Top Two Primaries and Third Party Voters: A Due Process Mathematical Mismatch

January 30, 2019

By: Jonathan Barsky

California currently employs an unusual electoral system, which is colloquially known as the “Top Two” primary, in both federal and state elections. Under this system, all of the candidates are thrown into a nonpartisan “jungle primary” that takes place in June and the two candidates who earn the most votes, regardless of party affiliation, advance to the November general election. The only exception to these rules is the presidential election, which still remains open to all major party candidates and several minor party and write-in candidates.

Over two posts, I will address potential constitutional flaws in California’s primary system. This post will discuss a Fourteenth Amendment injury that voters suffer stemming from the Due Process Clause, while the second post will analyze a First Amendment objection rooted in the associational rights of political parties, focusing on California Democratic Party v. Jones and Washington State Grange v. Washington State Republican Party.

In 1983, the Supreme Court issued a decision in Anderson v. Celebrezze, which struck down an Ohio law requiring independent presidential candidates to file for candidacy in March, holding that it placed unconstitutional burdens on the rights of voters supporting those independent candidates. The Court explained that candidate eligibility requirements affect the constitutional rights of voters supporting those candidates, specifically defining the ability to associate with other voters to advance shared political ideas as “an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment.” While this analysis largely tracks similar decisions issued in equal protection cases, this due process argument require a lesser showing of harm by the plaintiffs challenging the system. Therefore, Anderson’s due process theory may provide an easier route to challenge the California primary system.

While the Anderson decision discussed the special context of presidential elections, two of its core principles appear to cast significant doubt on the legality of the California system. First, since even a strong third-place finish will not allow a candidate to advance to a general election ballot, the strong support for the two major parties leads to a system-wide “heav[y] burden” on voters who support other candidates. This system, in practice, disadvantages minor party and independent candidates, mirroring the problems in Ohio’s law that troubled the Anderson court. Second, like the Anderson restrictions, the use of a June primary to winnow the field denies the ability of minor party and independent candidates and their voters to organize at the height of the electoral season. The Anderson court noted that the March filing deadline occurred far in advance of the final selection of the major party candidates, which systematically disadvantaged minor parties. As a historical matter, the Court noted “several important third-party [presidential] candidacies in American history were launched after the two major parties . . . selected their nominees at national conventions during the summer.” Furthermore, like the Ohio deadline, the California system prevents late-entering minor party and independent candidates from “serv[ing] as the focal point for . . . voters who decide . . . that they are dissatisfied with the choices within the two major parties.” While a June election does allow an additional three months of organizing compared to the March deadline in Anderson, the burden on “the ‘availability of political opportunity’” is difficult to deny. While I cannot predict how courts would undertake the required balancing between those harms and the interests that could be cited by California in defending its system, it is notable that a 2015 challenge made by several minor parties that ultimately went unheard by the Supreme Court did not present a due process claim.

One final difference between the California system and the challenged Ohio procedure from Anderson is that a primary is still a true election. It could be argued that California’s system provides an election open to all candidates in June and the November ballot is closer to a runoff. In fact, a group that supported the California system when it was challenged in state court made this precise analogy in a brief. However, as at least one commentator noted at the time, the U.S. Supreme Court has already held that Congressional elections must be held in November according to federal law. When California voters go the polls in November and vote for their representatives in Congress, major party voters are highly likely to find their interests accounted for through one of the two candidates on the ballot while minor party and independent voters may not. The Supreme Court has held time and time again that “protecting the Republican and Democratic Parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena.” Should the Supreme Court have another opportunity to hear a challenge to the California system, its body of case law would support the conclusion that the due process rights of California voters who are dissatisfied with the two major parties should be vindicated and the Top Two primary system should be overturned.