Democrats are Largest Party in California's 31st U.S. House District, But Top-Two Open Primary Leaves Party with No Candidate in November

California’s 31st U.S. House district ballot in November 2012 will list two Republicans, Gary G. Miller and Bob Dutton. At the June 5, 2012 primary, Miller placed first with 26.9% of the vote, and Dutton placed second, with 25.1% of the vote.

However, the district has more registered Democrats than registered Republicans. The registration in the district is: Democratic 40.8%, Republican 35.3%, independent 19.3%, other parties 3.6%. The district is centered on San Bernardino County and had no incumbent running this year.

Four Democrats, but only two Republicans, ran in the June 5 primary. It is virtually certain that if fewer Democrats had run, Pete Aguilar, a Democratic candidate and Mayor of Redlands, would have placed among the top two. Aguilar placed third, with 22.5% of the vote. Democrats had been expecting to win this seat in November, but now it is impossible, because no Democrat is on the November ballot.

Miller had been a sitting congressmember in a district in Orange County, but he moved into this district. See this story which explains why. Miller was the beneficiary this year of $709,000 from the National Association of Realtors PAC, and from a super-PAC also funded by the Realtors. The PAC did not contribute directly to Miller’s campaign, but used the money to independently send direct mail and broadcast ads in support of Miller. Miller sits on the House Financial Services Committee, which oversees the real estate industry. See this Whitter Daily News story for more detail. Miller also raised $736,115 in direct contributions, according to the FEC web page.

Supporters of top-two would say that the Democrats in the 31st district are fortunate, because they get to choose between two Republicans. Top-two proponents say the Democrats are free to choose the more “liberal” of the two Republicans. But neither Miller nor Dutton is “more liberal” than the other. Dutton is a sitting State Senator who was the Republican leader in the State Senate, until he resigned his leadership position earlier this year so as to concentrate on his Congressional race. Both Dutton and Miller are standard orthodox Republicans. Thanks to Nicholas Heidorn for the link, and to Rob Richie for drawing attention to this race.


  1. Baronscarpia · · Reply

    …and so continues the purchase of American democracy by those with the fattest wallets. Oh…sorry,…I meant to say “the most free speech,” of course.

    Let’s hear it, “strict constructionist” students of American history…let’s hear how this is a logical product of our Founding Father’s “original intent.”

  2. Jim Riley · · Reply

    It is naive to think that a district with a small Democratic registration edge is a “Democratic” district. Registered Republicans are more likely to vote than registered Democrats, and independents tend to favor Republican candidates.

    There are 7 congressional districts with a Democratic registration edge of less than 10%. In 6 of them, Republican candidates collectively outpolled the Democratic candidates. The one exception was CA-3, which had the largest registration margin that was under 10%, and whose incumbent, John Garamendi, is the former Lieutenant Governor of California, and has run for state office many times, so he would pick up votes for reasons beyond mere partisanship.

    Note: I would treat AI and AE voters as independents, and then combine the L, G, and P&F voters as ideologically particularist parties.

  3. Richard Winger · · Reply

    It appears Republicans turned out at a substantially higher rate in the California primary this week, than Democrats did. One reason that neutral observers believe Pete Aguilar would have won in November (if only he had got on the ballot) is that the district is 49% Hispanic, and neither Republican is Hispanic. In 2008, territory encompassed by this district voted 56% for Barack Obama and only 41% for John McCain.

  4. Lee Mortimer · · Reply

    I’ve often thought of this as the one glitch in the Top-Two system. But there would seem to be an easy fix. Instead of “top two,” make it the “top two in different parties.”

  5. Dan Meek · · Reply

    Were all of the 4 Democrats in the race authentic Democrats? Or were some of them “ringers” recruited by the Republicans to split the Democrat vote? In any event, the result in this district illustrates the benefit of recruiting “ringers” to run as “preferring” the other major party.

    As for Mr. Mortimer’s comment, what about minor parties and non-affiliated candidates?

  6. Chris J · · Reply

    What was the voter turnout for this race? I understand that the numbers are not yet final.

  7. I wrote a page about how pure proportional representation works, in case anyone wants to quit chasing their tails;

  8. Jim Riley · · Reply

    #3 35% HCVAP

    Countywide turnout was 29.55% for Republicans, 21.64% for Democrats.

    Miller’s current district is in Los Angeles, Orange, and San Bernardino (though a different area than the new district) counties, and his registration is in Los Angeles County. He filed with a PO Box in Rancho Cucamonga – though as you know he doesn’t even have to reside in California until November.

  9. […] reports Richard Winger (Ballot Access News) about the effects of California’s open primary law, under which the top two vote-getters in the […]

  10. Lee Mortimer · · Reply

    #5 (Dan Meek), If a minor-party or non-affiliated candidate comes in first or second, s/he would go to the general election ballot. If two non-affiliated candidates finished first and second, and a Democrat and a Republican finished third and fourth, the two non-affiliated candidates would face each other in the general election.

  11. Richard Winger · · Reply

    #10, in the real world, that never happens. There have now been 74 elections for state and federal office under top-two systems, in which a minor party member ran and there were at least two major party members running in the same race. In all 74 elections, the minor party member failed to place first or second and thus couldn’t continue campaigning in the general election season. Top-two shuts down the flow of ideas.

  12. Nick Kruse · · Reply

    If you look at the open primary as BEING the general election, and then a few months later the “general election part 2” happens, the top-two is a very good idea. The reason some people don’t like top-two is because they continue to view the November election as the general election.

  13. Demo Rep · · Reply

    Gee – TWO plurality extremists – Elephant versions – got nominated.

    See the Egypt Prez top 2 primary.

    How about declaring the MORON top 2 stuff as evil, rotten and stupid ???

    i.e. NO need to beat the dead top 2 horse any more.
    ANY CA election law reformers with ANY brain cells ???

    P.R. and nonpartisan App.V.

  14. #12, the tradition in the United States that the important elections are in November of even-numbered years is extremely deep-seated. And it is bolstered by federal law. In 1845 Congress told the states to choose presidential electors in November; in 1872 Congress told the states to choose members of the U.S. House in November. Turnout in November presidential elections is far larger than turnout in any other election.

    It would be absurd for Canada to hold a parliamentary election, and provide that Quebec votes in February, and then Ontario votes in April, and Manitoba votes in June, and British Columbia votes in August. But if you are going to presume that the primary is “the” election, that is what you are doing to the United States. Congressional primaries in the U.S. run from March (Illinois and Ohio) to September (Massachusetts, Delaware, New Hampshire).

  15. Nick Kruse · · Reply

    @14-So your only real objection to what I said is that it goes against “tradition”. Looking at last Tuesday’s primary as a general election, there were a lot of third party candidates that were on the ballot. Unfortunately, they didn’t advance to the next round. Maybe next time around some candidates will.

  16. Richard Winger · · Reply

    #15, Louisiana has used top-two for 35 years. Never once in all those years did a minor party member place first or second, if there were at least two major party members running in that same election. All these records are in my declaration in the Washington state case on top-two. You can read my declaration on the Washington secretary of State’s page. The web page, under elections, has a choice for “scholars” or scholarship. Under that is a link to all the documents in the top-two case.

    There are other reasons to be opposed to top-two than just what it does to minor parties. Top-two gives incumbents an edge, compared to normal elections. Between 1960 and 1976, Louisiana used a normal partisan system for congressional elections. During that period 7 incumbents were defeated. Then Louisiana switched to top-two, and for the period 1978-2006, only one incumbent from either house of Congress lost (not counting 2 races in 1992 when two incumbents had to run against each other due to redistricting). Then Louisiana went back to a normal partisan system, for Congress, starting in 2008, and two incumbents lost that year; and another lost in 2010.

    Washington state had the same experience. It started using top-two in 2008 and since then no incumbent from either house of congress in that state has been defeated. Yet nationally, 28 were defeated in 2008 and 62 in 2010.

    In California this week, incumbents came in first in every single race in which they ran. In the few districts with 2 incumbents, one incumbent came in first and the other one placed second.

  17. Demo Rep · · Reply

    #14 Obviously 2 year terms for U.S.A. Reps. in the 1787 top secret Federal Convention — with the Const getting ratification by 9 States in 1787-1788 (Art. VII).

    Was ANY U.S.A. territory allowed to have territorial legislators be elected for more than 2 years ???

    After the various top 2 primary political train wrecks —

    P.R. and nonpartisan App.V.

    WHO will take the lead to get REAL Democracy into CA — before it is too late ???

  18. bacchys · · Reply

    I don’t see the problem here other than partisans of a major party are stung because they don’t have a nominee for an office. For once, the rules don’t favour them. In other years, the Republicans will be the ones howling about it.

    Nothing prevented the Democratic Party from seeking to limit their field and prevent a splitting of the vote among their members. As far as I am concerned, our electoral system should take no official notice of party and should not subsidize or support any political party.

  19. Richard Winger · · Reply

    #18, the basis of the pending US Supreme Court lawsuit filed by the Washington state Democratic Party has nothing to do with the party not having a member in a certain race. The basis for the lawsuit is Freedom of Association. Specifically, that individual candidates are listed themselves on a ballot with a certain party name, even though the party itself may consider the candidate someone the party doesn’t want to associate with.

    Freedom of association implies that the government can’t tell groups who can and can’t be members.

  20. The big picture in Top 2 is that NEITHER Gary G. Miller and Bob Dutton are representing the Republican Party. Political parties no longer own slots on the general election ballot. So the headline “But Top-Two Open Primary Leaves Party with No Candidate in November” is correct not only for California’s 31st US House Districts but for all Congressional races and the rest of the races for that matter.

    Get used to it listening to the outcomes of allow ALL voters, not political parties, to define who is on the General election ballot.

  21. Richard Winger · · Reply

    #20, thanks for joining in. Why not just abolish party labels on the ballot? That would end several lawsuits pending against top-two systems. It would also seem to advance your goals. If you want to minimize partisanship, why not just work for non-partisan elections with no party labels? Certainly that would be a good idea for Arizona local judicial elections, and county elected offices.

  22. Richard,

    In legislative races in California and Arizona, my data shows that an independent candidate has never won. And the odds of a minor party candidate winning are infinitesimal (calculated in terms of how many won out of the total number of elections since statehood of state). So, Top 2 is not the problem or the issue in terms of minor parties or independents being elected.

    The minor party issue is a desire to own a slot on the general election ballot – running but knowing they haven’t a chance. It boils down to a desire for state sponsorship of a minor groups message (the cost of the former partisan and general elections). This is why I can’t figure out how a Libertarian would be fighting for the right of state sponsorship? As Ernest Hancock (editor of Freedoms Phoenix asked – why are Libertarians fighting to be state recognized, like Communists in the old Soviet Union?

    The Top 2 is almost the ultimate individual vs individual contest – almost because some would favor NO party identification and the candidates duke it out mano-a-mano based on who they really are.

    And…FYI…thank you Richard for hosting this national forum.


  23. Richard Winger · · Reply

    An independent candidate was elected to the California legislature in 1986, 1990, 1992, and 1994. A minor party member was elected to the California legislature in 1999.

  24. bacchys · · Reply

    #19: If the basis of the lawsuit is freedom of association, it seems a sure loser to me. SCOTUS knocked down open primaries on that basis, but this isn’t an open primary system. It’s a no-primary system. The Democratic Party may not have been able to compel any candidate from being the ballot, but it certainly could have done a number of things to limit the field of Democratic candidates, such as withholding support and threatening to withhold future support if an unwanted candidate refused to bow out or at least drop the Democratic label.

    I agree with you that party labels shouldn’t be on the ballot. I don’t think there should be any official recognition of faction in the government, let alone any endorsement or subsidy of political parties.

  25. See,
    Will CA’s New ‘Cajun Primary’ System Allow Minority GOP To Capture Congressional Seats?

    That article discusses the undemocratic potential of the ‘top two’ open primary system.

  26. #23 Four independent and 1 minor parties winners in thousands of races since statehood? You just made my point. The issue was obviously not Top 2 in these previous elections. Already a few non-major party candidates are mano-a-mano in two candidate standoffs in a few races in 2012. It is not running (knowning you are going to lose), but running with a chance of winning. Unless you love suffering defeats (Cubs fans), your statistics might show an advantage for minority and independent candidates in a few years. We just launched the boat. I read these results as saying that things have been dismal for minor party and independent candidates up to now.


  27. Richard Winger · · Reply

    #26, my list in my comment was not a complete list of independent and minor party candidates who have won partisan office in California. There were also such victories in 1944, 1936, 1934, 1928, 1922, 1918, 1916, 1914, 1912, 1908, 1906, 1904, 1902, and many years in the 19th century.

    In 2010, independents were elected to the state legislatures of ten states, and none of those ten states were states using top-two. Top-two is an impediment, not an assist, to the chances for independent candidates to be elected. It is true that independents have also been elected in Louisiana during the time top-two has been used in that state.

  28. Jim Riley · · Reply

    #27 There are 3 states that used Top 2 (or a variant) before 2010. One (Louisiana) did not have a general election for the legislature in 2010, and another (Nebraska) does not have partisan elections, so while you can claim that no independents were elected, no Democrats or Republicans were elected either.

    So your claim amounts to one that Washington did not elect an independent legislator in 2010. But recall that in 2006, the last under the archaic partisan nomination scheme, there was only ONE candidate for the legislature who was not a Democrat or Republican.

  29. Jim Riley · · Reply

    Quentin Kopp could not have been elected as a Republican or a Democrat in that district. It is quite likely he would have been elected under Top 2, and he had nearly been elected mayor under a Top 2 system. Since he was term-limited, the district has been close to 80% Democratic (Jackie Speier and Leland Yee).

    Lucy Killea was elected in a special election. She ran as independent in 1992 (and the Democrats did not run a candidate). She also had to get the law changed so that she could even run for re-election. At the time, Killea expressed interest in the non-partisan Top 2 elections used in Nebraska.

    Audie Bock’s election in 1999 was a fluke.

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