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Opinion: Thirteen Reasons To Vote No on Prop 14/Top Two
Why Prop 14 would be bad for democracy and government in California

By Mike Feinstein

Proposition 14 is a political Trojan horse masquerading as electoral reform, that would reduce political voice and voter choice, while unfairly favoring incumbency and big money. At a time when California needs transformational change to address its multiple crises, Prop 14 would lurch the state backwards and institutionalize a deeply flawed election scheme in our constitution.

There should be no doubt that Prop 14 is a frontal attack on democracy. It is designed to stifle diversity and competition within the major parties, limit the choices of independent voters and drive minor parties off the ballot entirely.

1) Prop 14 is an Incumbent Protection Plan

Washington State had its first experience with a Top Two primary in 2008. Of the 139 incumbents who ran in either state legislative, state constitutional or congressional races, only one lost in the primary and 5% of 139 races featured candidates from same party. In the general election, fewer seats ultimately changed parties (seven) than in 2006 (13) when parties were allowed to conduct their own primaries.

Why are incumbents advantaged by Top Two primaries?

2) Early Decision-Making under Prop 14 Rewards Incumbents and the Wealthiest Candidates

By increasing the stakes of the June primary, Prop 14 would put more emphasis on early fundraising, increasing the corrupting influence of big money and making it harder for grassroots candidates and movements to survive, let alone compete. Candidates with large campaign chests (including those that can self-fund) would be even more able to ‘clear the field’ and squeeze out other candidates, because of the additional pressure not to ‘split the primary vote’ within their own party. This would occur during June elections that traditionally experience much lower voter turnout, and with voters who are much whiter, wealthier and olderon average than voters in November.

To the extent that incumbents don’t have to fear challenge in elections, Prop 14 would undermine one of the major tools of accountability between voters and representatives.

3) Eliminating party primaries under Prop 14 puts pressure on non-incumbents and/or non-frontrunners of the same party to drop out, lest they ‘split the vote’ of their party’s faithful, putting more power into the hands of party machines and insiders to de facto select general election candidates

In California’s current party primary system, spirited competition can occur among multiple candidates of the same party, without the concern that if too many strong candidates enter the race from the same party, it will split their party’s vote and endanger their candidates being on the general election ballot. But that’s exactly a problem that Prop 14 creates.

The pressure not to split the vote is one of the major negatives of Prop 14. The closet California has experienced to Prop 14 in this respect was the October 2003 Gubernatorial Recall - 132 candidates appeared on the same ballot, with no party primaries to select the nominee of each party. As a result, there was intense pressure on the ‘major’ candidates in each major party to drop out.

It began on the Republican side, with an agreement between former Los Angeles Mayor Richard Riordan and then actor Arnold Schwarzenegger that only one of the two would run. When Schwarzenegger declared his candidacy on August 6th, Riordan quickly dropped out. On August 23rd, 2002 GOP nominee Bill Simon announced that he too was dropping out, stating "There are too many Republicans in this race and the people of our state simply cannot risk a continuation of the Gray Davis legacy", lest they split their vote and hand the race to Democrat Cruz Bustamante. Next came Peter Ueberroth, former Major League commissioner and Los Angeles Olympic Committee President, who withdrew on September 9th. The Democrats were not immune to this pressure. On August 9th, former Lt. Governor John Garamendi withdrew, only two days after he declared, under heavy pressure not to split the Democratic vote, leaving only Bustamante in the field.

Rather than the ‘competitive environment' Prop 14 sponsors promise, experience in California and Washington shows just the opposite – fewer serious candidates chose to run and the choice of who will run is made more by party insiders than primary voters. This means political debate would be minimized, not increased by Prop 14.

Ironically one thing that made the Recall debates interesting was the presence of independent, alternative voices like Green Party candidate Peter Camejo and independent Ariana Huffington. Prop 14 would eliminate candidates like these from the general election debates.

4) Prop 14 would eliminate all ballot-qualified political parties’ right to be on the general election ballot

As recently as 2004, California voters approved Proposition 60 with 67.5%, which guaranteed that the highest primary vote getter from each of California’s ballot-qualified political parties would be on the general election ballot. Proposition 14 dishonestly hides that it would eliminate this right and take away the ability of a broad range of voters to vote for candidates in the general election that represent them.

After Washington State implemented the Top Two in 2008, no minor party or independent candidate for any statewide or for congressional race appeared on the general election ballot for the first time since Washington became a state in 1889.

5) Prop 14 would make it very difficult for minor parties to stay on the ballot in California

In California there are only two ways that parties stay on the ballot. One is to receive at least 2% of the general election vote every four years for one of the statewide constitutional offices like Governor or Secretary of State. But under Prop 14, minor parties won’t be on the general election ballot for statewide office, so they can’t retain party status that way. The other method is to have a certain threshold number of voter registrations. But if this were the only method today, both the Libertarians and the Peace and Freedom Party would already be off the ballot and the Green Party would be threatened with the same.

The Green Party has been on the ballot for 18 consecutive years, the Libertarians 30 and Peace and Freedom for 40 of the last 42. Had the Prop 14’s authors intended to honor California’s political diversity, they would’ve reduced the registration threshold so these kinds of parties could reasonably stay on the ballot. By leaving the threshold where it is and eliminating their ability to qualify on the general election ballot, Prop 14’s sponsors are going for the jugular to entirely eliminate minor parties in California.

6) Prop 14 forces California’s growing number of independent voters to vote for only Democrats and Republicans in the general election

Voter registration in the two major parties in California has been going down proportionally for many years, showing that voters want more, not fewer choices. Prop 14 is a disingenuous strategy to circumvent that trend by forcing all voters to vote for either Democrats or Republicans in the general election.

Prop 14’s advocates claim they are allowing California’s independent ‘decline-to-state’ voters more say in the primaries. But these voters already have the right to vote in the major party primaries today. So what would Prop 14 actually change? Independent voters – and all voters – would lose their right to vote for other candidates in November.

7) Prop 14 does not promote good government

Prop 14 advocates claim the Top Two will somehow magically lead to better government. But the Public Policy Institute of California studied previous implementations of similar systems and found little change in partisan discord. California had an experiment with the ‘cousin of Top Two’ when the blanket primary was in place in 1998 and 2000, before the U.S. Supreme Court threw it out for being unconstitutional. By November 2000, the full state legislature was elected via this method (the Assembly is elected every two years, the State Senate every four) and that 2000-2002 legislature was one of the most contentious in recent memory and took the state from a major budget surplus to major budget deficit in just two years, ultimately helping lead to the recall of Governor Gray Davis.

Louisiana is the only other state that has had a Top Two primary in place (since 1975) and is hardly a model of government for California to emulate.

8 & 9) Prop 14 eliminates general election independents and write-ins

Under Prop 14, all avenues to the November General Election ballot are shut down by mid-March. Currently if something significant happens in public policy during the course of the campaign that merits a new voice in the race, an independent candidate can qualify after the primary and appear on the November ballot. Prop 14 would eliminate this check-and-balance of democracy, along with the right of voters to cast a write-in vote in November if they don’t support any of the candidates on the ballot.

10) Prop 14 does not require candidates to disclose their registered political party affiliation

In yet another move away from accepted standards of democracy, Prop 14 would do away with basic transparency by not requiring a candidate to identify in which political party they are a member. Perhaps in a small New England town hall meeting in the 17th century where everyone knew each other, this would’ve been acceptable. But in today’s California with more than 36 million people, party identification is a helpful tool for voters to sort out their preferences. Prop 14 would take away this right from the voters. And, if under Prop 14 candidates chose to indicate anything at all, they would not appear on the ballot like today as ‘Joe Smith, Democrat’ or ‘Jane Doe, Republican.’ Rather it would be as ‘Joe Smith, my party preference is the Democratic Party’ – clumsy and potentially confusing language, that was placed in Prop 14 to try and avoid it being ruled unconstitutional.

11) Prop 14 is unconstitutional

Like the blanket primary that was ruled unconstitutional in California in June 2000, there is a good chance the Top Two will be thrown out by the courts -- wasting the time of the people of California yet again with a poorly conceived law.

While the Top Two was drafted to circumvent the concerns that invalidated the blanket primary, its authors were apparently unaware of a range of other ballot access laws, including what kind of restrictions can be placed on a party from reaching the general election ballot. As a result, there will be a full trial in US District Court in Washington State in October 2010 to rule on the constitutionality of Top Two. If successful, it would not only invalidate Washington State’s law, but likely Prop 14 as well, if it were to pass.

12) Bad process leads to bad policy

Devising electoral reform for a nation-state like California is best done transparently and thoughtfully, involving wide swaths of society. By contrast, Prop 14 was born outside of public view as part of a last minute, backroom deal to get the final vote in the legislature for the 2/3 needed to pass the 2009 state budget. Now its gone straight to the ballot for an up/down vote, with a ‘yes’ campaign mostly based upon superficial sound bites. Is that kind of political extortion how we want to reform our democracy?

There are many ways in which California could consider electoral reform. In 2010 there was an effort to qualify a Constitutional Convention initiative that could’ve placed a range of electoral reforms before the people in an open, inclusive manner. There is a good chance the movement will be back in 2012 more organized to qualify for the ballot.

13) Positive alternatives exist without the problems of Top Two

Imagine a system where voters can rank as many candidates as they want, not worry that voting for what they most believe in will lead to what they most oppose - and be assured that every election will lead to a majority winner. Such a system would put more power into the hands of the voter compared to the candidates and parties. Fortunately that system already exists – it’s called Ranked Choice Voting and is in place for non-partisan municipal office in San Francisco, Oakland and many other cities across the country.

Ranked Choice Voting can also be used in partisan races for state legislature or governor, in both party primaries and general elections. Since major party primaries in California are already open to decline-to-state voters, adding Ranked Choice Voting to that mix would render those primaries far more inclusive, competitive and democratic than they are today, promoting healthy competition and debate. In general elections, using Ranked Choice Voting would extend more choice to voters to indicate where they stand on the issues, eliminate ‘spoiler’ concerns, and give more incentive to candidates to be responsive to voters preferences, all without reducing voter choice as in Prop 14.

Finally, California could consider systems of proportional representation like in Europe and elsewhere around the world, where there are multi-seat districts and different parties win seats in proportion to the support they receive from voters. In that way, all parts of the political spectrum would have a place at the table, making government that much more truly “of the people.”

Mike Feinstein is a former Mayor and City Councilmember in Santa Monica.

For more information: see Stop Top Two and No on 14