All Bark, No Bite: How California’s Top-Two Primary System Reinforces the Status Quo

December 10, 2012

by Nathan Yu

During the November 6 general election, the state of California saw the effects of one fascinating component of its electoral system:  its top-two open primary.

Over two years ago, California voters proposed and passed Proposition 14, a ballot initiative that drastically reformed the state’s primary system. Prior to Prop 14, California conducted closed primary elections, which meant a voter could only vote for candidates in his own political party. The candidate with the most votes from each “qualified” political party—the Democratic Party, Republican Party, American Independent Party, Americans Elect Party, Green Party, Libertarian Party, and Peace & Freedom Party—advanced to the general election where he would face the candidates who advanced from the other parties. In a sense, the old system guaranteed that a third party or independent candidate could secure a spot on the November general election ballot.

Proposition 14, approved by 53.8% of California voters, established a top-two primary system. This type of electoral procedure gained national exposure when the Supreme Court ruled on a challenge to Washington state’s top-two primary system in 2008. Essentially, for all political offices other than the President of the United States and any county central committees, California holds an open primary in which it lists all candidates, regardless of party preference, on the primary ballot. Registered voters cast their votes, and the top two vote getters, regardless of party, advance to the November general election. The County of Alameda published a helpful, easy-to-follow visual guide of the top-two primary system.

Our Election Law course briefly covered top-two primaries in a recent discussion, particularly in the context of third party and independent candidate access to ballots. After Proposition 14 passed, discussion of its effect on California’s democratic process occurred at both the state and national levels. For example, the New York Times featured an editorial debate on the system’s viability.

The recent general election provided critics of the top-two primary system with their first opportunity to gauge the effects of the new process. A glance at the matchups for seats in the State Senate, State Assembly, and the U.S. House of Representatives reveals that very few third party and independent candidates made the general election ballots.

• In twenty total State Senate races: two third-party candidates appeared
• In eighty total State Assembly races: one third-party candidate and one candidate who listed no preferred party appeared
• In fifty-three total Congressional races: four candidates who listed no preferred party appeared
• In 153 total races: eight third-party or independent candidates appeared (roughly 5%)

Because third-party and independent candidates simply do not appear, and because Proposition 14 removed the ability of voters to write in candidates at the general election stage of the process, critics contend that the top-two primary system significantly limits the amount of choices voters have. Another interesting byproduct of the top-two primary system is the creation of intraparty seat races.

• In twenty total State Senate races: a Democrat opposed another Democrat in two races
• In eighty total State Assembly races, there were seven Republican/Republican matches and eleven Democrat/Democrat matches
• In fifty-three total Congressional races, there were two Republican/Republican matches and six Democrat/Democrat matches
• In 153 total races, candidates from the same party faced one another twenty-eight times (roughly 18%)

It may be difficult to determine whether California voters were content with their choices on Election Day. The top-two primary system intends to eliminate partisanship, but the above results do not indicate any shift from the traditional Democrat and Republican dominance of the past. Ideally, the top-two primary system would also encourage all voters, regardless of party, to participate in the primary election. This year, however, a near-record low 31.1% of voters cast a primary ballot. With results like these, California may not usher in the national shift that some believe is possible.

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