In nonpartisan elections, the first round IS an election. If someone gets 50% in the first round, the person is elected.
Under California and Washington top-two, the first round is not an election. That is because no one can be elected, due to the federal law that says states must hold congressional elections in November. Even if one candidate gets 100% of the votes in the first round, that person is not thereby elected. So my argument does not mean that non-partisan elections must be unconstitutional.
And, as I thought I said clearly in my first e-mail today, I am not arguing about the rights of parties; I am arguing about the rights of candidates and voters.
--- On Thu, 1/13/11, Rick Hasen <hasenr@gmail.com> wrote:
From: Rick Hasen <hasenr@gmail.com>
Subject: Re: [EL] a different take on top-two chances in 9th circuit
To: richardwinger@yahoo.com
Cc: election-law@mailman.lls.edu
Date: Thursday, January 13, 2011, 1:02 PM
Richard is right. My view is that the top two is not a party
primary, and therefore minor parties have no basis to complain. In
other words, political parties have no right to demand that a state
conducts a party primary. If they did, then nonpartisan primaries
used in cities would also be unconstitutional.
Richard and I debated this on the listserv about a year or so ago,
so I don't expect to engage in an extended discussion over this
again.
Rick
On 1/13/2011 11:42 AM, Richard Winger wrote:
Rick Hasen has
pooh-poohed the idea that the 9th circuit might overturn
Washington state's top-two system. His discussion focuses
only on the freedom of association problem, and makes no
mention of the ballot access problem.
Munro v Socialist Workers Party is the leading US Supreme
Court precedent on ballot access, when the barrier to the
election itself is running in a prior primary and polling
a certain share of the vote. Munro v Socialist Workers
Party said there is no constitutional difference between a
petition barrier to the general election ballot, versus a
primary vote showing. And it went on to uphold an old
Washington state law that said it is constitutional to
require candidates to run in a blanket primary and poll 1%
of the vote cast for that office, as a condition of being
on the November ballot.
The US Supreme Court has not weighed in on the ballot
access problem with top-two primaries. The March 2008
decision of the US Supreme Court in Washington State
Grange v Washington State Republican Party said in
footnote eleven that the Court was not deciding the ballot
access argument.
The only court that has upheld top-two against the ballot
access argument is the US District Court in Washington
state. That court ignored the US Supreme Court language
in Munro v SWP which said that there is no distinction
between a petition barrier and a vote test barrier in a
prior election. Instead, the US District Court depended
on a sentence in Munro v SWP that is dicta. Justice White
said the burden on a candidate who has access to a primary
ballot, but not a general election ballot, is "slight."
But the Munro case involved a special US Senate election
in which the prior and the general were only 4 weeks
apart. Also that special election was in an odd year, not
in the prime campaign season for an even-year national
congressional/presidential election.
Rick would probably respond that top-two systems aren't
about parties. I would say to that, that I am not talking
about the rights of parties. Voters have a right to vote
for someone in the general election besides the two
strongest candidates. And candidates have a right to run
in the general election even if they aren't one of two
strongest candidates. Voters and candidates have rights
in the general election, particularly in congressional
elections, which Congress has mandated to be held in
November.
On the average, a candidate running in top-two or blanket
primaries needs 30% of the vote in order to advance to the
November election. 30% is way too high a ballot access
barrier. Courts have long ago invalidated all other
barriers to the general election that are in excess of 5%
of the electorate.
In 2008, the 9th circuit invalidated the Arizona ballot
access law for independent candidates, and yet the ballot
access barrier under the Washington state top-two system
is far, far more stringent than the Arizona law.
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