republicans would be forced to vote for Democrats and Democrats would be forced to vote for Republicans. Barbara O’Conner, Director of the Institute for the Study of Politics and Media at California State, Sacramento fears Proposition 62 will result in only the two candidates with the most money being placed on the general election ballot and will prevent other candidates who have been vetted and supported in the district from advancing. The San Francisco Chronicle, Rancor and Gridlock http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/07/25/EDGIJ7PH071.DTL (accessed Aug. 28, 2004).
Proposition 60 proponents cite Louisiana’s open primary system as an example of the negative effects Proposition 62 would have if enacted. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). In a recent runoff election in Louisiana, voters were left with a choice between former Ku Klux Klan Grand Wizard David Duke and a governor who later went to prison. Id. It resulted in one of the lowest voter turnouts in the nation. Id.
If Proposition 62 had been in effect since 2000, proponents calculate that over 350 candidates would have been barred from the November ballot, meaning that over 8.2 million votes would have been banned. California Secretary of the State, California Official Voter Information Guide, Proposition 62 (2004). If Proposition 62 had been in effect in 2002, six million votes would not have been counted and fifty general election races would have been limited to candidates from the same party. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004).
Proponents of Proposition 60 also point out that Proposition 62 is sponsored by insurance companies, financial institutions, and failed wealthy politicians and that under Proposition 62, California’s diverse Legislature will revert back to being dominated by “rich white males.” Id. A recent inventory of contributions to Proposition 62 include $535,000 from insurance companies and financial institutions; $350,000 from wealthy politicians; and $145,000 from Real Estate and Development companies. Committee to Preserve Voter Choice, Follow the Moneytrail…http://www.yeson60.com/update0909.html (accessed Sept. 30, 2004). Proposition 62 is viewed as a measure that will “depress voter turnout, elevate the importance of money and fame, increase opportunities for extremist candidates, and decrease opportunities for minority officeholders.” California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004).
Despite claims by the Proponents of Proposition 62 that their measure creates an “open primary,” Proposition 60 proponents stress a distinction between an open primary and a blanket primary and claim that Proposition 62 is the more extreme blanket primary. Committee to Preserve Voter Choice, Background of California Election Law: Understanding Primary Elections http://www.yeson60.com/background.html (accessed Sept. 29, 2004). In an open primary, a voter, regardless of registration, can ask for the ballot of a specific party but at least there is some minimal commitment to participate in a political party. Id. However, in a blanket primary every voter gets the same ballot with every candidate’s name listed – it is a mix and match where the top voting candidate advances to the general election. Id. Proposition 62 would list all candidates on one ballot without regard to party affiliation. California Secretary of the State, California Official Voter Information Guide, Proposition 62 (2004). Proposition 60 proponents point out that Sacramento Superior Court Judge Judy Hersher ordered Secretary of State Kevin Shelley to strike all references to an “open primary” in official state election materials. Committee to Protect Voter Choice, Sacramento Judge Says Proposition 62 Is Not An Open Primary http://www.yeson60.com/prop62_judge.html (accessed Sept. 29, 2004). However, the statutory language of Proposition 62 continues to entitle the measure the “Voter Choice Open Primary Act.” California Secretary of the State, California Official Voter Information Guide, Text of Proposed Laws, Proposition 62 (2004). Proponents reject this open primary characterization and assert that Proposition 62 promotes the more radical blanket primary scheme. Committee to Preserve Voter Choice http://www.yeson60.com/background.html (accessed Sept. 29, 2004).
Proponents of Proposition 60 include State Senator Ross Johnson (R – Irvine), State Senator Dede Alpert (D – San Diego), Former Chairman of the California Fair Political Practices Commission Dan Stanford, Director for the Institute for the Study of Politics & Media at Cal State Sacramento Barbara O’Connor, and retired Associate Justice for the 5th District Court of Appeal George N. Zenovich. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). . Organizations in support include the California School Employees Association, the Howard Jarvis Taxpayers Association, the California Congress of Seniors, the California Professional Firefighters, and the California Federation of Teachers. Committee to Protect Voter Choice, Yes on 60/No on Prop 62 List of Supporters http://www.yeson60.com/our_coalition.html (accessed Sept. 29, 2004).
There are two sectors of opposition to Proposition 60 – one sector approves of the closed primary system but opposes Proposition 60 merely because it does not go far enough. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). The other sector opposes Proposition 60 because it favors a blanket primary system such as that proposed in Proposition 62. California Secretary of the State, California Official Voter Information Guide, Proposition 62 (2004).
1. Incomplete Attempt for Reform
Some opponents claim that the authors of Proposition 60 compromised too much in that they had an opportunity to permanently protect California’s primary system but failed to do so. California Secretary of the State, California Official Voter Information Guide, Proposition 60 (2004). These Opponents state that Proposition 60 does not address how primary elections are to be conducted and therefore leaves the door open for blanket primary advocates to assert continuous schemes to transform the closed primary system into an open or blanket one. Id. “Proposition 60 is only half a response” is the theme asserted by these opponents who claim that voters are being denied permanent protection for the current primary system. Id.
Opponents holding this view include State Senator Bill Morrow (R – Oceanside) and State Assemblymember Sarah Reyes (D – Fresno). Id.
2. The Closed Primary System Gives Control to Party Bosses and Politicians
Opponents of the closed primary system claim that the system is stacked against
voters. California Secretary of the State, California Official Voter Information Guide, Proposition 62 (2004). They believe that politicians of both major parties have cut a “backroom deal” to protect incumbents and have built “safe” legislative districts where party registration heavily favors one side. Id. As a result, the winner of the majority party’s primary election is essentially guaranteed to win at the general election, making the general election meaningless. Id. Opponents state that voters who belong to the minority party have no real voice and the political and party bosses control the election system. Id.
Opponents also believe that a blanket primary prevents extremism and provides for a legislature that is more in touch with the will of voters. Id. One editorial stated, “California’s election system – with its exclusionary primaries and gerrymandered districts – has become the great enabler that sends to Sacramento the most extreme lawmakers on the right and left.” The San Francisco Chronicle http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/07/25/EDGIJ7PH071.DTL. Another editorial characterized the current closed primary system as one that “virtually guarantees that nearly all the seats are safe even if the candidate is a raving lunatic or a fool. That means many of the winners are extremists…while centrist or moderate candidates who might actually represent the voters of California better are all but shut out.” LA Daily News, Deliberate Confusion www.dailynews.com/Stories/ 0,1413,200~20951~2352037,00.html. In response to Proponents’ claims that Proposition 60 will deny third parties a voice, Proposition 62’s political consultant Kevin Spillane believes that in heavily weighted districts, voters of minority parties would have more of a voice since they can vote for a candidate closer to their views rather than for a co-believer who is bound to lose. Id.
3. Proposition 60 is a Scare Campaign Designed to Confuse Voters
Opponents state that the party bosses are running a scare campaign to hang on to their power. Id. Opponents point out that the closed primary system is nothing new, as in 1996, voters passed Proposition 198 (a blanket primary measure) with sixty percent of the vote. Id. Contrary to the Proponents’ assertion that the closed primary would reduce diversity, in 1998 and 2000 when a closed primary system was in place, the number of women and minorities elected increased. Id.
Open primary backers believe Proposition 60 is a “poison pill” designed to confuse voters and defeat Proposition 62 in “less than an honest manner.” The San Francisco Chronicle http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/07/25/EDGIJ7PH071.DTL. Opponents claim that Proposition 60 is a red herring intended to confuse voters by sounding similar to Proposition 62 but not really doing anything since it simply retains the old system. LA Daily News www.dailynews.com/Stories/ 0,1413,200~20951~2352037,00.html.
Opponents holding this view include Proposition 62 proponents such as State Controller Steve Westly, Secretary for Education Richard Riordan, Former State Senator Becky Morgan, U.S. Senator John McCain, Former White House Chief of Staff to President Clinton Leon Panetta, The Orange County Business Council and The Committee for an Independent Voice. California Secretary of the State, California Official Voter Information Guide, Proposition 62 (2004).
As an attempt to maintain the closed primary system, Proposition 60 will be presented before voters in the November 2004 election. If approved with more votes than Proposition 62, Proposition 60 will amend the California Constitution to ensure that a political party who participates in the primary election may also participate in the general election and that a party cannot be denied the right to place its top vote-getting candidate on the general election ballot. Proponents stress that Proposition 60 is necessary to protect voter choice – to ensure that voters will not be forced to vote for a candidate outside of their party or their belief system and to guarantee the rights of a political party to compete for partisan offices in a general election. Opponents emphasize either that Proposition 60 falls too short of the mark or that it is the open primary system, not the closed Proposition 60 system, that truly protects voter choice by ensuring people are not forced to vote for extreme candidates where the winner is, due to gerrymandering, virtually pre-determined by politicians and party bosses.
The situation here is unique in that there are two competing, directly conflicting measures on the ballot. The measure that receives the most votes will be enacted. A recent field poll indicated that voters are inclined to vote yes on both measures. The Field Poll, Props. 62 and 60: Voters Favor Changes to Primary Election Rule http://field.com/fieldpollonline/subscribers/RLS2131.pdf (accessed Aug. 28, 2004). Whether this reinforces the opponents’ accusations of deliberate confusion by the proponents or whether this indicates that it is just too early to tell, come November 2nd, California’s election system will be known.