Nonpartisan blanket primary

A nonpartisan blanket primary is a primary election in which all candidates for the same elected office, regardless of respective political party, run against each other at once, instead of being segregated by political party. It is also known as a jungle primary,^[1][2] qualifying primary, top-two primary or Louisiana primary.

Under this system, the candidates receiving the most and second-most votes become the contestants in the general election—as in a runoff election, in a two-round system. (In some cases, this second round of voting is only necessary if no candidate receives an overall majority on the initial ballot.) However, there is no separate party nomination process for candidates before the first round, and political parties are not allowed to whittle-down the field using their own internal processes (e.g., party primaries or conventions). Therefore, it is entirely possible that two candidates of the same political party could advance to the general/run-off.

Candidate party preference and ballot disclaimer

Because voters can vote in the first round for a candidate from any political party, the nonpartisan blanket primary has been compared to the original blanket primary which was used in Washington for nearly 65 years^[3] and briefly in California. The blanket primary was ruled unconstitutional in 2000 by the US Supreme Court in California Democratic Party v. Jones because it required political parties to associate with candidates they did not endorse. The nonpartisan blanket primary disregards party preference in determining the two candidates to advance to the general election, and for that reason has been ruled facially constitutional by the Supreme Court in the 2008 decision Washington State Grange v. Washington State Republican Party.^[4]

Chief Justice Roberts concurred in the 2008 decision, "If the ballot is designed in such a manner that no reasonable voter would believe that the candidates listed there are nominees or members of, or otherwise associated with, the parties the candidates claimed to “prefer,” the I–872 primary system would likely pass constitutional muster." Each candidate for partisan office can state a political party that he or she prefers. Ballots also must feature a disclaimer to voters that candidate's preference does not imply that the candidate is nominated or endorsed by the party or that the party approves of or associates with that candidate.

Subsequent as applied challenges were struck down by lower courts, and on October 1, 2012, the US Supreme Court refused to hear appeals from Washington Libertarian Party and Washington State Democratic Party. The Washington State Republican Party had earlier dropped out of the appeal process.

Louisiana open primary

In Louisiana there is a second round (runoff) between the top two candidates if no candidate wins a simple majority (more than half of the votes) in the first round of balloting. This happens more often with open seats, as incumbents more easily win majorities. The runoff constitutes the general election under Louisiana law even if the general election had two candidates of the same party, a phenomenon which frequently occurs. The only labels originally permitted under the Louisiana law were Democrat, Republican, and No Party; however, as of 2008 the labels of any "registered political party" may be used.^[5] The primary has been used in statewide elections since 1975. The system was designed by then-Governor Edwin Edwards after he had to run in two grueling rounds of the Democratic Primary in 1971 before facing a general election against a well-funded and well-rested Republican, Dave Treen (who himself was elected governor under the new system in 1979).

Federal elections

The nonpartisan blanket primary was never used for presidential primaries in Louisiana because national party rules forbid it. It has been used for congressional elections from 1978 to the present, with a brief interruption in 2008 and 2010.

Starting in 1978, U.S. House and Senate elections were switched to the nonpartisan blanket primary format. Yet this system was held to be in violation of federal law when used for congressional elections in 1997 by the U.S. Supreme Court in Foster v. Love. After the decision, Louisiana moved the congressional primary date to November and the run-off to December in order to keep the nonpartisan blanket format. However, any congressional race involving a general election (runoff) meant the winning candidate lost seniority to those members elected in November on the national election day, leaving Louisiana's freshmen saddled with inferior office space.

In May 2005, Louisiana passed a law moving the primary back to October, with provisions intended to follow federal law. In June 2006 Louisiana Governor Kathleen Blanco signed Senate Bill No. 18 (later Act No. 560) into law, which took effect in 2008 and returned Congressional races to the closed primary system. However, in 2010 the legislature voted to revert federal elections back to the nonpartisan blanket primary system with the passage of House Bill 292, which was signed into law by Governor Bobby Jindal on June 25, 2010.^[6]

Since Louisiana's primary is virtually identical to the Washington state primary system which has been upheld by the Supreme Court in 2008 in Washington State Grange v. Washington State Republican Party, it thus remains constitutional.^[4]

Washington open primary

Washington, along with California and Alaska, had a blanket primary system that allowed every voter to choose a candidate of any party for each position. This kind of system was ruled unconstitutional in California Democratic Party v. Jones in 2000 because it forced political parties to endorse candidates against their will.^[4]

The Washington State Legislature passed a new primary system in 2004, which would have created a nonpartisan blanket or "Top Two" primary system, with an Open primary as a backup, giving the Governor the option to choose. Although Secretary of State Sam Reed advocated the Top Two, on April 1, 2004 the Governor used the line-item veto to activate the Open primary instead. In response, Washington's Initiative 872 was filed on January 8, 2004 by Terry Hunt from the Washington Grange, which proposed to create a nonpartisan blanket primary in that state. The measure passed with 59.8% of the vote (1,632,225 yes votes and 1,095,190 no votes) in 2004.^[7]

On March 18, 2008, the United States Supreme Court ruled in Washington State Grange v. Washington State Republican Party that Washington's Initiative 872 was constitutionally permissible, because unlike the earlier blanket primary, it officially disregards party affiliation while allowing candidates to state their party preference. However, the court wanted to wait for more evidence before addressing the chief items in the complaint and remanded the decision to the lower courts.^[4] Starting in the 2008 election, Washington State implemented the Top two primary, which applies to federal, state and local elections, but not to presidential elections.^[8]

There is no voter party registration in Washington. Candidates are not restricted to stating a preference to an established major or minor party. The candidate, on the ballot, has up to 16 characters to describe the party that he or she prefers.^[9] Some candidates state a preference for an established major party, such as the Democratic Party or the Republican Party, while others use the ballot to send a message, such as Prefers No New Taxes Party or Prefers Salmon Yoga^[10] Party. Since this is a "preference" and not a declaration of party membership, candidates can assert party affiliation without approval of the party itself, and even use alternate terms for a given party, such as gubernatorial candidate Dino Rossi's 2008 stated preference for the "GOP Party",^[11] despite being a prominent Republican.^[12]

California open primary

California's blanket primary system was ruled unconstitutional in California Democratic Party v. Jones in 2000 because it forced political parties to associate with candidates they did not endorse. Then in 2004, Proposition 62, an initiative to bring the nonpartisan blanket primary to California, failed with only 46% of the vote. However, Proposition 14, a nearly identical piece of legislation, passed on the June 2010 ballot with 53.7% of the vote.^[13]

Under Proposition 14, statewide and congressional candidates in California, regardless of party preference, participate in the nonpartisan blanket primary. However, a candidate must prefer the major party on the ballot that they are registered in. After the June primary election, the top two candidates advance to the November general election.

This does not affect the presidential primary, local offices, or non-partisan offices such as judges and the Superintendent of Public Instruction.^[14]

In federal elections

The 2012 general election was the first non-special election in California to use the nonpartisan blanket primary system established by Proposition 14. As a result, eight congressional districts featured general elections with two candidates of the same party: the 15th, 30th, 35th, 40th, 43rd, and 44th with two Democrats, and the 8th and 31st with two Republicans.

Use elsewhere in the United States

The plan is also used in Texas and some other states in special elections, but not primaries. A notable example involved former United States Senator Phil Gramm, who in 1983 (while a member of the House of Representatives), after switching from the Democratic to the Republican Party, resigned his seat as a Democrat on January 5, then ran as a Republican for his own vacancy in a special election held on February 12, and won rather handily.

There have also been efforts in Oregon to pass a similar law, but the Oregon Senate rejected it in May 2007 and it failed in a November 2008 referendum as Measure 65. Oregon voters defeated it again in November 2014 as Measure 90, despite a $2.1 million donation from former New York City Mayor Michael Bloomberg and a $2.75 million donation from former Enron executive John D. Arnold to support it.^[15]

Example results

Louisiana governor's race, 1991

Despite Republicans collectively attaining a majority of the support in the 1st ballot, the Democratic candidate Edwards won decisively on the second ballot. A factor in this seemingly anomalous result may have been tactical voting, which has been observed in some two-round electoral systems. On the other hand, a major contributor to Edwards' markedly increased vote may well have been the fact that Roemer endorsed Edwards prior to the second round. Additionally, Roemer had originally been elected to the governorship as a Democrat, having only changed his party affiliation in 1991.^[16] Under this system, party label is self-identifying, which means that David Duke was able to declare himself a Republican candidate without the consent of the Republican Party. Edwin Edwards' win is most likely attributed to the fact that David Duke was a former Grand Wizard of the Ku Klux Klan, and thus was unpalatable to mainstream voters, in spite of allegations of corruption during Edwards' first three terms. Evidence of this exists in the unofficial campaign slogan "Vote for the Lizard, not the Wizard." Another bumper sticker cited by the Wall Street Journal is: "Vote for the crook, it's important." ^[17] Polls had shown that Roemer could have defeated either Edwards or Duke if he had made it to the second round.

Washington 14th district state legislator, 2010

In this race a three-way primary led to a two-way race between two members of the same party (Republicans) in the general election. With over 20% of the population voting for the Democrat and neither Republican winning close to a majority in the primary, both of the Republican candidates had to appeal to Democrats and other voters who did not support them in the first round. For example, incumbent Norm Johnson came out in favor of same-sex civil unions, moving to the left of challenger Michele Strobel, who opposed them.^[20]

Washington state legislature, 2010 38th District State Senate

First Ballot August 17, 2010^[21]

In this heavily democratic district, Berkey was officially nominated by the 38th District Democratic Central Committee,^[23] but Democratic challenger Nick Harper bankrolled ads for the Republican candidate in an effort to "Squeeze The Middle" and prevent the moderate incumbent Berkey from running in the general election.^[24][25][26] When Berkey placed third in the primary by a margin of 122 votes, the Moxie Media scandal ensued: the state's election watchdog committee unanimously voted to refer the case to the state Attorney General Rob McKenna, who within hours "filed suit, alleging multiple campaign-finance violations."^[25] Despite a call several former state senators to hold another election, the election results were upheld and Berkey was prevented from running in the general election.^[25][26] Harper easily won the subsequent uncompetitive runoff election.

Washington state US Senate race, 2010

First Ballot, August 17, 2010 (only top three votegetters listed)^[27]

In this race, the three leading candidates' competition resulted in a more moderate and popular Republican facing off against the incumbent Democrat, with a relatively close general election. Clint Didier and Dino Rossi were the two main Republicans vying to run against the incumbent Democratic Senator Patty Murray. Rossi had much greater name recognition, had narrowly lost two races for governor, and was favored by the party establishment. Didier, a former tight end for the National Football League's Washington Redskins, had never run for elected office and was endorsed by Tea Party leaders Ron Paul and Sarah Palin. Didier might have been able to win the GOP nomination from Rossi in a closed primary that rewards candidates for appealing to the hardline of their base, but the more moderate Rossi was easily able to defeat Didier in the Top Two primary. While one might expect more Democrats in the Top Two primary to vote tactically for Didier, the Republican candidate who was doing much worse in polls against Murray, most Democrats seemed content voting for Murray. If any tactical voting occurred, it seemed to be on the Republican side, with the vast majority of the Republican voters choosing Rossi, perceived as a more electable candidate. In this case, the Top Two primary resulted in a more moderate Republican candidate running against the Democratic incumbent, and likely a much more competitive race than if the Tea Party candidate had run against Murray.^[28]

Criticism

Critics of the nonpartisan blanket primary object to calling it an open primary, and one judge in California even barred proponents from using the term in their advertisements.

Critics note the strong possibility of two candidates from the same party advancing to the second round; this becomes increasingly likely when one party runs drastically fewer candidates than another and thus faces less vote-splitting. Under the nonpartisan blanket primary, a party with two candidates and only 41% popular support would beat a party with three candidates and 59% popular support if voters split their votes evenly among candidates for their own party. In a case such as this, the Party preference expressed by a majority of the voters goes completely unrepresented in the general election. The results of one study comparing the results in Washington state between the 2004 (closed) and 2008 (top two) primaries, indicate that the top two primary reduced the likelihood of running against a same party candidate and it reduced the likelihood that a strong incumbent would face a challenger from his or her own party.^[29]

The nonpartisan aspect means that political parties cannot control which candidates are allowed to use the party name. Partisan primaries allow for one candidate from each party to advance to the general election; no other candidate may use the party name in their campaign.

Political Science Professor Todd Donovan published an article in 2012 for the California Journal of Politics & Policy called “The Top Two Primary: What Can California Learn from Washington?”^[30] Donovan was the only expert witness in favor of the top-two idea,^[31] for the as applied court challenge of Top-Two. His academic paper states, “The partisan structure of Washington’s legislature appears unaltered by the new primary system.” Donovan concluded, “The aggregate of all this did not add up to a legislature that looked different or functioned differently from the legislature elected under a partisan primary."

In Washington State, major parties have resorted to an alternate process of party nomination for partisan legislative and county administrative positions.^[32] This ensures that one official party candidate will be in the primary, theoretically reducing the risk of intra-party vote splits. However, the law does not allow nominations or endorsements by interest groups, political action committees, political parties, labor unions, editorial boards, or other private organizations to be printed on the ballot.^[33]

The indication of party preference as opposed to party affiliation opens the door for candidates to misrepresent their leanings or otherwise confuse voters. In 2008, a Washington gubernatorial candidate indicated party preference as "G.O.P." instead of Republican. A public poll found that 25% of the public did not know that the two terms mean the same thing.^[11]

See also

• Instant-runoff voting

References

Notes

External links

• Land of a Thousand Liebermans analysis by Nate Silver of FiveThirtyEight.com
• Will California's 'Top Two' Primary Work? New York Times provides six views on new California primary
• Washington's top-two primary gets voters the better choice Seattle Times editorial praising Top Two primary in Washington state 2010 elections
• Top Two primary worth considering advocating Top Two primary for Arizona
• Pros and cons of a top-two primary LA Times presents two views on the Top Two primary
• Stop Top Two Free and Equal Elections Foundation, a coalition of independent and minority party activists opposing the Top Two primary
• Washington State Grange v. Washington State Republican Party upholding top-two primary