How California's Top-Two Open Primary Shrinks Voter Choice in Congressional Races in November

In November 2010, under a partisan nominating system, California voters were able to choose between the following candidates for Congress: 53 Republicans, 51 Democrats, 39 minor party nominees, 3 independent candidates, and 14 declared write-in candidates, for a total of 160 candidates.

In November 2012, under Proposition 14, the top-two open primary system, California voters will be able to choose among the following candidates for Congress: 56 Democrats, 46 Republicans, 4 independents, zero minor party candidates, zero write-in candidates, for a total of 106 candidates.

This presumes that the person who places second in the U.S. House race in the 37th district in Los Angeles will be the one Republican who filed as a declared write-in candidate. It is possible the write-in candidate who places second in that race will be the lone Libertarian, or the lone Peace & Freedom Party member. No will know until the write-ins have been tallied. If the lone Republican write-in does not place second, then the statewide summary will be 56 Democrats, 45 Republicans, 4 independents, and one minor party member, again totaling 106 candidates.

If Proposition 14 had been on the ballot in June 2010 with the description, “Reduces voter choice in the general election”, it would not have passed. Instead it was on the ballot as “Increases participation in primary elections.” Ironically, the turnout in the California June 5 primary was so poor, it may have been the lowest turnout in the history of California presidential primaries, although this cannot be known for sure until all the votes are counted.

The San Francisco Chronicle’s story about the election returns is that the top-two system “shook up the system.” Actually, in every single congressional race in which one incumbent was running, that incumbent came in first. In the races with two incumbents running against each other due to redistricting, one of the incumbents always came in first and the other incumbent always came in second. As has been shown in Louisiana and Washington, top-two systems make it far easier for incumbents to be re-elected than normal systems do.


  1. […] How California’s Top-Two Open Primary Shrinks Voter Choice in Congressional Races in November and Independent and Minor Party Candidates Fare Poorly in California Top-Two Open Primary. This […]

  2. Sorry, should that last sentence read, “top-two systems make it far HARDER for incumbents to be defeated…”?

    This is a pretty grim analysis of top-two. I hope Arizonans are paying attention.

  3. Richard Winger · · Reply

    #2, thanks! I fixed the post.

  4. […] in NovemberJewish Telegraphic AgencyFull Election Results, and 'Top 2' OutcomesPatch.comHow California's Top-Two Open Primary Shrinks Voter Choice in Congressional …Ballot AccessKBOI -89.3 KPCC -BusinessWeekall 107 news […]

  5. Some thoughts on this subject:

    1. With the purpose of Top Two deciding who goes to the General, what was the affect of write-ins to races where there was one or two candidiates?

    2. The one benifit I see in the results, the voters decided who they wanted not the parties. Where there were multiple party memebers in a race, am I correct the voters made their choice not party officials?

  6. Richard Winger · · Reply

    #5, the write-ins in the primary haven’t been counted yet. Write-in space is banned in the general election.

    Not since 1909 have party officials determined who would run in November, in California. Under the old system, anyone was free to register into any party and run in that party’s primary, and the members of that party plus independent voters were then free to choose that party’s nominee, for congress and state partisan office.

    Party officials still have a big influence with voters, however. In the US Supreme race, the only reason Elizabeth Emken qualified for the November ballot is that the voters pamphlet (but not the ballot) said the Republican Party endorses her.

  7. Top Two – A bad idea whose time, unfortunately, came.

  8. It may be that the larger problem is with the role of money in politics and the costliness of a campaign and the necessary publicity. Usually personal wealth and/or connections to people who have money are necessary.
    Incumbency gives a candidate instant name recognition, which is often enough to garner votes. That fact will not be altered by any reform.
    There are a lot of moving parts that contribute to the status quo, so don’t fault top-two voting with failing to cure all the ills. It wasn’t going to solve everything, but it has the potential to weaken some of the bad things in the system.

  9. Richard G. · · Reply

    Top-two is the worst system yet. As a washington resident and libertarian, I now get no choices in November and not even an option to write-in.

  10. Richard G. · · Reply

    #5 You’re incorrect. The two big parties control top-two even more than elections before. One of the biggest problems is that the primaries generally are held in the summer when everyone is working or on vacation, thus leaving just the party hacks to fulfill their dreams.

  11. #6 – In the old system how would I be able to select races for candidates from different parties on different ballots?

    #9 – Why are you waiting for the general election in November? As a voter, your decisions in the primary are as important, and maybe more important, as in the general.

  12. Demo Rep · · Reply

    P.R. and nonpartisan App.V.

    Equal nominating petitions.

    NO more EVIL MORON robot party hack primaries, caucuses and conventions — which only produce evil moron extremists.

  13. #12– What does your first line mean?

  14. #11, in the old system, any registered voter was free to circulate a petition for any independent candidate who was running and help get such independent candidate on the ballot in November. That’s why there were 3 independent candidates on the November 2010 ballot for Congress. The US Supreme Court ruled in Storer v Brown in 1974 that every state must make it possible for independent candidates to get on the November ballot. At the time some states required candidates to win a party nomination in order to run, but the decision fixed that problem.

    One of the problems with top-two, especially in California, is that everyone must file in March at the latest. All routes to the November ballot, for candidates who decide to run later than March, are eliminated. Technically someone can file as a declared write-in in the primary as late as May, but realistically that doesn’t help, because a write-in candidate in a primary with at least two candidates printed on the ballot has almost no chance to place first or second in the primary.

    Under California’s old system, independent candidates could wait until August to enter the race.

  15. Demo Rep · · Reply

    # 13 Welcome newbie.

    P.R. = Proportional Representation in ALL legislative bodies.

    One method — Total Votes / Total Seats = EQUAL votes needed by each seat winner — via pre-election candidate rank order lists — excess votes down, loser votes up.

    App.V. = NONPARTISAN Approval Voting – executive/judicial offices — vote for 1 or more, highest win.

    Equal nominating petitions for all candidates for the same office in the same election area.

    ONE [general] election day ONLY.
    How many EVIL robot party hack extremists will be elected in Nov. 2012 and claim a gerrymander district majority *mandate* from Hell to do leftwing/rightwing whatever ???

  16. Lee Mortimer · · Reply

    One possible benefit would be if Top-two could be moved to late September or October, it might evolve to something like the French two-round election system. In the last two French presidential elections, voters could choose from a wide variety of parties and candidates in the first-round vote, then settle on one of the two finalists in the second round. In 2007 and 2012, turnout was virtually unchanged from the first to the second round of voting, indicating that all French voters found something to like about one of the two finalist candidates. The French system is a good model for the U.S. to emulate. Top-two could be a way to get us there.

  17. #14 – What i am trying to understand is under the old system, how would I be able to vote in the primary for different party candidates, minor parties, or independents for the different races if I had to pick a single ballot from the ballot choices. The one thing that Top Two gives me is the ability to vote for the candidates I want for each race, not what the parties were forcing me to pick from. Under the old system, if I was a member of one party, but in certain races I liked someone from another party or independent, I did not have the option to make that choice.

  18. Nick Kruse · · Reply

    When will we find out what party won the 37th U.S. House race?

  19. Demo Rep · · Reply

    # 19 — By July 6 – deadline for final county reports to the CA SOS — with possible recount chaos immediately.

    MAJOR powermad gerrymander party hacks in CA.

  20. Jim Riley · · Reply

    There are 11 Assembly districts which will have DD contests. All have overwhelming Democratic registration majorities, and most have no incumbent.

    There are 31 districts with a +20% Democratic registration plurality. 17 have a Democratic incumbent. In 11 of the 17, there will be a DR race in November; in 3 there was no on-ballot challenger; and but 3 will have a DD racing, pitting a Democrat incumbent against a Democrat challenger.

    In other words, when there was a Democratic incumbent, 82% could have had a DR race, if we include the 3 districts where a Republican could have qualified by ponying up the filing fee. A Democratic incumbent is more likely to discourage Democratic challengers and multiple Republicans are unlikely to challenge in strong Democratic districts. So it was possible for a Republican to advance with a small vote percentage. 7 of the 11 DR general elections are a rematch of a DR primary, so the Republican advanced simply by filing.

    There were 14 districts with an overwhelming Democratic registration majority, but with no incumbent running. These districts would be very likely to elect a Democrat. In 8 of those 14 districts, there will be a DD match up in November. That is, the electorate as a whole will choose who will represent them in Sacramento. Under the discarded partisan primary system, the Democratic primary would have chosen for the whole district, with the primary more susceptible to the influence of extreme special interest groups, such as the public sector unions that can target their primary GOTV at their membership.

    Because candidates have to appeal to the entire electorate, candidates will be more interested in attracting independent and even Republican votes. Under the old system, more moderate Democrats would vote for the only Democrat on the ballot. Under the Open Primary reform, they will vote for the best candidate in their view.

    Summary: In assembly districts with an overwhelming Democratic majority, and no incumbent, there is a much greater chance (57%) of a DD general election, compared to 18% in districts with a Democrat incumbent. It is likely that when these other incumbents are term-limited in 2014 or 2016, that ALL voters in the district will be able to participate in the election of their new (Democratic) assemblyman.

  21. Richard Winger · · Reply

    #19, probably not until the end of June.

    #21, your comment implicitly seems to say that you and other top-two proponents are really just interested in altering the California legislature. So why did Prop. 14 need to drag in congressional races? If prop. 14 had been limited to just state office, then it could have been written to provide that when someone gets 50% in the first event, that person is elected. That would have saved a fortune in campaign expenses.

    As to congressional races, of course there are no term limits.

  22. […] system, that means no D candidate. Well done. “As has been shown in Louisiana and Washington, top-two systems make it far easier for incumbents to be re-elected than normal systems […]

  23. Jim Riley · · Reply

    #14 Storer v Brown said that it was constitutional to require a candidate to leave a party a year before the primary in order to run as an independent candidate. Lucy Killea managed to get a bill passed that would reduce this to a year before the general election, but the US Supreme Court was content with requiring a candidate for the Assembly to leave a party 1-1/2 years before a 2-year term in order to run as an independent.

    As you know, the Top 2 Open Primary reform did away with those restrictions, choosing disclosure over regulation, and greatly reduced the qualifying requirement for independent candidates.

    It would appear that Chad Walsh has a credible chance of being elected as an Assemblyman as an independent. (against your nemesis Paul Fong). When was the last time an assemblyman was elected as an independent?

    I think you are misinterpreting the other part of Storer v Brown which was concerning the barriers that independent candidates faced, which were distinct and separate from those faced by partisan candidates. Top 2 Open Primary obliterated those barriers.

    The solution to the filing problem is to move the primary back to August. It was in August before WWII, while the presidential primary was in May. They were combined in June. Besides being better for state, congressional, and legislative races; it will be better for county offices, and cities that use the statewide elections for their own elections.

    Since the presidential primary is not a direct primary, and California Democrats will want to have some role in the 2016 nomination, there will be pressure to move the presidential primary back to February or March. It would be a shame to drag all the other elections along as a “cost-saving” measure.

  24. Jim Riley · · Reply

    #22/19 Why doesn’t the Secretary of State require reporting of the total number of write-in votes? Most of the counties do so (with the notable exception of Los Angeles).

    Something of a curiosity is the write-ins in AD 14 and 15 which are adjacent to each other in Contra Costa County (AD 14 extends into Solano, while AD 15 extends into Alameda). Both districts had a single Democrat on the ballot, but only AD 15 had a filed write-in candidate.

    AD 14 had 2655 write-ins, vs 1481 in AD 15. There was also a senate races in SD 3 and SD 9.

    So there were about twice as many write-ins, in the assembly district with no write-in candidate. It would be interesting to know whether there was some sort of displacement of write-in votes, geographically or on the ballot. That is, voters in AD 14 voting for an AD-15 write-in candidate, or voters voting for a senate write-in in the assembly write-in space (if there is this latter sort of mixup, voter intent might come into play).

    Or it is possible that voters had heard something about write-ins, and simply filled in the space where they didn’t like the candidate.

    I would think it would warrant looking into.

  25. Demo Rep · · Reply

    How many NON-votes are coming in Nov 2012 in the DD or RR gerrymander districts ???

    Stay tuned.

  26. Jim Riley · · Reply

    #22/21 I write only on behalf of myself.

    Your inference is not correct. I did an analysis of all the assembly races, and only (so far) have posted the results for the districts that are strongly Democratic dominated.

    The fact that I have not examined the senate or congressional races in detail does not imply that I am only interested in changing the California legislature.

    And you continue to ignore why I favor Top 2. It is so the people may choose who represents them. I am fundamentally a republican who believes in bottom-up democracy, where the elected officers represent and are representative of the citizens who elect them. If the officers are more representative of the entire electorate, rather than an extreme faction, that is a good thing. That they may be more “moderate” is actually a secondary consideration.

    Legislative terms in California begin in December, so it would not be practical to have a runoff after a November election. So you would have a convoluted system of some races being decided in a non-partisan general election in March or June or August, while others go to the general election, and you would maintain the obscene petition requirements for independent congressional candidates, as well as the separate partisan primaries.

    I think having separate party ballots, which were identical except for the meaningless presidential preference section and any party offices that were actually on the ballot was probably confusing. Voters may perceive that the ballot was specific to their party or that they were restricted to voting for legislative and congressional candidates of their party, when they weren’t actually materially different. It would have been much better to have a separate ballot for the presidential primary, and another for party offices.

    Better yet would be to have a completely separate election for party officers, using an all-mail ballot in the odd-years, or to recognize that selection of party officials is an internal matter (that would require a change to the state constitution).

    Because there will be multiple offices on the ballot, the cost savings in election administration is negligible (how much cheaper are elections in which the Superintendent of Public Instruction is determined in June?).

    The cost savings in campaigns may be illusory. There were 30 assembly districts with 2 or fewer candidates. There was no reason for these candidates to spend much, if any at all for the primary. If they did, it was for other reasons. There may be separate contribution limits for the primary and general elections. Maybe there is a requirement that some of the primary contributions be spent for the primary, or maybe they were wanting to intimidate the other candidate into giving up.

    Of the 50 districts with 3 or more candidates, only 10 (20%) had a candidate who received a majority. These potentially could have more campaign spending, but maybe not.

    The majority candidate probably had little concern about making the general election. So any spending they did in the primary was more tactical. Take the example of Phil Ting who received 55% of the vote in AD 19, in western San Francisco, extending south into San Mateo County. He appears to be an ambitious politician, having been elected assessor; failing miserably in an attempt to become mayor, and now rebounding in an assembly race. Maybe he will be content to be an assemblyman for 12 years, but perhaps he wants to run for mayor in the future, or some other office.

    His credibility as a candidate was damaged by his mayoral run where he spent $510 per vote and finished 10th. If he wants to run for mayor in the future, he needs to rehabilitate his electability image. By racking up a big win in the primary, he may discourage much spending by his opponent in the general election. If he gets 70% of the vote in the general election, he may appear invincible.

    Alternatively, he may have preferred to face a Republican in the general election. Getting more votes in the primary, means fewer votes for his 2 Democratic opponents. It would be interesting to see how much money was spent in the races where there was a majority candidate in the primary – and there was relative little risk of not reaching the general election vs. those races where a candidate was fighting to reach the next round.

    I see no reasons that US representatives should not be chosen by the entire electorate of their district. Isn’t that what the US Constitution says should happen? An open primary may be more effective in states with term limits like Louisiana and California. When the Louisiana legislature reinstated the Open Primary for congressional elections, most legislators were comfortable with the open primary since that was how they had been elected. Having a separate congressional partisan primary was alien.

    Maybe as more and more representatives are elected in Open Primaries, Congress will permit States to hold an open primary prior to the 1st Tuesday after the 1st Monday in November, and permit a winner to be elected in the open primary.

  27. C. T. Weber · · Reply

    #5, under the old system, it was the rank and file party voters who decided who would represent their party in the general election not the party bosses. We don’t want outsiders picking our candidates. Nearly 80% of the voters belong to a party. The 20%+ should not force themselves on the rest of us. Now to be effect a candidate needs to run two general elections, the small insignificant primary and then the larger more significant general election. People do not even start thinking about elections until labor day, long after the now useless primary. In my opinion the purpose of a primary is so the voters in a party can decide who will face the other party’s nominees in the general election where the people will then elect someone. If we would just use an open list form of proportional representation we could eliminate the primary and save billions of dollars.

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