Politics & Policy

California’s Crazy Election Quirks Limit Voter Choices and Create Chaos

Clinton greets supporters in Riverside, Calif., May 24, 2016. (Lucy Nicholson/Reuters)
The state’s primary system is the result of a reform that is only making things worse for voters.

New polls show that the Democratic primary in California is neck and neck between Hillary Clinton and Bernie Sanders. If the election is close, and Hillary narrowly wins, it could be because arcane and suspect rules gave her an artificial advantage. A Hillary win would rob Sanders of the ability to claim momentum and would blunt his efforts to fight for the nomination up until the Democratic convention.

California has made such a royal mess of its entire primary system that it needs to do a complete overhaul to restore the credibility of the system.

Start with California’s overly generous early-voting law, which allows people to cast ballots a full four weeks before Election Day. Last week, the Field Poll found that 23 percent of people it interviewed had already voted early or by mail. Clinton led Sanders by nine percentage points among those voters. Of the remaining 77 percent of voters, Sanders led by a single percentage point.

Almost all of the early voters who were interviewed by Field had filled out their ballots before the State Department’s inspector general issued a report savaging Hillary Clinton for her exclusive use of a private e-mail server, which broke the rules associated with the Federal Records Act. “Voters shouldn’t vote too early, when events and debates can still shape the race,” says Richard Winger, editor of Ballot Access News in San Francisco. “It’s like having jurors in a court case vote and leave the courtroom before all the evidence is presented.”

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Then there is the issue of how California’s 2.2 million registered nonpartisan voters are treated (the term used for them is “Decline to State”). Republicans exclude them from their presidential primary, but at least they’re honest about it. Democrats require nonpartisan voters to specifically request a Democratic ballot in order to receive one in the mail with the names of Hillary Clinton and Bernie Sanders on it. Voters at the polls on Election Day must specifically ask for a Democratic ballot, and they won’t be given another one if they start marking a nonpartisan one by mistake.

These hoops may have real consequences. Hillary Clinton leads among registered Democrats by nine points in the latest Field Poll. But she trailed Sanders by an astonishing ratio of 2 to 1 among independent voters. An early exit poll conducted by Capitol Weekly found that 60 percent of nonpartisan voters either thought they would automatically receive a Democratic ballot or didn’t understand the process. Indeed, an analysis of the 322,000 nonpartisan mail ballots turned in by last Thursday show that only 40 percent of them even cast a vote for president.

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“This is the mind-boggling, biggest story,” Michael Trujillo, a Democratic consultant who served as Clinton’s field director in 2008, told CBS News last week. “If Bernie Sanders comes up short, you can literally count the number of ballots from people who wanted to vote for him but just didn’t take the extra step.”

Paul Mitchell, vice president of the California-based voter-analytics firm Political Data Inc., says the crossed signals are a direct result of the fact that California has changed its primary system to a “top two” model. For statewide and congressional offices, all candidates from every party are on one ballot in the primary, and then the top two candidates advance to the general election. For presidential primary elections, though, the parties hold separate primaries. In the presidential race, only registered Republicans may vote in the GOP primary, and Democrats can receive votes only from registered Democrats and people listed as “no party preference.”

“This is a black eye on our process,” Mitchell told CBS News. “My real fear is . . . that there are going to be tens of thousands or hundreds of thousands of voters who feel that they had a right to participate but something in the process failed them.”

#share#The bizarre “top two” primary has been a feature of California’s elections since 2010, when it was approved by 54 percent of California voters. In effect, it abolished the state’s traditional primary and set up a “trial run” general election a full five months before the November vote, which is restricted to only the two top finishers in the June vote. There is no opportunity for voters to support an independent candidate or even to cast a write-in vote.

The system was invented in Louisiana in the 1970s when then-governor Edwin Edwards was trying to find a way to divide his opposition and stay in office. Edwards did win several elections under the new system before being convicted of bribery and spending several years in federal prison. So the nation’s largest state — one with 40 million people — is saddled with a perverse system dreamed up by one of the most corrupt public officials of his generation.

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The system is prone to bizarre outcomes. This year it’s likely that two well-known Democrats, state Attorney General Kamala Harris and Congresswoman Loretta Sanchez, will finish first and second and go on to a November runoff in which none of the lesser-known Republicans even appears on the ballot. As the Hoover Institution’s Steven Greenhut has pointed out:

If a California-style “top two” primary were in place for presidential races, in 2008 the nation’s voters would have had to choose between Barack Obama and Hillary Clinton in the general election. There would have been no “third party” candidates on the ballot — and no chance for voters to show their disgust by writing in “Mickey Mouse.” . . . Instead of enhancing voter choice, this reform significantly contracts it. The only way to protest the choices is to not vote at all.

As for claims that the “top two” primary would produce more moderate winners, excluding those on the partisan extremes, it hasn’t worked out that way. California’s legislature is just as ideologically divided as ever. A 2013 study in the American Journal of Political Science examined primaries and partisanship across the country over the previous 20 years. It found no correlation between the type of primary system and the degree of polarization and partisanship in legislatures.

Predictions that a “top two” voting system would boost voter turnout haven’t panned out. “California turnout declined more than that in any other state between November 2010 and November 2014,” says Richard Winger.

California’s “top two” system happened by accident. In 2009, California governor Arnold Schwarzenegger and the Democratic legislature didn’t have the votes to pass a tax-increasing budget. They secured the final vote needed only by agreeing to the demands of a moderate state senator, Abel Moldanado, who insisted that the price of his vote was putting a “top two” primary on the June 2010 ballot. Moldanado was convinced that such a system would give him a better chance of getting a place on a general-election ballot in the future. His political career ended in 2010, however, when he actually won the Republican primary for lieutenant governor but went on to lose the general election in November.

#related#I grew up in California and went to school there, leaving in the mid 1980s. Since then, sadly, California has become a poster child for bad governmental behavior: It has gutted the law that limited annual increases in government spending (the law linked increases to the state’s inflation rate and population growth); it has cordoned off huge chunks of its budget for the use of fossilized public-education interests. In election law, its record has become equally dismal. It’s the only state in which it’s illegal to ask a voter for photo ID, and its “top two” primary system has limited voter choices. Now come news that in 2018 it will adopt same-day voter registration, which will allow people to register and then immediately vote on Election Day — an engraved invitation for voter fraud.

It’s sad to see the Golden State further tarnish its image with its confusing, fraud-prone, and unfair set of election laws. Only now, because of the race between Hillary and Bernie, is California’s problematic primary system receiving national attention. But here’s hoping the deserved ridicule will prompt some rethinking of supposed “reforms” that are only making things worse.

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