The Open Primary proposal will appear on the June, 2010 ballot. If approved by voters it would change the way elections are conducted for partisan offices in California.

The Current System:  Currently, candidates for each party appear on separate ballots.  Republican voters get ballots with only Republican candidates on the ballot and Democratic voters get ballots with only Democratic candidates.  Libertarians and Greens get ballots with only Libertarian and Peace and Freedom candidates respectively.  Each political party can choose to allow independents to vote in their primaries (currently both the Democratic and the Republican Parties allow independents).  However, each independent voter still receives a non-partisan ballot containing issues only (no partisan candidates included), unless the voter specifically asks for a partisan ballot.  Independents must make a single choice of ballots each election.  They cannot, for example, vote on the Democratic ballot for Congress and the Republican ballot for Governor.  The highest vote getter in each party primary then goes to a general election ballot in November.  Independents are not allowed to be candidates until the November general election.  To get their name on the ballot, they must successfully circulate voter signed petitions.  The highest vote getter in the November general election wins even if his or her vote total is less than 50% of the total votes cast (there may be more than two candidates).

Proposed Top Two Open Primary: Under the Top Two Open Primary all candidates for a given office appear on the same June primary ballot. All voters get the same ballot including all candidate names.  The two candidates with the two highest vote totals in the primary move on to the general election, regardless of their party affiliation.  The candidate who receives a majority of the votes cast in November is elected.  The measure would apply to all state legislative races, statewide races such as Governor and Attorney General, and races for Congress and the U.S. Senate.

Competitive Elections Goal:  The Top Two Open Primary stated goal is to produce more competitive general elections—where most people vote.  Over ninety percent of legislative and congressional elections are deemed “non-competitive” under the current system.  This means that non-Republican voters living in “safe” Republican districts are permanently disenfranchised as are non-Democratic voters living in “safe” Democratic districts.  Top Two Open Primary would force candidates to face all voters, including independents, in both the primary and the general elections.  In most communities, this means that candidates and elected officials will have to answer to, and appeal to, a broader electorate rather than to the more narrow interests that can dominate low turnout primaries.  In a small number of very liberal or very conservative districts, Top Two could produce two candidates in the general election of the same party or even pit a Democrat against a Green party candidate or a Republican against a Libertarian, respectively.

Local Elections:  Top Two Open Primary would not change local election rules.  The Top Two Open Primary is very similar to California’s current nonpartisan system for local elections.  The most significant difference is that in most local elections, if a candidate receives a majority of votes in a primary (50% + 1) he or she wins the election outright.  Under the Top Two Open Primary, the two candidates with the highest and second highest vote totals move on to the general election regardless of what percentage of the vote they receive.  This ensures that elections are decided in the November general election when the highest numbers of people vote.

California’s History with Open Primary:  59.5% of Californians voted in favor of Proposition 198, an open primary initiative in 1996.  The measure passed in all 58 counties in California and was in place for the 1998 and 2000 primaries.  Proposition 198 was subsequently deemed unconstitutional by the U.S Supreme Court (California Democratic Party v. Jones).  The majority of the Court ruled that California’s election scheme violated political parties’ “private right of association”.
Two competing primary measures appeared on the November 2004 ballot.  Proposition 62 would have restored the open primary process with some modifications designed to address constitutionality.  A competing measure, Proposition 60 was placed on the ballot by the Legislature to protect the current partisan primary system and was backed by both major political parties.  Proposition 62 failed at the ballot box. Proposition 60 passed.  It is the system we have today.
Going further back, California allowed “cross filing” until the mid 1960’s.  Under this system, candidates could file to run in more than one party primary.

Other States:  The Top Two Open Primary initiative is modeled after Washington state’s primary system.  Washington’s system was ruled constitutional “on its face” by the U.S. Supreme Court in Washington State Grange v. Washington State Republican Party.  This decision leaves open the right to make what are called “as applied challenges”.  The major difference between the California proposal and Washington is that voters in Washington have never disclosed party affiliation or preference when registering to vote.  Louisiana recently changed from an often-criticized system in which candidates appeared on one ballot in the November general election and then faced a runoff in December when very few people voted.  California’s Top Two proposal is the opposite.  It places the runoff in the high turnout November general election where the most people vote.

Rights of Political Parties:  Political parties would continue to be able to endorse candidates and give financial and organizational support to the candidates of their choice.  This initiative does nothing to change the current partisan primary elections for President, or for party committee offices.  Parties may continue to close participation in these elections only to those voters who disclose their party preference or they may choose to allow independents to participate in Presidential primaries as currently allowed.  Generally, political party leaders and party activists have opposed open primaries.

Candidate Disclosure:  The Top Two Open Primary proposal requires that all candidates’ lifetime history of voter registration, including party affiliation of preference, be published on the Secretary of State’s official web site.  Candidates must declare their party preference at the time of filing for office.  A candidate’s party preference will appear next to their name on the primary and general election ballots. Candidates who do not declare a party preference when registering to vote shall have the designation of “No Party Preference” on the ballot.

Voter Registration: The Top Two Open Primary does not modify the voter registration process.  However, the measure does make a significant legal distinction by changing political party “affiliation” to political party “preference”.  At the time of registration, all voters choose whether or not to disclose their party preference.  Registered voters can vote for the candidate of their choice in either a primary or a general election or choose to be a candidate themselves.  Everyone, regardless of his or her disclosure or nondisclosure of party preference, is subject to the same rules, as a voter or as a candidate.

Third Party and Independent Candidates:  There are no independents or third party representatives in California’s legislative or congressional delegations; no third party or independent candidate has ever been elected to statewide office under the current system.  The highest number of votes received by a third party or independent candidate running for the state Assembly in 2008 was 399 votes, less than one percent of the total votes cast.

The Top Two Open Primary eliminates steep barriers that currently make it difficult for independents to qualify for the ballot.  While third party candidates can get on the ballot in the current system, it is virtually impossible for a third party candidate to get a head to head match up, even in districts where the voter makeup could make them competitive.

The Top Two Open Primary attempts to level the playing field for third party candidates and for independent candidates by making the rules identical for everyone.