Its Good Government: How & why California's elections code should be amended to compensate for the negative affects of Proposition 14 on the state's smaller, ballot-qualified parties – negative affects voters were never asked if they wanted

By Michael Feinstein,
Spokesperson, Green Party of California

Executive Summary: Proposition 14, passed by the voters in the June 2010 primary, has had profoundly negative effects upon California’s smaller, long-standing ballot-qualified parties: 

Together with its implementing statutes, Proposition 14 makes it virtually impossible for candidates from these parties to be on any general election ballot, especially the statewide, as well as making it extremely difficult to be on any primary election ballot. As a result, Proposition 14 greatly limits these parties ability to be visible and communicate their message, and makes it harder for them to raise funds and retain/increase their membership. 
More profoundly, Proposition 14 directly threatens these parties' ability to remain ballot-qualified, by de facto taking away one of the two ways a party can remain ballot-qualified – the general election vote test - despite there being no indication this was part of the voters' intent in narrowly approving Proposition 14.
As a result, the Green Party, Libertarian Party and Peace and Freedom Party have agreed upon two reforms of the election code to compensate for this, in a way they believe will preserve their long-standing status as ballot-qualified parties, without making it more likely that additional other parties will also qualify for the ballot: 
- Lowering the voter registration threshold in § 5100(b) from retaining statewide registration equaling at least 1% of the total votes cast at the preceding gubernatorial election, to 0.5%; and
- Amending the general election vote test in § 5100 to include receiving at least 1/3 of 1% in the previous presidential election
This memo will explain the context for these proposed changes, the reasons to make them and responses to concerns about them.

Background: Proposition 14's Effect on Ballot Qualification Retention 

According to the California Elections Code § 5100, once a party has qualified for the ballot in California, it can remain qualified by:

- Having one of its statewide candidates (running for Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, Attorney General, Insurance Commissioner, or United States Senator) receive at least 2% of the entire vote of the state for that office at the preceding gubernatorial election (Elections Code § 5100(a); or

- Retaining statewide registration equaling at least 1% of the total votes cast at the preceding gubernatorial election (Elections Code § 5100(b).

The option under § 5100(a) to remain qualified by receiving 2% in a statewide general election has been effectively taken away by Proposition 14, because under the Top Two system, the state's smaller parties will never be on the statewide general election ballot in the first place. 

That leaves only the voter registration threshold as an existing way for the smaller parties to remain on the ballot.

Recommendation: Change the Election Code to Compensate for the Negative Effects of Proposition 14

To compensate for the negative effects of Proposition 14, the Green Party, Libertarian Party and Peace & Freedom Party have collectively agreed to support the following changes to the Elections Code:

- Lowering the voter registration threshold in § 5100(a) from retaining statewide registration equaling at least 1% of the total votes cast at the preceding gubernatorial election, to 0.5%; and

- Amending the general election vote test in § 5100 to include receiving at least 1/3 of 1% in the previous presidential election.

There are several reasons to make these changes.

(1) When Proposition 14 effectively took away the 2% general election vote test option in § 5100(a) from the smaller parties, it did so even though § 5100(a) was the primary way these parties historically stayed on the ballot.

For example, since qualifying for the ballot (in 1980 and 1992 respectively), the Libertarian Party and the Green Party have received at least 2% for at least one statewide constitutional office every four years. Since qualifying in 1968, the Peace and Freedom Party has done the same with just one exception.  

By contrast, these same parties have not been able to consistently remain above the 1% voter registration threshold in § 5100(b).

It is unfair to make these smaller parties singularly reliant only upon a registration threshold that they have historically had more difficulty in reaching, when the voters have consistently supported these parties otherwise to stay on the ballot with at least 2% of the vote in statewide elections.

This 2% is especially impressive, in that it has occurred despite the disincentive to vote for candidates from smaller parties arising from the U.S. single-seat, winner-take-all plurality electoral system, and despite there being between four and eight parties on the ballot to share/split the vote at any one time since 1968.

(2) There is no evidence that making it harder for smaller parties to stay on the ballot was part of the voters’ intent in narrowly approving Proposition 14. For example, there was no mention of these negative effects on smaller parties in the Attorney General's Ballot Statement and Summary, and this issue was ignored by the major media, while opinion pieces about it were declined by most of the state's major daily papers. Futhermore the financial backers of Proposition 14 spents millions to promote their arguments in favor, but also mentioned nothing of these effects.

In addition, Proposition 14 did not qualify for the ballot via an initiative drive showing evidence of support from the signatures of hundreds of thousands of Californians. Rather it was the state legislature that chose to place Proposition 14 on the ballot in the middle of the night, without any public hearings, where  the smaller parties would have raised these issues had they been given the opportunity.

In fact these issues were already acknowleged by the sponsors of Proposition 62, a 2004 Top Two ballot measure that included a change in § 5100(a) from 1% to 1/3 of 1%, in order to account for this predictable negative effect the Top Two would have on smaller parties.

(3) Changing the 1% to 0.5% in § 5100(b) would ensure that the Green Party, Libertarian Party and Peace & Freedom Party would remain on the ballot after the 2014 election based upon their current registration totals. Changing § 5100 to include receiving at least 1/3 of 1% in a general election for president would do the same, based upon their most recent presidential general election totals.

At the same time, these changes would not add any other parties to the ballot for the present, nor make it any more likely that more parties would qualify for the ballot via the registration method in the future (more about that in ‘Responding to critiques’ below).

(4) The 1% registration threshold should be lowered to compensate for Proposition 14, because in eliminating party primaries, the Top Two system decreases the value to voters of registering in any political party, large or small, and that clearly negatively affects the smaller parties.

(5) The 1% registration threshold should be lowered to compensate for Proposition 14, because the Top Two system increases the difficultly for the smaller parties of attracting voter interest, and therefore makes it even harder than before for them to retain and increase registrations/party membership.

(6) The specific registration threshold of 0.5% is a reasonable compromise by the smaller parties, from the 1/3 of 1% that was contained in the 2004 Top Two ballot measure Proposition 62.

Response to critiques

The primary critique of changing from 1% to 0.5% in § 5100(b) has been that it would make it more likely that more new parties would qualify under the Top Two with 0.5% in § 5100(b), then 1% in § 5100(b) under the prior system. There are multiple reasons why this would not be so.

(7) California is not a ‘two-party-only’ state. If it were, there would be a lot of room on the political spectrum for multiple new parties. However California currently has six long-term ballot-qualified parties across the political spectrum. In addition to the Democrats and Republicans, there are two additional center-left parties (Greens, Peace and Freedom) and two additional center-right parties (Libertarian, American Independent). This means there is very limited ideological motivation for a new party.

(8) It is highly unlikely that any new ballot-qualified party can expect to have its candidates appear on any general election ballot (other than president, which is not affected by Proposition 14). To substantiate this, in the three states in which Top Two elections have ever been held (CA, LA, WA), no smaller party has ever had a candidate on any general election ballot, when at least two major party candidates also ran in the primary.

Therefore there is very little incentive to attempt to qualify as a new party, because a new party won’t have its candidates on the general election ballot anyway.  People are not going to go through the effort to register tens of thousands of people in a new party just so the state can conducts its county central committee elections every four years.

(9) It is true that Proposition 14 does not apply to presidential elections, meaning more than two candidates and parties can still appear on the general election presidential ballot. If some individual or group wants to qualify a new party for the California ballot in order to have this presidential general election ballot line, it will most likely do what Americans Elect did in 2012, which was to qualify via petitioning route. Petitioning for signatures is overwhelmingly easier and less expensive than trying to get tens of thousands of people to change their voter registration/party affiliation, especially in a state where there are already six existing, long-standing parties to register in across the political spectrum. 

Response to alternatives

It has been suggested by some Top Two sponsors that instead of amending the voter registration test in § 5100(b), that the general election vote test in § 5100(a) be changed to a primary election vote test. Such a move should be rejected at every turn.

(10) First, there is no empirical data on how the state’s smaller parties will perform in the statewide primaries under this new system. Therefore these parties do not want to agree to a primary election vote test in advance of 2014 based upon speculation, and then not reach that number and be off the ballot as a result of an uninformed guess.  Any percentage the parties would agree before the 2014 elections would have to be so low as to immunize them against risk - and the legislature would not likely support any number that low.  So for now, any primary election vote test is a non-starter.

(11) There are also fundamental differences between a Top Two primary and a general election under the old system, that make a Top-Two primary vote test a poor and inappropriate measure of public support for these parties.

First, primary elections tend to have a substantially lower turnout than general elections - and under the state’s first experiment with the Top Two, turnout was at all-time low record levels. In addition, primary voters in California tend to be are whiter, wealthier and more conservative than in the general election. Together this means that the demographics of a primary election vote test may squeeze out parties that have otherwise historically found meaningful representation in a general election, when more voters are participating.
Second, under this new law, all primary candidates are on a single ballot, splitting the collective primary vote; whereas under the old system, many of these same candidates would have been eliminated in the primary and some votes cast for them would have gone to the smaller party candidates in the general election, thus making it more difficult under the Top Two to get the votes required.
Third, under the Top Two, the vastly increased number of signatures in lieu of filing fees has made it extremely difficult for smaller party candidates to even be on the primary ballot in the first place.  In 2012, the first year under the Top Two, there were the fewest number of smaller party candidates on the primary election ballot since 1966, when only the Democrats and Republicans were on the ballot. 
With the extremely high number of signatures in lieu to be on the statewide ballot (a seven fold increase from 150 to 10,000) there is little incentive for a candidate to go to all that work (or pay the expensive filing fee), only to be on the ballot for less than three months and then be eliminated after the primary. That means its both harder to qualify for the ballot for candidates from smaller parties, and harder for smaller parties to attract strong candidates who could gain a lot of votes, who are willing to run under these negative circumstances. 
Therefore it is simply unreasonable to place the test of a party’s support in an election in which they may not be able to participate at all, or if they do, only in a weakened state.
The only way it could even be rationally argued for a primary election vote test, is if the signatures in lieu requirement were to be radically lowered, and the legislature is not likely going to do that.  

Fourth, another reason to reject a primary election vote test is that under the Top Two system, there is a greater disincentive to vote for smaller party candidates owing to 'spoiler' and 'lesser-of-evil' considerations, than even existed under the previous system in general elections. 
Before in the old system, in a general election there was only one seat – the winning seat – that this logic applied to, and in many elections the ultimate winner was so likely that this logic didn’t apply. But now under the Top Two, the 'spoiler' and 'lesser-of-evil' dynamic applies to two seats, not one; and even if the ultimate winner in November may be obvious, there is the still the incentive to try and use one’s vote to get a counter perspective into the general election.  Therefore under the perverse incentives of the Top Two, a vote may ask “why ever vote for a smaller party candidate in the primary, even if that candidates best reflects my views, instead of someone who might have a chance at finishing in the top two?”
Therefore, to try and gauge support for a party, when the very nature of the voting system is a primary disincentive to express that support is simply not reasonable.
Fifth, some argue that because Proposition 14 de facto eliminated the general election vote test under § 5100(a), the only nexus for change is ‘moving’ the vote test from the general election to the primary election, and that therefore there is also no reason to change the registration test.  
Not only is a Top Two primary election vote test not analogous in any meaningful way, to what was the general election vote test in the prior system. But it’s also not reasonable to treat § 5100(a) and § 5100(b) as if they are unrelated parts of the Election Code, when in reality they collectively define in § 5100, the menu of opportunities a party has to remain ballot qualified. Proposition 14 has de facto greatly weakened that menu, without asking the voters if that was their intent. To rectify this weakening, there is actually less of a nexus to introduce a new, untested and unrepresentative primary election vote test, than to simply modify the existing and long-standing voter registration test, which can be easily fine-tuned on the basis of long-term empirical data.
Sixth the Green, Libertarian and Peace and Freedom Parties believe the Top Two primary approach is fundamentally flawed and will continue to seek its repeal, either through the courts or the ballot box. The parties do not want to lend more credence to the Top Two approach by assigning additional importance to the primary election over the general election, a move the parties feel turns democracy on its head. 

(12) The Green, Libertarian and Peace and Freedom Parties parties feel a great sense of urgency because the cumulative affects of Proposition 14 threaten their survival, possibly as early as January 2015. How?

With an increase in 2014 voter turnout (owing to population increases), the number of registrations required under § 5100(b) would probably go up from the current 103,000 to somewhere around 115,000, maybe even to 120,000. This would almost certainly knock the Peace and Freedom Party off the ballot, it would be higher than either of the current totals of the Green (112,000) and the Libertarian (109,000) parties, and all three parties will be subject to a post-2014 cleaning of the registration roles that could easily drive their numbers down. 
Even if the number stays at 103,000, without the general election vote test, the Peace and Freedom Party will likely disappear from the ballot after 2014 and all three parties have a strong concern that over time, it will be increasingly difficult to retain or increase party registration because of not being on the General Election ballot at all, combined with having historically fewer candidates on the primary ballot because of the drastically increased difficulty of qualifying for the primary ballot under Proposition 14.
(13) Amending the Elections Code in 2013 makes more sense than waiting until the 2014 or 2015 legislative cycle and then changing the Elections Code after the primary (or general) election and picking winners and losers at that point - especially when voters won't know how much their primary votes may or may not have mattered in retaining certain parties on the ballot, in case the primary election vote test is ever enacted. By contrast, making these other changes now will buy time for the state to conduct its first Top Two statewide gubernatorial primary, and empirical results can be gathered and analyzed and perhaps future changes be based upon it.

(14) Making these changes now will also buy everyone time and keep these historically-qualified parties on the ballot while the legal challenges against the Top Two play out. 

It appears that if Rubin, et. al. vs. Bowen goes to trial, it would start sometime in 2014 and there is no telling how many years that will take. Second, the Ninth Circuit’s recent ruling on Chamness vs. Bowen has made it clear how a successful legal challenge can be mounted against SB6 (one of the implementing statute of Proposition 14.)  But there is also no certainty on how long that will take to be heard and decided.

Given that there is no indication that it was part of the voters’ intent to remove the smaller parties from the California ballot in narrowly approving Proposition 14, there is no reason to place their parties ballot status in jeopardy while the legal status of the Top Two is still under litigation. At the same time, it does make sense to rectify the weakened § 5100 now, since the damage to the smaller parties has already been done, and the negative effects of the Top Two upon them already seen in its first year.


(15) California voters have consistently supported ongoing ballot qualification status for the Green, Libertarian and the Peace and Freedom Parties through the general election vote test. Proposition 14 effectively eliminated that option and cast these parties’ ballot status in a precarious position, even though there is no indication that was part of voters’ intent in narrowly approving Proposition 14.

Proposition 14 also appeared on the ballot via actions of the legislature without any public hearings, and not via the initiative/signature-gathering route demonstrating any widespread public support.

Therefore, it is the legislature’s responsibility to restore these parties’ ability to remain on the ballot.

Changing the voter registration test in § 5100(b) from 1% to 0.5% would allow the Green, Libertarian and Peace and Freedom Parties to remain on the ballot, but would not increase the likelihood that any new parties would also qualify for the ballot.  Amending the general election test in § 5100 to add 1/3 of 1% in a presidential election would do the same.

Making these changes is something that can be done now with predictable results, in that it would sustain these parties’ presence on the ballot. It would also do so without making it more likely that other new parties would also gain ballot status.

Making these changes now can also provide needed pause to see if either (a) the legal challenges to the Top Two succeed, or (b) how the smaller parties will perform under the Top Two, after which any other appropriate changes to the Elections Code could be make.

By contrast, not approving any changes to the Elections Code would disenfranchise California voters who have historically expressed enough support for these parties (through the general election vote test) to ongoingly ensure their place on the ballot; and it would needlessly shrink the spectrum of the state’s overall political debate.