By Associate Clinical Professor Jessica Levinson
This op-ed was originally published in the Los Angeles Daily Journal.
In June of 2010, voters passed Proposition 14, the open primary, top-two election law. Since that time a number of lawsuits have been filed seeking to overturn it. (Full disclosure, I have been consulted by at least one group opposing Proposition 14). Just a few weeks ago, yet another challenge was lodged against the new law.
Proposition 14 provides that any voter can vote for any candidate in the primary election and that only the top-two vote-getters, regardless of party affiliation proceed to the general election. In some districts this could mean that the general election will be a battle between two Republicans or two Democrats. Candidates will list their party preference, or lack of party preference, on the ballot.
Proposition 14 was put on the June 2010 ballot as part of a compromise to pass the 2010 state budget. Then-state Sen. Abel Maldanado (R) agreed to vote for the budget in exchange for placing his pet project, an open primary, top-two election law on the next ballot. The primary purpose of the law is to increase the number of moderate legislators. The idea is that the winner of an election under Proposition 14 will have had to appeal to a broad spectrum of the electorate.
The latest challenge alleges that the new law is impermissible because it limits minor party access to the general election ballot and makes it more difficult for minor parties to remain ballot qualified in California. Members of California's four minor parties - American Independent, Green, Libertarian, and Peace and Freedom - constitute 4.5 percent of registered voters.
I also believe that Proposition 14 faces serious constitutional questions for similar reasons. I recently published a law review article in the Loyola Law Review - "Is the Party Over? Examining the Constitutionality of Proposition 14 as it Relates to Ballot Access for Minor Parties" - in which I argue that that law unconstitutionally infringes on the ballot access rights of minor parties. Indeed, Proposition 14 could sound the death knell for some minor parties in California by making it more difficult for them to retain their ballot qualified status. Ballot qualified status is important because candidates can only list their party preference for such parties. Candidates wishing to identify with non-ballot qualified parties can instead indicate that they have no party preference, which is not accurate.
Political parties can retain ballot qualified status by: polling 2 percent of the vote for any statewide race in a nonpresidential (midterm) year on a general election ballot; obtaining registration numbers of 1 percent of the preceding gubernatorial vote; or garnering petition signatures from at least 10 percent of registered voters. The first route is by far the easiest for minor parties to travel. It is also the route that will be essentially shut off by Proposition 14 because minor party candidates are unlikely to appear on the general election ballot. Based on voting and registration numbers, it appears that the Peace and Freedom Party and the Libertarian Party could lose their ballot-qualified status, as they would fail to satisfy the one-percent-registration test.
As an aside, the American Independent party is likely not in danger of losing its qualified status because many confuse registering as a member of that minor party with registering as an Independent voter. In California, voters who wish to register as Independents instead register as "Decline to State" voters.
The U.S. Supreme Court has yet to confront the specific question raised by Proposition 14, which allows candidates to appear on the ballot, but not to list their party preference if that preference is for a non-ballot qualified party where the ability to remain ballot qualified has been significantly restricted. However, Supreme Court jurisprudence is not particularly encouraging for opponents of Proposition 14. As I previously wrote, Supreme Court case law related to ballot access for minor parties is "[m]ired in inconsistencies and ill-conceived notions." While the Court's jurisprudence is far from consistent, the Court has rather steadily underestimated the importance of minor parties in American democracy. Many of the Court's decisions in the ballot access arena seem to hinge on the belief, a belief which I believe is erroneous, that there is little expressive value in a citizen's ballot-box decision of whom to vote for or against.
In addition, the Court has regularly misread the importance of minor parties to an open and robust political debate. Additionally, it has repeatedly mistakenly deferred to claims by state legislatures (made up overwhelmingly of members of the two major parties) that minor parties threaten stable and orderly elections.
Ballot access is an area where the Court should be more, not less, suspicious of the reasons that state legislators proffer in favor of ballot access restrictions on minor parties. Ballot access laws can quite obviously affect sitting legislators' chances of re-election. Hence, this is an area of the law where heightened judicial review should be the norm.
It is far from clear that if a challenge to Proposition 14 does wind its way up to our nation's highest court, the Court will recognize the very real burdens that this open primary, top two election law places on expressive and associational rights of voters and candidates.
One straightforward solution to some of the constitutional problems raised by Proposition 14 would be to change the Elections Code such that instead of retaining ballot qualified status by polling 2 percent of the vote for any statewide race in a nonpresidential (midterm) year on a general election ballot, minor parties could retain that status by polling 2 percent of the vote on a primary election ballot. Proposition 14 allows all voters to vote for any candidate in the primary election, and therefore minor parties are highly likely to be able to retain their ballot qualified status if this change were made.