A group of Californians has filed a proposed
initiative with the California Attorney General,
called the "Voter Choice Open Primary Act". They
expect to start circulating the initiative this month.
I believe the proposed initiative is poor public
policy, and that it might be unconstitutional under
Williams v Rhodes, 393 US 23 (1968).
The proposed law would provide that all candidates for partisan
federal and state office (other than
president) would appear on the March primary ballot.
All voters would receive the same ballot. All voters
could vote for any candidate listed, so that a voter
might vote for a member of one party for one office,
and then for a member of a different party for another office. The
top two vote-getters would have a run-off in November. There would be
no access to the November ballot for anyone, except by placing #1 or
#2 in March. However, write-in space would exist. There
would always be a November run-off between the top
two, even if one person had polled over 50% in March
(if only one person had filed for March, that person
would still appear on the November ballot, with
write-in space also provided for that race).
In Williams v Rhodes, the US Supreme Court said that
freedom of association requires that parties not yet
big enough to win, must nevertheless be permitted to
get on the ballot.
I have just looked at California election returns in
which the primary election (but not the general
election) was run in the manner that this proposed law
would require. These past California elections are:
all partisan primaries in 1998 and 2000; and all
special elections (the British would call them
by-elections) from 1971 through the present. The
reason the 1998 and 2000 primaries have the same characteristics as
the primaries proposed, is because California used a blanket primary
in 1998 and 2000.
There are 398 elections in which that primary system
was used in California, and in which at least two
candidates ran in that election. There were 88
special elections (by-elections), 158 offices up in
1998, and 152 in 2000, excluding president.
The 2nd place finisher in these 398 primaries averaged
26.9% of the vote in the special primaries, 25.8% in
the 1998 primaries, and 25.3% in the 2000 primaries.
Thus, the level of voter support needed for a
candidate to obtain a place on the general election
ballot is consistently more than 25%, on the average.
A ballot access barrier requiring voter support of
25%, before members of a minor party can obtain a
place on the general election ballot, seems to violate Williams v
Rhodes. Williams v Rhodes invalidated a petition requirement of 15%
of the last vote cast. Since then, all mandatory ballot access
petition requirements for minor parties that were greater than
5% of either the last vote cast, or the number of
registered voters, have been repealed or invalidated.
California still has a 10% petition for new parties on
the books, but it is not mandatory, since there is an
alternative 1% membership test.
More striking, from the 398 primaries California has conducted under
the system proposed by the initiative, in not one instance did a minor
party member ever place first or second. The only exceptions have
been 12 primaries in which only one member of either major
party had filed. Therefore, this large body of
evidence suggests that if the proposed initiative were
enacted, minor party members would be barred from the
general election ballot in all instances, except for
president (since the initiative doesn't deal with
president), and in races in which only one major party
member had filed, approximately 3% of all partisan
races and of course among the most boring races (if an
incumbant is so well-entrenched that no Democrat or
Republican files to run against him or her, it's a
boring election).
I hope for feedback, especially from Californians.
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