California primary election law has a complex history. The direct primary first became law in 1909 as a progressive era reform. The legislation created a closed primary system in which registered voters of a particular party received only the ballot of that party. Registered voters who declined to state a party preference received a ballot containing only non-partisan offices. In 1913, in a further progressive era reform, cross filing was instituted. Cross filing permitted a candidate to appear on more than one party ballot for the same office, and to become the nominee of more than one party. Cross filing was eliminated in 1959.
The next big change in primary election law occurred in 1996 with the passage of Proposition 198in the March primary. Called the "Open Primary Initiative," Proposition 198 created a Louisiana-style blanket primary for California. The blanket primary permitted all voters, both registered partisans and "declined to state" independents, to choose among all the the candidates on the primary ballot, irrespective of party affiliation. The intent was to encourage political participation and to promote the selection of "centerist" candidates who would need to appeal to a broad spectrum of voters to win.
The blanket primary system was in effect for the primary elections of June 1998 and March 2000. In June 2000 the United States Supreme Court declared Proposition 198 unconstitutional. InCalifornia Democratic Party v. Jones, the high court invoked the First Amendment right of association and ruled that political parties in California have a constitutional right to exclude nonparty members in primary elections.
In September 2000, in the aftermath of the Supreme Court decision, California enacted SB28 (Ch. 898, Stats. 2000) which established a modified closed primary. SB28 took effect on January 1, 2001 and is currently in force, pending the results of the November 2004 election. Under SB28, registered voters of a particular party receive only the ballot of that party, as was the case with California's earlier closed primary law. However, unaffiliated ("decline to state") voters may choose a party ballot, but only if the party has authorized unaffiliated voters to participate in its primary. The Democratic and Republican parties allowed such participation in the 2002 and 2004 primaries. Critics of the current law find is provisions obscure and confusing, and note that many unaffiliated voters in the 2002 and 2004 primaries were unaware that they had a choice of party ballots.
The Two Ballot Measures
Two competing primary election measures appear on the November 2004 ballot. Proposition 62was placed on the ballot in an initiative campaign led by a coalition of corporations, business executives and politicians. It would restore a version of the blanket primary in which the top two vote-getters would always appear on the general election ballot. Proposition 60 (SCA18) was placed on the ballot by the legislature in June 2004 to counter Proposition 62. It would essentially preserve the existing modified closed primary system. If both propositions pass, the one with the most votes prevails.
Proposition 62 provides for a single primary ballot in which all state and congressional candidates appear together, regardless of party affiliation. The top two vote getters for each office would appear on the general election ballot, even if one of the two received a majority of the vote (or 80 or 90 percent of vote), and even if the two were of the same party. The presidential nominating process would be unaffected by Proposition 62. National party rules require that only voters registered with a particular party cast ballots for that party's presidential candidates.
Proposition 62 is officially called the Voter Choice Open Primary Act, but it might be better understood as advocating a version of the blanket primary. In legal and political science circles "open primary" is generally understood to refer to a system in which which each party has a separate ballot and the voter chooses among the ballots on election day. The Proposition 62 version of the blanket primary differs from its Proposition 198 predecessor in that it would create a "top two" system in which candidates in the general election are the top vote getters, not official party nominees.
Proposition 62 proponents have the same overarching goal that Proposition 198 backers had: to promote the election of moderate, centerist candidates, even in districts heavily gerrymandered to favor Democrats or Republicans, by encouraging candidates in the primary to appeal to a wide spectrum of voters in order to win enough votes to be "top two" candidates in the general election. Proposition 62 proponents also seek to discourage the phenomenon of third party "spoilers" in general elections. A third party spoiler is a candidate who is perceived as drawing support away from a major party candidate and tipping the general election to favor the opposing major party candidate. The most egregious instance of the spoiler phenomenon occurs when a third party candidate receives behind-the-scenes help or is otherwise manipulated in order to divert support away from a major party candidate.
Supporters also contend that Proposition 62 would encourage voter participation. Legislative districts are so heavily gerrymandered to favor the major parties that the general election outcome is usually a foregone conclusion. Under Proposition 62, supporters say, the top two candidates in the general election would more likely be serious, viable candidates, and thereby generate interest in the general election.
Proposition 62 opponents make three basic arguments. One is that Proposition 62 would further weaken California's political parties by reducing the incentive of voters to register with a political party. Opponents argue that weakened parties have especially bad consequences for the state legislature, which in their view already suffers from disorganization and lack of discipline. Lobbyists and special interests would fill the power vacuum left by weakened parties.
Second, opponents contend that Proposition 62 would turn the primaries into free-for-all races, fostering divisive intraparty contests and giving fringe candidates the chance to be top vote getters. In this vein, opponents assert that single-ballot primaries would be fertile ground for the spoiler phenomenon that proponents find objectionable in the general election.
Third, opponents argue that Proposition 62 would reduce voter choice in the general election. Third party candidates, they maintain, would almost never get enough votes to be "top two" candidates. Voters would find only the top Democrat and the top Republican (or perhaps two Democrats or two Republicans) on the general election ballot, and general elections would be mere runoff elections.
Proposition 60 would insert a provision into the state constitution giving all political parties participating in a primary election the right to advance their top vote-getting candidate(s) to the general election. Regarding primary elections per se, Proposition 60 says only that there shall be "primary elections for partisan offices,including an open presidential primary." Thus Proposition 60 would maintain the election system in effect since 2001.
Authored by Senators Ross Johnson (R-Irvine) and Deirdre Albert (D-San Diego), SCA18), which became Proposition 60, was placed on the ballot as the state legislature's alternative to Proposition 62. SCA18 was rushed through the legislature just ahead of the deadline for placing measures on the November general election ballot, and met the two-thirds vote requirement for such measures with wide bipartisan support.
Initially Proposition 60 included a provision requiring that proceeds from the sale of surplus state property be used to pay down the $15 billion in deficit bonds included in the 2003-2004 budget package. Proposition 60 was challenged in court on the ground that it violated the state constitution's ban on multi-subject ballot measures. Petitioners in Californians for an Open Primary v. Shelley (2004 Cal. App. Lexis 1259) sought its removal from the ballot altogether. In a July 30, 2004 decision, the California Third District Court of Appeal allowed Proposition 60 to stay on the ballot, but ordered that it be split into two separate propositions.
On August 3, 2004 Secretary of State Kevin Shelley announced that the "surplus state property" provision would become Proposition 60A on the November ballot. On August 9, 2004, with the deadline for printing the Official Voter Information Guide looming, the California Supreme Court let stand the appellate court decision bifurcating Proposition 60, but agreed to review the legal issues at a later time, after "adequate briefing, oral argument and deliberation." The end result of the litigation is that Proposition 60 remains on the general election ballot as a single-subject measure concerned with elections only.
Proponents argue that Proposition 60 would preserve voter choice, and that voters need an alternative to the radical changes proffered in Proposition 62. Opponents contend that Proposition 60 is a crude "poison pill" measure intended to sidetrack Proposition 62 and confuse voters.
Official Voter Information
Voter Information Guide
Individual Campaign Committees
Total Contributions and Expenditures (select "Nov. 2004 election" and "Prop. 62" in dropdown boxes)
Public Opinion Sites
"Late-breaking surge of No votes on Prop. 66 (three strikes limits) puts outcome in doubt. Declining support for Prop. 62 (open primary). Heavy No vote on two Indian gambling measures.,"Field Poll, Oct. 30, 2004. (Release #2146).
"Props. 62 and 60: Voters continue to favor both primary election rules ballot propositions, although many are undecided.," Field Poll, Oct. 14, 2004. (Release #2142).
"Support for open primary; health insurance referendum lags despite health care worries," PPIC Statewide Survey, Sept. 2004.
See p. vi.
"Props. 62 and 60: voters favor changes to primary election rules," Field Poll, Aug. 17, 2004. (Release #2131).
"Large majority supports easing of 'Three Strikes' law: telephone surtax to fund emergency services and open primary law also favored, but by narrower .argins," Field Poll, June 10, 2004. (Release no. 2121).