Party Preference and Voter-Nominated Offices: the Incoherence of Partisan Designation in California's Top Two Primary System

Cross-posted from Poli-Tea:

Yesterday was the first special election for a US House seat under California's new "top two" primary system . . . For many supporters of alternatives to the Democratic-Republican two-party duopoly, the difference between a general election with two Democrats, or two Republicans, or one of each on the ballot, is likely negligible to non-existent.  Unsurprisingly, there are a number of lawsuits pending against the top two style primary.  Among them are one in Washington state challenging the constitutionality of the top two system as such, and at least two in California challenging a number of provisions specific to the legal scaffolding of the Golden State's newly-instituted system.  For an extensive discussion of the suits, see this presentation by Richard Winger and Gautam Dutta filmed at the general assembly of the Green party of California earlier this month.

Dutta is the attorney representing the plaintiffs in one of the lawsuits against California's system.  One of the plaintiffs in that suit, Michael Chamness, was a candidate in the special primary election for the 36th Congressional District in California.  Though a member of the newly-formed Coffee Party, Chamness was forced to state on the ballot that he has "no party preference" because the Coffee Party is not one of the six parties officially recognized by the state (i.e. Democrat, Republican, American Independent, Green, Peace and Freedom, and Libertarian).  Chamness's suit thus claims that the implementing law for the top two primary forces him to lie to voters.  Under California's old system, he would at least have been allowed to identify himself as "independent." 

Under the implementing law for California's top two system – namely, Senate Bill 6, passed as part of a late night budget deal in February 2009 – the partisan labeling system thus privileges the category of party and then narrows the definition of party to include only a small number of such groups, with a high bar to maintain inclusion in the set of permitted partisan designations.  Even despite the claims in Chamness's suit, this might appear reasonable enough to some observers.  But there remains an underlying contradiction between these rules and the overall logic of the primary system itself.

The law implementing California's Proposition 14 replaced the old party-nominated/partisan system of offices with what is termed a "voter-nominated" system of offices.  See this release from the Secretary of State contrasting the two systems.  Under the old system, the winner of a particular party's primary election became that party's official nominee.  This is not the case under top two.  The candidates on yesterday's ballot in CA-36, for instance, do not technically represent their parties.  Party designations reflect only the individual affiliation of the given candidate, not an official endorsement from the party.  Nor does their election in a primary mean that they become the "official" candidate of their chosen party.  It is for this reason that you can end up with a choice between two candidates from the same party on the general election ballot.  See this release from the Secretary of State on voter-nominated offices.  

As candidates under California's top two primary system are no longer running for a partisan office, but rather a voter-nominated office, the partisan labeling scheme limiting the party designations that a given candidate may choose from to describe him- or herself on the ballot must be considered an anachronism of the old system and should be abolished.  The new system has changed the very nature of the office, but this change is not coherently reflected in the partisan labeling system utilized on the ballot.

Read the whole thing.