A Blanket Too Short and Too Narrow: California's Nonpartisan Blanket Primary

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 or 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 A. 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 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. …