Vikram Amar & Whitney Clark

If California Voters Approve the Legislature's Proposed "Top Two Candidates Open Primary Act," Will It Survive a Likely Constitutional Challenge?

By VIKRAM DAVID AMAR & WHITNEY E. CLARK


Friday, Feb. 27, 2009

In this column, we will examine an important initiative proposal that emerged from the California Legislature last week and that, if approved by voters, would fundamentally change the way officials in the Golden State are elected. The proposed state constitutional amendment, which one key Republican state senator insisted upon as a condition for his approving a contentious budget package, would require the use of so-called "open primaries" in elections for state and federal officials (except the President and Vice President). (Some analysts argue over the meaning of the term "open primary" as compared to "blanket primary," "modified blanket primary," etc., but we use the term "open primary" here because that is the label used by the California legislature).

In particular, we will discuss how the proposed California open primary scheme would operate, and whether it might be struck down as violating the United States Constitution.

Background: California's Current System and How the Initiative Would Alter It

Under current California practice, each qualified political party nominates candidates for statewide California offices and federal House and Senate seats through a "closed primary" election – that is, a primary election in which only those voters who are registered members of that party can participate. The winners of these closed primaries appear on the general election ballot and compete against each other, any independent candidates (i.e., those unaffiliated with a qualified party) who have satisfied separate processes to have their names on the ballot, and any write-in candidates.

The proposed state constitutional initiative, entitled "the Top Two Candidates Open Primary Act" (the "Act"), would change all of this and instead mandate use of a single primary election in which all voters participate and in which voters may select any candidate, regardless of the voters' or the candidates' party identities (if any). Indeed, under the proposed approach, candidates may but need not identify themselves as preferring any particular political party ideology. For each office, the top two vote-getters in the primary -- and only these two -- advance to the general election ballot. This is so even if both top vote-getters identify themselves with the same party.

Supporters of this proposal argue that it will enhance voter choice (by allowing all voters to vote for any candidate in the primary), increase competition (by requiring primary candidates to compete against all other candidates, rather than just those identifying themselves as being of the same party), and elect more moderates (because extremists are likely to turn off voters located at the other end of the political spectrum, and thus less unlikely to finish in the top two). We will leave it to political scientists (who seem divided in their opinions) to debate whether these results would actually come about. Instead, we will focus here on the constitutional challenge that is likely to be brought against the Act if the voters pass it.

The Washington State Grange Case

The legal challenge against the Act will undoubtedly build on -- and test the meaning of -- a Supreme Court case, Washington State Grange v. Washington State Republican Party, decided a year ago, which involved Washington State's own election innovation, "I-872." Like California's Open Primary Act proposal, I-872 allows candidates for an office to register and note their party preferences. It also allows all state voters to participate in a single primary involving all candidates for a particular office. And like California's proposal, Washington's law permits only the top two primary vote-getters -- regardless of their party preferences -- to advance to the general election.

Shortly after I-872's passage, the Washington State Republican Party brought suit claiming that the law on its face violates the party's First Amendment associational liberties by "usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse." The Supreme Court ultimately rejected this challenge on the ground that the First Amendment injuries of which the Republican Party complained were not so inevitable as to justify invalidating the measure on its face before courts could see how it might operate in practice.

The Grange Court acknowledged that an earlier primary election experiment (coincidentally from California) had been struck down by the Justices in California Democratic Party v. Jones. In Jones, the Court concluded that California's so-called "blanket primary" – in which registered Democratic voters could vote in the Republican Party primary and vice-versa – "severely burdened the parties' freedom of association because it forced them to allow non-members to participate in selecting the parties' nominees." But the majority opinion in Grange quickly pointed out that I-872 differed from California's blanket primary at issue in Jones in that I-872 eliminated altogether the idea of party primaries in which each political party selected its own chosen nominee for the general election ballot; telling political parties they have to have to allow non-members into their own proceedings is different, the Court said, from deemphasizing those internal party proceedings themselves by removing each party's right to place its standard-bearer on the general election ballot.

Even after I-872's enactment, the Court observed, political parties are still free to "nominate" their preferred candidates outside of the state-run primary by whatever mechanisms they choose (and may exclude non-members from those mechanisms), but "the First Amendment does not give political parties a right to have their [chosen] nominees designated as such on the [general election] ballot."

The Grange Court viewed the hard question -- and "the heart" of the challengers' case -- as being whether "voters will be confused by candidates' party-preference designations." In other words, the strongest claim the Republican Party could make was that voters might think the Party approves of any candidate who indicates a Republican Party preference on the primary and general election ballots, even if the Party leaders and rank and file vehemently disagree with the political views of that candidate. And on this question, the Court characterized the Republican Party's fear of voter misunderstanding as "sheer speculation." In particular, the Court indicated that it could easily conceive of a ballot that Washington could structure in such a way as to eliminate the possibility of widespread voter confusion and thus any First Amendment violation. Invalidation of a law on its face, the Court reasoned, would be inappropriate under such circumstances.

Did California Learn the Lesson of Grange? How the Act Reflects the Decision

The drafters of California's Act (and the proposed implementing legislation that would follow necessarily from the state voters' approval of the Act) appear to have followed the roadmap the Grange Court charted, in order to avoid constitutional pitfalls. To reduce problematic voter confusion, the California Act's drafters take several steps. For instance, instead of merely allowing a candidate who desires to express a party preference to have, say, a "D" or an "R" placed next to her name, California's ballot would include a sentence accompanying each candidate's name saying: "My party preference is the __ party." This phrasing is designed to reinforce the notion that the party preference comes only from the candidate, and does not constitute an endorsement of the party.

California's proposal also explicitly adopts the Grange Court's suggestion that state election officials embark on a public education program regarding the new primary system.

In this regard, and perhaps quite importantly, the publicly-viewable materials surrounding California's proposal -- including the state constitutional amendment itself, the implementing statutes, and the required voter information pamphlets California's Secretary of State is directed to prepare -- all make clear that any candidate's expressed party preference is "shown for the information of the voters only. It does not constitute or imply an endorsement of the candidate by the party indicated, and no candidate [selected in the primary] shall be deemed to be the officially nominated candidate of any political party."

The Possible Limitations of Disclaimers Regarding Lack of Party Nomination

There is, of course, an important question of how much disclaimers like these can really cure voter confusion. Justice Scalia, dissenting in Grange, for example, believed that any statement of party preference by a candidate on a ballot would violate the political party's First Amendment freedom not to be associated with -- that is, to disassociate itself from -- the candidate.

On the other hand, the majority in Grange obviously disagreed with Justice Scalia here. And California's scheme seems to be serious about using strongly-worded disclaimers to protect political parties from misassociation. Indeed, the disclaimer required under California's Act is to be included not only in the voter pamphlet materials, but also on the primary election ballot itself.

Importantly, however, the statutes proposed to implement California's Act do not clearly require any such disclaimer to be placed on the general election ballot itself. And that might very well be the most important and influential moment at which voters need to be educated in order to avoid misunderstanding. Historically, most voters never see voter information pamphlets, and many voters do not participate in primary elections. As Justice Scalia observed, the general election "ballot is the only document voters are required to see, and the last thing they see before casting their vote." There is no opportunity for anyone else – including the political parties themselves – to reply to what voters see on the ballot.

This apparent omission of a requirement of a disclaimer on the general election ballot may be the Achilles heel of California's experiment. Of course, it is possible that state election officials may, if they have the authority, try to include general election ballot disclaimers even if the Act and its current implementing legislation fail to require them. But if and when an as-applied attack is brought, this issue might be one that challengers can exploit in seeking to avoid the same fate as the Grange plaintiffs.

Another Possible Line of Attack: Smaller Parties May Contend They Cannot Be Excluded If They Fail to Place in the Top Two

The smaller political parties, such as the Libertarian or Green parties, may join the two major political parties in challenging the constitutionality of California's proposed "open primary" voting system and add an argument of their own. Under California's current primary election system, these smaller political parties can, through specific procedures, work to place their chosen candidates' names on the general election ballot alongside the two major parties' nominees. These smaller parties may have a non-frivolous constitutional argument that California's proposed "top two" primary election system imposes overly-restrictive requirements for candidates who represent these smaller parties' political viewpoints; there is some Supreme Court prior ballot access jurisprudence that may suggest a state cannot require that a candidate enjoy more than a "modicum of support" from voters to in order to gain access to a partisan general election ballot.

The Grange court acknowledged in a footnote that a similar argument was raised by the Libertarian Party of Washington, but the Justices chose not to consider the issue because it was neither addressed by the lower court nor encompassed by the question on which the Court granted certiorari.

Yet the cases the Libertarians relied upon to mount their challenge were all decided in the context of primarily elections that effectively "nominated" political party candidates to participate in a general election, and California's "top-two" plan rejects the very notion that parties necessarily get to place their "chosen candidates" on the general election ballot. Under California's proposed primary system, all qualified candidates, regardless of party preference or affiliation, are free to compete for the votes necessary to secure one of the two spots on the general election ballot; the primary "does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election." In this regard, noted the Grange Court, "[b]allots serve primarily to elect candidates, not as forums for [Party] political expression."


Vikram David Amar, a FindLaw columnist, is an Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Whitney E. Clark is a third-year student at the University of California, Hastings College of the Law in San Francisco. This fall, he will join the San Francisco office of the Hanson Bridgett law firm.

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