A blanket too short and too narrow: California's nonpartisan blanket primary.

• Author: Jackson, William B.

INTRODUCTION

California's ballot initiative process has produced its fair share of political controversy throughout the state's history. Initiatives such as Proposition 98 (banning affirmative action in the public sector), Proposition 187 (denying illegal immigrants access to public services), Proposition 19 (legalizing marijuana, although the initiative failed), and Proposition 8 (banning gay marriage) have led some commentators to wonder whether such a method of direct democracy gives too much power to the "superior force of an interested and overbearing majority." (1) The most recent initiative to generate controversy is Proposition 14, the Top Two Candidates Open Primary Act, a ballot proposition to amend the state constitution referred by the state legislature (2) through a senate bill--Senate Constitutional Amendment 4--on February 19, 2009, and passed by voters on June 8, 2010. The measure creates a nonpartisan blanket primary, or "top two primary," for all congressional and statewide elections except presidential primaries, state party committee offices, and nonpartisan offices. (3) A nonpartisan blanket primary merges all party primaries for a government office into a single open primary where all candidates from all parties are placed on a single ballot, and all voters, regardless of political affiliation, can vote for the candidate of their choice. (4) The top two candidates advance to the general election, and they could be from the same party. (5) The legislature further ensured that only two candidates advance by prohibiting write-ins, a common loophole to such a restriction, in the general election. (6)

This Note will first explain the history of the nonpartisan blanket primary in the United States and the U.S. Supreme Court's hand in its rise to popularity. The Court has paid close attention to the tensions between a state's right to control its own elections and a political party's First Amendment freedom of association, and blanket primaries bring these two to a head. I will next go over the circumstances in which Proposition 14 and its companion legislation, Senate Bill 6, were enacted and discuss their likely effects, partially in light of similar primary systems in Washington and Louisiana. Proponents of the legislation firmly believe it will bring partisan bickering and legislative deadlock to an end by electing more moderates to the legislature. Indeed, there may be a moderating effect when candidates from the same party advance to the general election. However, evidence suggests that the new system will create more problems than it will solve: it will not increase the overall amount of moderate political officeholders, it will increase costs, and it will significantly harm minor parties in the process.

LEGISLATIVE BACKGROUND: A CURSE AND A BLESSING FROM THE U.S. SUPREME COURT AND AN EFFORT TO END LEGISLATIVE GRIDLOCK IN THE FACE OF AN ECONOMIC EMERGENCY

1. The U.S. Supreme Court Prepares the Way for Nonpartisan Blanket Primaries

   Proposition 14 took effect in January 2011, but California will first apply the nonpartisan blanket primary to a statewide election in June 2012. (7) The only other states to use nonpartisan blanket primaries are Washington, beginning in 2004, (8) and Louisiana, which has been using the system since 1975. (9) Proposition 14 will transition California's electoral system from a closed primary, in which only registered members of the party holding the primary may vote, and the candidate with the most votes from each party primary advances to the general election. (10) But this was not the first time the state has implemented or attempted to implement an open primary system. Proposition 62, an earlier initiative that would have put in place a substantially similar system, was voted down in 2004. (11) In 1996, voters approved Proposition 198, which provided for a partisan blanket primary. This system also permits voters to pick among candidates unrestricted by, party membership, but the single top candidate from each party advances. (12) Thus, those registered voters not affiliated with a party may help determine that party's nominee. Such an election method was also used at the time by Washington and Alaska.

   Four years later, in California Democratic Party v. Jones, the Supreme Court invalidated Proposition 198 as unconstitutional. (13) The Court was primarily concerned with the issue mentioned above: the state was permitting voters outside a party's ranks to influence the determination of that party's representative. The Court held that the partisan blanket primary was unconstitutional because it substantially burdens political parties' First Amendment right of association, (14) it furthered legislative interests that were not sufficiently compelling, (15) and it was not narrowly tailored to advance those interests. (16) It found that a nonpartisan blanket primary would be better suited to protect those interests without substantially burdening political parties in the process because it had "all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party's nominee." (17) Washington's blanket primary fell soon after. (18)

   In 2008, the Court upheld the constitutionality of Washington's nonpartisan blanket primary in Washington State Grange v. Washington State Republican Party. (19) It determined that such primaries did not substantially burden political parties' First Amendment rights, citing the exception mentioned in Jones. (20) It remarked that ballots that included party preference (for example, "I prefer the Republican Party"), as opposed to party affiliation (for example, "Republican"), would prevent voter confusion that parties are endorsing candidates, thus avoiding a potential First Amendment associational problem. (21) Proposition 14 was a response to Washington State Grange and actually cites the decision in its text. (22) Particularly, the legislature adopted the Court's comment that party preference instead of affiliation be used for candidate ballot statements. (23)

2. Proposition 14 as a Solution to California's Debt Crisis? Enactment and Provisions of Proposition 14 and Its Companion Legislation, Senate Bill 6

   1. Enactment of Proposition 14: Abel Maldonado's high-stakes bargain

      In 2009, California was at the peak of a massive economic crisis, staring down a deficit of $42 billion. (24) Government employees were required to take two additional days off of work per month. The state's controller began printing IOUs instead of providing cash. in his State of the State address, Governor Arnold Schwarzenegger said California was in a "state of emergency" and that the deficit must be resolved before the legislature should deal with other policy issues. (25) The state legislature put together a budget to close the deficit, but members of the legislature disagreed on how to resolve the crisis: Republicans wanted to cut expenditures while Democrats sought to raise taxes. (26) The Democrat-controlled legislature eventually formulated a budget plan that would resolve a significant part of the deficit, but it included $14 billion in new taxes that made the deal hard to swallow for Republicans. Because state budget increases required a two-thirds supermajority approval vote at the time, (27) Democrats needed some Republicans to cross the aisle and join them.

      After four days of deadlock, during which legislators being locked in the capital for thirty hours straight, enough Republicans acquiesced so that only one additional vote was needed. (28) Moderate Republican Senator Abel Maldonado (29) was the final yes vote, but he conditioned his vote on legislative approval of Proposition 14. (30) Democrats, after initially refusing to comply for several days, acceded, and both the senate and the assembly approved the measure. Proposition 14 was placed on the ballot a year later and approved by California voters, 53.8 to 46.2 percent. (32)

      Maldonado authored Proposition 14 in an attempt to resolve the constant legislative gridlock occurring in the California legislature, particularly on economic issues such as the state budget, which the legislature "repeatedly fail[ed]" to pass on time. (33) He believed Proposition 14 would solve this problem by giving independent voters greater access to primary elections and producing more moderate and practical office-holders to reduce partisan and major-party influence. However, some have viewed his efforts as self-serving: he stood to personally benefit from the measure because, as a moderate Republican, he would increase his chances of winning future elections under the nonpartisan blanket primary. (34)

      When Proposition 14 was placed on the ballot, a heated debate ensued as to how it would affect California's electoral structure. (35) However, opponents decided not to spend too much energy to defeat the initiative because they risked a public backlash and determined any effort would do little good given the "anti-establishment political environment" in California and across the nation. (36) Instead, some voters and aspiring congressional candidates have brought suit in...