California legislature rewrittes election law, adopts two-round system

For days, California was on the brink of financial disaster. With the legislature unable to pass the budget because of requirements that the bill garner 2/3rd of the state Senate’s support, the state government had already started taking a series of catastrophic measures: hundreds of infrastructure projects were halted, and Governor Arnold Schwarzenegger ordered the layoff of 10,000 state workers.

In the early hours of this morning, the Golden State managed to avoid a meltdown: A deal was finally struck, a mix of tax hikes and program cuts that garnered enough Republican support for the state legislature to pass the budget. But the compromise contained a last-minute addition that, if implemented, would dramatically alter California’s election system, endanger dozens of safe incumbents, boost moderates and potentially open the door to third parties: a two-round election system.

Republican state Senator Abel Maldonado insisted that an “open primary” provision be included in the package. Desperate for his vote, Democrats gave in, agreed to attach to a budget bill a major electoral provision and organized a roll call on the issue at 5am. The Los Angeles Times describes Democratic lawmakers opposed to the reform nevertheless voting for it while “near tears.”

Open primaries can only be implemented through a constitutional amendment, so the budget deal’s adoption is not enough to change California’s election laws. The measure will be placed on the referendum ballot in June 2010; if approved, it would start being applied in 2012.

I would expect both parties’ establishment to rally against the amendment, and the referendum’s prospects are very uncertain: California voters rejected a similar initiative in 2004, but they did adopt it in 1996. The state Supreme Court struck the 1996 provision down as unconstitutional, and the 2004 version (and presumably the current version) have been modified to take that into account. Naturally, we won’t know whether the bill passes the constitutional muster until the Supreme Court takes it up again. In any case, open primaries would transform California politics to such an extent that it is important to start discussing the ramifications.

What would change?

Currently, California uses the most common electoral system: Both parties hold nominating contests (only voters who are registered with a party can vote in its primary), and the winners move on to the general election. The open primary system, which according to this bill would apply to local and federal races, would be very different: All candidates from all parties would compete on the same ballot, and the top two vote-getters would move on to a runoff.

In other words: Instead of having a one round primary followed by a one round general election, there would be two rounds in the general election. This system is used in many countries in the world (France, for instance), and a number of American states use it at the local level, but no state currently has such a procedure for federal elections. (Louisiana did, but it changed the system again last year.)

Needless to say, this would have a major impact on California politics. The state’s legislative districts have been gerrymandered in such a way as few very can conceivably host competitive general elections: they are generally heavily Democratic or heavily Republican. Thus, a blue district’s lawmakers are chosen exclusively by its Democratic voters and a red district’s lawmakers are chosen exclusively by its Republican voters.

An open primary would change that up:

1. The ultimate decision is differed from a closed primary to a runoff.

Let’s take a very liberal district, for instance, in which half-a-dozen Democrats are running. In the current system, the winner of the Democratic nominee would be certain to win the general election. In an open primary, that is not the case: the odds are high that the top two vote-getters will be Democrats.

The intra-Democratic contest would thus only be resolved in a runoff, and independents and Republicans would help choose which Democrat will be elected. This is an obvious boost to moderates of both parties, who will have a far easier time building majorities in the runoff than in their party’s closed primary.

2. It allows independents to vote in both rounds.

Currently, independents can only participate in the general election since California’s primaries are closed. With an open primary system, however, they would help choose which candidates advance to a runoff.

This could prove significant in heavily partisan seats. If two liberal and one conservative Democrat are running, for instance, independent voters could ensure that the latter makes it in the top two vote-getters and thus has a chance in the runoff (see #1). But it could prove even more important in seats that are more evenly divided and where the runoff is likely to be an opposition between a Democrat and a Republican. Here, independent voters will essentially be tasked with helping to choose a party’s runoff candidate - and this should once again prove a boost to moderates.

3. A door would open for third parties.

This is the one consequence that could have prove advantageous to progressives, at least to those who would like stronger third parties in the United States.

A major reason for America’s two-party system is the fact that there is only one round in the general election. Liberals who are attracted to a third party candidate but want to make sure Republicans lose have to cast their vote for the Democratic nominee, since they will have no future opportunity (a second round) to do so: If you care about Democrats winning, a vote for a minor candidate is a wasted vote.

That is no longer the case in a two-round system, in which third party candidates can no longer be attacked as spoilers. A liberal voter can cast a ballot for the Green Party in the first round since the need to defeat Republicans will have been deferred to the runoff. In other words, third party candidates should expect to receive significantly more votes - especially in heavily heavily liberal and heavily conservatives districts in which a significant share of voters are dissatisfied with the two major parties.

In France, for instance, the top two vote-getters rarely get more than 50% of the first round’s vote. More than half of voters usually opt for someone other than the candidate of the leading right-wing party (the UMP) or the leading left-wing party (the Socialist Party), and other parties regularly advance to the runoff. The most famous (and extreme) example occurred in 2002’s presidential election, when far-right leader Jean Marie Le Pen came in second and moved on to the runoff with only 17%.

Over the course of a few cycles, third parties could build enough support to qualify for public funding and access more ballots. Freed from the accusation of playing spoilers, they would also have an easier time winning elections. For instance, might Dean Barkley have gotten more than 16% in Minnesota’s Senate election had voters not been worried that Al Franken and Norm Coleman needed their votes?

14 Responses to “California legislature rewrittes election law, adopts two-round system”


  1. 1 passionatejus

    Sorry but open primaries actually hurt third parties when they are put into practice.

    We have open primaries here in Washington State and it is awful. The worst hit are the third party candidates and their supporters. In almost all of the legislative districts last year, the two top vote getters were a Democrat and a Republican. The exception was one or two districts in Seattle where the two top vote getters were two Democrats and one district in eastern Washington where the two top vote getters were two Republicans.

    This limited the choices of voters in the general election in those districts.

    It also completely shut out third party candidates. First, none of them made it to the second round. Second, because they knew they would not get to the general election, fewer third party candidates even bothered to run in the primary.

    Open primaries are disasters for democracy. I’m upset that California Democrats caved in for such a measure and I hope that the citizens vote down such a horrible idea.

    I for one also think that open primaries are unconstitutional and should be struck down by the courts. They LIMIT participation, not expand it as advertised.

  2. 2 Taniel

    Passionatejus,

    The point of the system is that the runoff can no longer be described as the “general election.” Instead, both rounds are “general elections” and third party candidates are in a position to attract more voters in the first round of an “open primary” system than they can currently attract in the only rond of the general election because of the spoiler fear.

    That does not mean that a third party candidate will suddenly move on to a runoff, but over the course of a few cycles a third party could grow enough to sometimes send candidates to a runoff - and that would put third parties far closer to winning seats than they are today.

  3. 3 passionatejus

    Unfortunately, that is not how it works in practice.

    Another unfortunate aspect is that fewer people vote in the first round, aka primary. That will lead to less participation amongst low information voters.

    The last round will always be considered the “general” election. It’s too bad that third parties will now be shut out of it. I think that limiting the options in the final round could be considered unconstitutional. I also hate open primaries; I think that members of one party should get to choose their candidates, not members of other parties or independents.

    Again, I’ve seen the top two open primary in practice. It is a so-called reform that does not do what it is advertised. I’d advise everyone in California to vote against it.

  4. 4 Tom

    passionatejus - I understand your comments but is turnout lower in the first round comapred to a “normal” primary? I would expect turnout to be the same or higher because primaries are usually low turnout affairs.

    You cannot just measure the effectiveness of open primaries by the absence or presence of a third party in the second round. Third parties in the US have typically got less than 5%, they would need a quantum leap in support to get to a second round (probably 30-40%).

  5. 5 Jaxx Raxor

    In terms of strengthening third party candidates, the Green party would probably benefit the most in Calfifornia if it passes by referendum because while it is true that most districts at both the state and federal level are gerrymandered to favor either the Democratic or Republican party, Democratic districts tend to be much more democratic leaning than the Republican districts. Obama did very well in Calfornia, winning some Republican districts and coming close in others, while he dominated the traditional Democratic gerrymanded districts. In addition conservative oriented parties seem to be fairly week in California (the Liebertarians and the Constituional Party come to mind) while the leftist Green party has some strengh in the liberal parts of California, especially in San Franciso, in which a Green candidate is regularly a major candidate in the Mayoral election. It’s possible that if the two round system passes, then in very liberal districts you could start seeing Greens replacing Democrats, althrough this will probably almost certainly be at the state level, because the Democrats are much more powerful at the federal level in these districts.

  6. 6 fritz

    Taniel: Thanks for the excellent overview of open primaries but I’m not sure it will lead to the rise of third parties in the US.
    The system as it stands today doesn’t elect any third party members to Congress but anything that helps put more moderates in Congress can’t be bad.It’s too bad the Senator didn’t hold out for ending gerrymandering and redistricting by an independent panel. Now that would be real electoral reform.

  7. 7 Tom

    I completely agree with Fritz - independant redistricting would be real reform. But I agree that anything that allows more moderates (especially GOP members in the State hous enad Senate!) is to be welcome. The GOP look very bad in this fight because they held California ransom.

  8. 8 passionatejus

    Well I must respectively disagree with you all. We already are a nation of moderation. I would hate for both parties to become even more moderate. I like my politics with a little bit of both wacky leftists and right wingers.

    I also don’t like most “reforms” — they typically only make things worse. Propositions and referendums for example (see: Tim Eyman, Bill Sizemore, Prop 187). I use to work for Governor Davis. In my opinion, Californians got what they deserved, in electing a sexual harasser with no previous governmental experience.

  9. 9 Taniel

    passionatejus,
    I agree with you that Congress is dominated by a centrist (bipartisan) caucus, and I am worried about the possibility that even liberal and conservative districts like California’s start sending moderates. But I also think that the path towards healthy democratic debates goes through election reform and building up third parties, something that the one-round election system makes structurally impossible since third parties will always be accused of playing spoiler.

  10. 10 mikeel

    California has the biggest legislative districts by a wide margin. We habe 40 Senate seats (average population just under 1 million) and 80 Assembly seats. You’d think the size of the State Senate disticts would guarantee more competitive elections, but only one race was competitive in 2008 (SD 19). In the Assembly, there are actually several competitive races as term limits create a lot of open seats every two years.

    I really don’t think the open primary will change much, except that the primary becomes a “beauty contest,” or really a large poll. There will be independent redidtricing, but I don’t think that’s going to change things a lot. The problem is that the California politics has become extremely polarized, and that will take a lot more than political reforms to change.

  11. 11 passionatejus

    Tom, I believe in last year’s top-two primary, turnout was lower than usual. Mostly due to the confusion of it being the first one of it’s kind. And because there was less drama. Everybody knew that in most districts that both the Democratic and the Republican candidate would win and then go on to the final round (aka general election).

    http://horsesass.org/?p=5888

    Third Parties themselves said that the top-two primary hurt them:

    http://seattletimes.nwsource.com/html/localnews/2008090015_thirdparty04m.html

    I cannot say it better than this:

    http://www.mydd.com/story/2009/2/19/172417/292

  12. 12 Taniel

    passionatejus,

    I agree that the system’s humongous flaw is that turnout in the first round is likely to be very low, and that is what differentiates the American “open primary” from the European style-”two round system” (in French elections, for instance, turnout doesn’t tend to be that different in the two rounds). And I more than acknowledge the system’s problems when implemented in the American context (boosting moderates even in districts that are very liberal or very conservative, low turnout).

    In other words, I am not praising the reform, but I do think that it could bring some improvements for third parties in the long-run by changing the political culture that dictates that a vote for a third party is a wasted vote; that will take more than a few years, but building third parties is obviously a long-term goal. As for the turnout issue, my hope would be that, as people get used to the system, they understand that the first round is as important as the runoff. For that to happen, there shouldn’t be a long period between the two rounds: that makes them seem far more linked than the primary and general election do in America.

  13. 13 Michael Northrop

    I’m surprised no one has mentioned Instant Runoff Voting. There is no need for a 2-round runoff when IRV (or ranked choice voting) guarantees a majority winner in one election and eliminates the wasted-vote/spoiler effect. No 3rd party would ever support or benefit from Open Primaries for the reasons that Passionatejus gave. IRV is already used successfully in San Francisco, Australia, Ireland, and adopted in Minneapolis, Oakland, Burlington, VT, among others. It also increases voter turnout since primary elections are notoriously ignored (except by the ideological extremes), as are runoff elections held after the general election.

    http://www.youtube.com/watch?v=Maefwl20Uh0

  14. 14 how to fish

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