McGeorge School of Law

Proposition 62

Proposition 62:
Voters Choice Open Primary Act.

By Rebecca Olson

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., Political Science, Tulane University, 1998

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

Proposition 62 would change the primary election system in California by allowing voters of any party to vote for candidates of any party in the primary election. The top two vote-getters would advance to the general election regardless of party affiliation, even if one of the two received a majority of the vote. The law would apply to all partisan races, except presidential nominations and elections of party central committee members. National party rules require that only voters registered with a particular party cast ballots for that party's presidential candidates. Inst. of Govtl. Stud. Lib. Staff, Hot Topics, (accessed September 12, 2004.)
The goals of Proposition 62 include: election of moderate, centrist candidates, even in districts with heavily partisan voters, encouraging candidates in the primary to appeal to a wide spectrum of voters in order to win enough votes to be in the "top two" on the general election ballot, and encouraging voter participation. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 62 (2004).

Changing the primary system in California was tried before. A blanket primary system was put into place after voters passed Proposition 198 in 1996, but subsequently struck down by the United States Supreme Court in 2000. CDP v. Jones, 530 U.S. 567. However, the drafters of Proposition 62 had the CDP v. Jones case in mind while creating the new proposition, and that may help the initiative survive a court challenge if it passes in November.

There is another potential obstacle to the passage of this initiative. Proposition 60 is on the ballot for the November general election, and it also affects the primary system. Proposition 60 would amend the California Constitution to guarantee a qualified party's nominee in the primary representation on the general election ballot. If Proposition 60 gets more votes than Proposition 62, it will become law and Proposition 62 will not.

II. The Law

A. Current Law

The current primary system in California today is known as a closed primary system. This means that registered voters affiliated with a party (meaning a person who declared party affiliation when registering to vote), receives a ballot containing the candidates for each office in the declared party, as well as all candidates for nonpartisan officers. In California, section 2151 of the Elections Code allows individual political parties to permit non-affiliated voters to receive their party's ballot.

1. History: Proposition 198

In March 1996, voters in California voted on and approved Proposition 198, creating a "blanket primary" system. The system allowed voters to vote for any candidate in the primary election, regardless of party affiliation. All voters received one ballot, with all of the candidates from each qualified party. The candidate from each party receiving the most votes in the primary appeared on the general election ballot.

In June 2000, the United States Supreme Court ruled that the system adopted pursuant to Proposition 198 was unconstitutional, and could no longer be used because "[t]he burden Proposition 198 places on petitioner's rights of political association is both severe and unnecessary." CDP, 530 U.S. at 586. California reverted back to the closed primary system in the 2002 primary. The litigation of the Proposition 198 case is discussed in detail under Constitutional Issues.

2. Types of Systems

There are other types of primary election systems. The closed primary system is the one described above, and is currently used in California. A limited open primary is a system in which voters choose which party's ballot to receive on Election Day. Like the closed primary, a voter can choose candidates from only one political party. Each party's top vote getter advances to the general election. A blanket primary (as adopted by Proposition 198) allows voters to receive the same ballot regardless of party affiliation, and lists all of the candidates. The proposal under Proposition 62, like the system adopted under Proposition 198, has all of the voters receive the same ballot. Voters can choose candidates from different parties for different offices. Unlike the blanket primary, only the top two vote-getters advance to the general election, regardless of party affiliation.

B. Changes Proposed

Proposition 62 is a constitutional amendment and statute. It will change Section 5 of Article II of the California Constitution by adding provisions of the Voter Choice Open Primary Act. This section would be amended to add the offices for which this new type of primary would apply. The state offices are: Governor, Lieutenant Governor, Attorney General, Insurance Commissioner, Controller, Secretary of State, Treasurer, Member of the State Legislature, and Member of the Board of Equalization. It would add Member of the United States House of Representatives, and Member of the United States Senate for federal elections. It will not apply to the office of President or party central committee members. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 62 (2004).

Proposition 62 will also amend, repeal, and add various sections of the Elections Code. While many of these changes are merely technical, there are a few general categories of proposed changes that should be analyzed closely. First, sections will be added to the Elections Code eliminating the requirement that a candidate be registered to vote with a particular political party before running for a partisan office. Id. at 85. This means that voters and candidates can choose "no party" when registering to vote or declaring their candidacy. Various sections of the code would be changed to reflect this new terminology.

Second, the Elections Code would be amended to ease the requirements for political parties and candidates to participate in primary elections. Id. at 88. For instance, Section 31 of the Act would amend section 5100 of the Elections Code to only require 1/3 of one percent of the vote of the state in the last gubernatorial election to have declared their registration with a party in order for that party to participate in the primary election. Id. The current requirement is two percent of the vote in the state in the last gubernatorial election. Cal. Elections Code Ann. § 5100 (West 2004).

Third, the Act would repeal section 8003 of the Elections Code. This section prohibits candidates from running for more than one office, in one election. Since the full section is repealed, it seems that the prohibition of running for two offices in the same election is allowable under Proposition 62.

Fourth, candidates will no longer be required to gather signatures for their candidacy from only members of their political party. They will be required only to collect signatures from any registered voters, regardless of party affiliation. Id. at 94.

C. Louisiana Primary

Opponents characterize the primary system under Proposition 62, as a "Louisiana-style" primary system. In Louisiana, all of the candidates appear on the ballot, like the proposal under this initiative, but in Louisiana, if a candidate received a majority of the vote, that candidate is the winner outright. There is then no election in November. Daniel Hays Lowensten & Richard L. Hasen, Election Law ch. 9. 493 (California Academic Press 2000). An election for federal offices on the first Tuesday after the first Monday in November is required by 2 U.S.C. §§ 1 and 7. Id. In Foster v. Love, 522 U.S. 67 (1997), the Supreme Court has held that the possibility of a federal candidate being elected in the primary violates the statutory requirement of a uniform nationwide date for the election of members of Congress. Louisiana then changed its state law to hold the primary in November, and the general election in December. Center for Voting and Democracy, Louisiana's Nonpartisan Primary, (accessed Oct. 3, 2004). Under the scheme proposed by Proposition 62, a "top-two" candidate will have a November election regardless of whether they gain a majority of the vote. While this initiative is not exactly like the system in Louisiana, it is the closest system in the country to Proposition 62.

III. Drafting Issues

A. Severability

While there do not seem to be any significant drafting issues, Proposition 62 does contain a severability clause. It states: "If any provision of this act. . .is held invalid, that invalidity shall not affect other provisions. . .of the act that can be given effect in the absence of the invalid provisions. . ." Prop. 62,, § 103. If any of the provisions are found to be invalid or unconstitutional, the court will apply the three severability tests to determine if the affected sections can be severed from the rest. "The cases provide three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable." Gerken v. Fair Political Practices Comm'n, 6 Cal. 4th 707, 714 (1993). Difficulty arises in determining whether the text is severable from any others, if only for the fact there are 103 sections. However, since it amends specific sections of the Constitution and Elections Code, parts are likely to be found severable, if it is challenged at all.

IV. Constitutional Issues

A. Federal Constitution

Under California Democratic Party v. Jones, Proposition 198, which created a blanket primary system in California, was held unconstitutional by the United States Supreme Court. 530 U.S. 567. A blanket primary system allows voters to vote for any candidate in the primary election, regardless of party affiliation, and the candidate from each party receiving the most votes in the primary appears on the general election ballot. The issue in CDP v. Jones was whether the State of California could use a blanket primary to determine a party's nominee for the general election. Id. at 569. The California Democratic Party, the California Republican Party, the Libertarian Party of California, and the Peace and Freedom Party brought suit, claiming the blanket primary violated their parties' right to association by allowing non-members of their parties to choose their nominees for the general election. Id. at 571.

The California Secretary of State and Californians for an Open Primary, respondents in the case, argued that since primaries play an important role in citizens' selection of public officials, primaries are public proceedings, instead of private political party business. Therefore, the state must ensure that primaries serve the public interest. Id. at 572.

While the Court agreed that states have a major role to play in regulating the election process, it noted that the processes by which parties select their nominees are not public affairs that the state may regulate freely. Id. at 572-73. When states regulate the parties' internal processes, they must act within the constraints of the Constitution. Id. at 573. The Court reasoned that Proposition 198 was a regulation of the parties' internal processes, since it would affect how the parties' nominees were chosen. Therefore, the law must survive strict scrutiny, or it is unconstitutional. Upon concluding "the burden of Proposition 198 places on petitioners' rights of political association is . . . severe," Justice Scalia determined that Proposition 198 was therefore unconstitutional, unless it was narrowly tailored to serve a compelling state interest. Id. at 586, 582.

However, the Court opined, even if the state interests behind Proposition 198, including: producing elected officials who better represent the electorate, expanding the debate among candidates beyond partisan concerns, preventing voter disenfranchisement, promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy were compelling governmental interests, Proposition 198 was not a narrowly tailored means for furthering them. Id. at 584-85. The Court reasoned that voters can choose a particular party's ballot before voting in the primary, thereby preventing voter disenfranchisement. The Court felt that requiring voters to choose a party was not a state-imposed restriction on the voter's right, however, "compelling party members to accept his selection of their nominee is a state-imposed restriction upon theirs." Id. at 584 (emphasis added). The Court reasoned that Proposition 198 placed too great a burden on the parties' right to association, and the blanket primary system adopted was not narrowly tailored enough to overcome the burden of strict scrutiny.

The proponents of Proposition 62 had this case in mind during the drafting process. At the end of his opinion, Justice Scalia offers a more narrowly tailored means of furthering the interests of an open primary system: a nonpartisan blanket primary. He writes, "[g]enerally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot – which may include nomination by established parties and voter-participation requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters. . .then move on to the general election." Id. at 585. He noted that this system has all of the characteristics of the partisan blanket primary (as proposed in Proposition 198), except primary voters are not choosing a party's nominee. Id. at 585-86. The Court noted that this system would not severely burden a political party's right to association. Id. Proposition 62 attempts to put into place the system described by Justice Scalia. The scheme proposed would allow each voter to vote for any candidate, and the top two vote getters would move on to the general election, without selecting a party's nominee. The opinion was joined by five other justices plus one concurrence, while two dissented. While Scalia's description of a primary system that is constitutional is dicta, therefore not a binding part of the decision, Proposition 62 may withstand constitutional scrutiny under the reasoning in CDP v. Jones, if it is found the system does not select parties' nominees.

B. California Constitution

1. Competing Initiative: Proposition 60

The California Constitution provides that if two competing measures appear on the same ballot and pass, the measure garnering the higher percentage of the vote becomes controlling. Cal. Const. art. II, § 10. On the November 2, 2004 ballot, there are two propositions addressing primary elections: Proposition 62 and Proposition 60. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 60 (2004). Again, Proposition 60 would amend the California Constitution to guarantee a party's nominee in the primary representation on the general election ballot. (For a full analysis of Proposition 60, please see the section on that initiative.) There is the potential that if Proposition 62 passes, but Proposition 60 passes by more votes, Proposition 62 will not take effect. Voters should keep this in mind when voting on both initiatives.

V. Public Policy Issues

A. Proponents

1. Voter Disenfranchisement & Competitive Elections

Proponents argue that Proposition 62 will increase voter participation because under the blanket primary system, the 1998 and 2000 elections had increased voter turnout. Californians for an Open Primary, Fact Sheet on Open Primary, (accessed Sept. 12, 2004). Under this proposition, the top two candidates would more likely be serious, viable candidates, thereby generating interest in the election. Id. Two million voters that are currently registered with a party will not be able to vote on all candidates. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 62 (2004).

2. Politician Responsiveness

Proponents claim that Proposition 62 will make the state's elected officials more accountable to all voters, not just the special interest and those at the ideological extremes. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 62 (2004). They believe that this system will result in the election of more moderate legislators, therefore requiring those legislators to take more centrist positions on issues. Id.

B. Opponents

1. Weaken Party System

Opponents argue that Proposition 62 will weaken the party systems because it will reduce the incentive for voters to register with particular parties. Inst. of Govtl. Stud. Lib. Staff, Hot Topics, (accessed Sept. 12, 2004). This will weaken the party system which has negative consequences for the state legislature, which to some Californians already suffers from disorganization and lack of discipline. Id. This would cause special interests and lobbyists to have the power in Washington D.C. and Sacramento. Id.

2. Limit Choice

Opponents contend that Proposition 62, if enacted, would reduce voter choice in the general election, not increase it. Third party candidates would almost never get enough votes to be "top two" candidates. Rather, the top two would be a Democrat and Republican or two of the same major party, therefore causing the general election to merely be a runoff. Id. Candidates from California's five minor parties, including the Green Party and the Libertarian Party, would find it almost impossible to reach the November election. Dan Smith, Sacramento Bee, Politics, Prop. 62 Puts Party Lines on the Line, (accessed Oct. 3, 2004). The Libertarian Party of California believes this initiative would destroy third parties and limit voter choice. Libertarian Party of California, Ballot Recommendations, (accessed Oct. 4, 2004). If third parties are routinely denied access to the ballot, California may have another Constitutional issue on its hands. In Williams v. Rhodes, 393 U.S. 23 (1968), the United States Supreme Court struck down an Ohio law that made it virtually impossible for any party to qualify on the primary ballot except the Republican and Democratic parties. Generally, the Supreme Court will uphold requirements that make it difficult for third parties to satisfy, but if those burdens are so severe that the candidates cannot get on even showing an amount of support, it will intervene. However, since the changes to section 5100 of the Elections Code under Proposition 62 lower the requirements of number of signatures that must be gathered and from whom, it is unlikely a change would be upheld (see Proposed Changes section above).

3. Extremism

Opponents contend that the proposition would cause divisive intraparty contests, and give fringe candidates the chance to be in the top two. This type of "Louisiana-style" primary breeds extremism because the large fields of mainstream candidates steal votes from each other, thus paving the way for the election of fringe candidates, such as when one memorable Louisiana governor's runoff pitted a crook against a former leader of the KKK. Commentary, Orange County Register, It's Power Politics – Dressed Up As Reform, (accessed Oct. 16, 2004).

C. Fiscal Effect

According to the analysis by the Legislative Analysts Office, this measure would change some election administrative procedures. In some cases, costs will increase because there will be more candidates on the ballot in the primary, which may result in higher printing and mailing costs for county election administrators. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 62 (2004). However, if counties do not have to print multiple types of primary ballots, and the general election ballots are limited to the top two vote getters, it may reduce printing and mailing costs. Therefore, the net fiscal effects may not be significant.

VI. Conclusion

On November 2, 2004, voters will decide whether to alter the California primary election system to restrict the candidates on the general election ballot to the "top two" vote getters, rather than the nominees from each political party. They will also decide whether to allow every voter to choose from among all of the candidates, regardless of party or to maintain the party primary system already in place.

Voters should consider the potential conflict of Proposition 60 because passage of both could result in only one taking effect. Voters should carefully balance the freedom of voters to choose candidates from any party regardless of affiliation, with the possibility that the general election ballot could contain two members of the same party.