Top-Two Primaries Under the Microscope

Fourteen years ago, after the Supreme Court ruled unconstitutional the popular blanket primary system, Californians voted to replace the deeply unpopular closed primary that replaced it with a top-two system. Since then, Democratic Party insiders, Republican Party insiders, minor political parties, and many national reform and good government groups, have tried (and failed) to deep-six the system because the public overwhelmingly supports it (over 60% every year it’s polled).

Now, three minor political parties, who opposed the reform from the start and have unsuccessfully sued previously, are once again trying to overturn it. The Peace and Freedom Party, the Green Party, and the Libertarian Party have teamed up to file a complaint in the U.S. District Court for the Northern District of California. Their brief repeats the same argument that the courts have previously rejected—that the top-two system discriminates against parties and deprives voters of choice by not guaranteeing every party a place on the November ballot.

The plaintiffs argue that California’s top-two system is a violation of their First and Fourteenth Amendment rights, as well as “the rights of voters who wish to vote for and associate with minor political parties, their candidates and the issues for which they stand.” It’s a party-centric argument, adopted by some reformers, that the only legitimate expression of “voter choice” is a November election in which all candidates who wish to run appear on the ballot. The longer the menu, the more choices you get. Take something off the menu, you're denying choice.

So why do California voters find the top-two system so appealing if there are “only” two choices? In fact, the choices these plaintiffs are suing to offer voters already exist—in the primary. In that way, the primary is much more like a general election, and, like any general election, all voters get to participate. The general election, then, becomes a runoff of the top vote-getters. It could be any combination of candidates. What matters is that the people themselves—not the parties—get to make the choice of who they like best to compete head-to-head. That’s the appeal of the California system—it’s voter-centric.

Since the adoption of the top-two system, electoral competitiveness has gone way up in California. Uncontested elections have virtually disappeared. Five million independent voters have access to the ballot box. And, all voters have access to the only electoral system that pits the two most favored candidates against each other head-to-head and guarantees a majority winner.

Meanwhile, the plaintiffs collectively represent 2% of the CA electorate (less than half a million voters out of 24 million registered). Twenty years ago, long before the top-two system, they represented—you guessed it—2% of the electorate. As millions of voters have left the major parties in CA, and tens of millions nationwide, the number of independent voters has more than doubled, going from 14% of the electorate twenty years ago to almost a quarter of the CA electorate today. California voters are clearly not very interested in the “choice” these plaintiffs are offering.

The case is unlikely to be successful. There is no absolute right for any party or candidate to be on any ballot. The U.S. Supreme Court has limited its guidance to directing states to “provide a feasible opportunity for political organizations and their candidates to appear on the ballot.” The top-two system treats every party equally. Indeed, the parties in their brief acknowledge that, despite a very modest amount of public support, some third-party candidates have had success in CA under the top-two system. Not to mention that the Supreme Court has already ruled that the top-two primary is constitutional.

Perhaps the case will start some new conversations. How should the rights of third parties be balanced with the rights of voters—especially the explosion of independent voters? How do you articulate the value of a reform that has shown real merit but that is hard to capture in a state as large and as complicated as CA? Whose opinions on the value of a reform matter more—reformers or the public they profess to be serving?

If the case prompts thoughtful answers to any of these questions, these plaintiffs may still yet succeed in unwittingly advancing a very different goal—a more voter-centric reform movement.