Op-ed: California is Hurting Itself by Cutting Minor Party Activists out of Elections for Congress and State Office

In tandem with the California voter turnout forum being hosted by the Leadership California Institute today, Richard Winger, founder of Ballot Access News, has written an Op-Ed piece detailing the struggle that minority parties face on both the state and national stage.

According to the most recent California registration data, 5% of all registered voters are members of some political party other than the Democratic and Republican Parties.  These minor party members include some talented and civic-minded individuals.  Many of them have been elected to city or county office.  Registered members of the Green Party have been elected to city councils, or to the mayor's position, in these 26 California cities:  Aliso Viejo, Apple Valley, Arcata, Berkeley, Buellton, Davis, Fairfax, Fort Bragg, Marina, Menlo Park, Modesto, Moraga, Morro Bay, Nevada City, Oakdale, Ojai, Point Arena, Richmond, San Luis Obispo, Santa Cruz, Santa Monica, Sebastopol, Sonoma, Truckee, Willits, and Yucaipa.  Greens have won county supervisor seats in Mendocino and San Francisco Counties.

Libertarian Party members have been elected to city councils in these eleven cities:  Arcata, Bellflower, Clovis, Moreno Valley, Mountain View, Palm Desert, Ross, San Gabriel, Saratoga, Simi Valley, and Villa Park.  Libertarians have won county supervisor seats in Calaveras and Placer Counties, and a Libertarian was elected Mendocino County District Attorney.

Peace & Freedom members were elected to the Cotati City Council, and a member of the American Independent Party was elected to the El Dorado County Board of Supervisors.

Historically, minor party members have had a more difficult time winning partisan office in California.  The last time a minor party member was elected to the Legislature was in a special election in Alameda in 1999, when Green Party candidate Audie Bock won.  The last time a minor party won a U.S. House race in California was in 1936, when Franck Havenner won a seat in San Francisco.  The last time a minor party member won a statewide office was in 1914, when Progressive Party nominee Hiram Johnson won the gubernatorial race.

Nevertheless, even though minor parties seldom win for partisan office in California, when they run, they add ideas to the campaign.  For example, Ellen Brown, the Green Party candidate for Treasurer in 2014, is an expert on banking and had some persuasive ideas about the virtue of having a state bank.  Former Superior Court Judge Jim Gray, the Libertarian candidate for U.S. Senate in 2004, is an expert on drug policy and in his campaign, made compelling arguments for decriminalizing drugs

Unfortunately, California voters in June 2010 passed a constitutional amendment that eliminates the ability of minor party members to run for office in general elections for Congress and state office.  That measure, which was put on the ballot by a two-thirds vote of the legislature, provides that all candidates for Congress and statewide office run on the same primary ballot and all voters use that ballot.  Then, only the two candidates who place first or second can run in November.  Proposition 14, which was on the ballot as a measure to "increase participation in primaries" has not actually increased participation in California primaries.  It was implemented in 2012 and that year's primary had the second lowest turnout for a regularly-scheduled statewide primary in California history.  It got worse in 2014, when California had the worst primary turnout for a statewide primary in history.

In practice, this means that only the two candidates with the greatest name recognition and/or the most campaign funds can run in November.  There have been 119 elections for federal or state office in states with a top-two system (Louisiana, Washington, and California), in which a minor party member ran and there were at least two major party candidates also running.  In all 119 instances, the minor party member did not place first or second in the primary and therefore could not run or campaign in the general election.  The California top-two system even eliminates write-in space in November, putting an absolute barrier to minor party campaigns in the general election season, for races in which at least two major party members had filed.

Generally, throughout U.S. history, there have been two strong major parties, and voters have only paid attention to minor party candidates after the major parties have chosen their nominees.  The top-two system screens out minor party candidates before they get into the season in which voters are mostly likely to look at their ideas.

In November 2010, before California used the top-two system, there were six parties on the general election ballot, and the number of voters who voted for minor party candidates for statewide office ranged from 539,645 for Governor, to 1,116,826 for Insurance Commissioner.  But in November 2014, with the top-two system in place, no voter was permitted to vote for any minor party member.  Public reaction to a general election ballot that had only one Democrat and one Republican for each statewide race was negative.  California turnout declined more in November 2014, relative to November 2010, than in any other state.  California is the only state in which the turnout rate in November 2014 was less than seven-tenths the November 2010 turnout.  This data was compiled by Professor Michael McDonald, the nation's foremost expert on voter turnout.

California could reform its election system to restore voter choice in the general election, and still retain full freedom for voters to vote in any party primary they wish, if we adopted a true open primary.  Twenty states use open primaries.  In open primary states, there is no such thing as asking voters to choose a party on voter registration forms.  The form doesn't ask about party.  Then, on primary day, all voters are free to choose any party's primary ballot.  Or, California could return to the semi-closed primary that we used 2002-2010.  In our semi-closed primary, independent voters were given the opportunity to choose a Democratic primary ballot or a Republican primary ballot, in all congressional and state office primaries.  When they walked into the polling place on primary day, they were informed of their freedom to choose either major party's primary ballot.  Or, California could return to the blanket primary which we used in 1998 and 2000.  The blanket primary would be constitutional if parties were given the option to either use a blanket primary or to nominate by convention.  Recent court decisions from Utah, Montana, South Carolina, and Virginia, confirm this conclusion.

In November 2014, California voters were the only voters in the nation in which it was impossible for a voter to vote for someone who was not a Democrat or a Republican.  Such limited choice excludes candidates who might contribute to creative problem-solving ideas.  California will benefit if we restore full voter choice in the general election for Congress and state office.

Richard Winger was born in Antioch, California, in 1943, and graduated from U.C. Berkeley in political science.  In high school, he began collecting election returns, and in college he started collecting information about ballot access laws.  Winger’s research on the ballot access laws of all states, back to their beginnings in the late 1880's has made him an expert witness on election laws that affect minor parties and independent candidates in ten states. He started Ballot Access News in May 1985, a print monthly that has news about changes in election laws that affect political parties and candidates.  He currently serves on the editorial board of the Election Law Journal.