#RepealTopTwo – Green US House candidate Michael Kerr becomes only fifth California Green to make it onto the November ballot since top two elections were put in place in 2012

Across the United States, onerous ballot access and election laws make it difficult for minor party candidates – including Greens – to appear on the ballot. Recently one ‘exception that proves the rule’ occurred in California.

By finishing second for US House of Representatives (D-10) in the June 2022 California primary, Michael Kerr will become only the fifth California Green to appear on the November General Election ballot (for state or federal office), since the state’s extremely restrictive top two elections system went into effect in 2012.

Top two elections have had a decimating affect on minor party candidates’ ability to appear on the general election ballot. Prior to top two elections being enacted in California via Proposition 14 in June 2010, each ballot-qualified party held a primary election, and the winner was guaranteed a place on the November general election ballot as the party’s nominee, like in most of the rest of the United States.

But under top two elections – in place only in California and Washington state – party primaries are eliminated and voters are limited to only two General Election choices – the top two finishers in a ‘jungle’ primary, where all candidates from all parties (and all independents) appear on the same ballot.

In 2020 Kerr finished 3rd in a top two U.S. House primary against a Democrat and Republican, receiving 7.4% of the vote, and being eliminated at that point. This time Kerr and the incumbent Democrat were the only two candidates on the ballot, as the one Republican candidate that had filed for the seat was ultimately ruled ineligible. As a result, Kerr received 14.9% in the primary and finished in the top two, thereby advancing to the General Election.

Top Two makes it exceedingly rare for minor party candidates to appear on the General Election Ballot

Since 2012 when top two elections went into effect in California, no minor party candidate for state or federal office has advanced to a general election when there is both a Democrat and a Republican running in the primary; and only once has a minor party candidate advanced when there were two members of one major party but none from the other (see attachment #2 below). That’s once in ten years.

The only other times minor party candidates have advanced to a general election under top two in California have been the rare cases when only one Democrat or Republican files for the primary, effectively leaving second place up for grabs. In these cases, sometimes a single minor party candidate may be the only other candidate to file, and they both advance. Other times multiple minor party candidates and independents file and effectively compete for second place. Still other times, if no other candidate but a single major party candidate filed, minor party candidates (and others) have run as write-ins seeking the second place.

How has this affected the Green Party of California (GPCA)? Prior to top two, for the ten general elections between 1992 (when the GPCA first qualified for the ballot) and 2010 —133 Greens appeared on the General Election ballot for state and federal office, an average of 13.3 per cycle. In the five subsequent General Elections under top two (2012-2022), only five Greens in total will have appeared on the General Election ballot, an average of only one per cycle.

Among California’s other legacy minor parties in California, only four Peace and Freedom Party candidates and three Libertarians have appeared on General Election ballots under top two, and none from the American Independent Party.

Without being on the General Election ballot because of top two, when the largest number of voters are paying attention and participating, minor parties in California have ballot status mostly in name only, but not in practice.

How did Top Two happen?

California’s top-two elections system was placed on the June 2010 ballot by the state legislature, without any analysis or public hearings, as part of a February 3, 2009 2 a.m. state budget deal. Orchestrating that deal, Republican State Senator Abel Maldonado (R-Santa Maria) effectively politically extorted the state legislature (led by Democrats) to place a measure on the June 2010 ballot to enact top two elections, in exchange for his needed vote to pass the state budget. At that time the budget was seven months late, and passage of the budget under state law (since amended) required 2/3 in both houses of the State Legislature. Maldonado represented the final needed vote in the State Senate. Of the middle-of-the-night budget deal, the San Jose Mercury News reported “One assemblyman called the deal “blackmail, extortion, and skulduggery.” Another labeled it “political ransom.”

Back in 2010 all the state’s political parties opposed top two – including the Green Party. But there was not an organized, well-funded ‘no’ campaign to complete with the ‘yes’ campaign’s extensive corporate funding. Ultimately Top Two went on to pass with 53.8% of the vote in June 2010 — with little information reaching the public about its likely shortcomings and defects, compounded by what many Greens felt was a biased and unbalanced official title and summary in the Voter Information Guide that unduly favored the measure, a title and summary that was challenged and almost overturned in court.

The GPCA has long argued that this fundamental lack of due diligence by the state legislature about how the state’s democracy should be structured needs to be addressed. In July 2021 the GPCA sent a letter to the chairs of the elections committees of both the State Assembly and State Senate arguing that “Now that top two elections have been in place since 2012, it is time for a review to see how top two has functioned in practice, and whether claims made for it in the official ballot statement and in the ballot arguments have borne out.”

“There are two major problems inherent to top two that are already well-documented – one affecting major party candidates and their supporters, and one affecting minor parties candidates and their supporters:

–  Top two primaries are not designed to handle large numbers of competitive major party candidates, with vote-splitting among them creating potentially rendering random and unrepresentative results

– Top two elections also reduces voter choice by creating new barriers to diverse voices historically provided by the state’s smaller ballot-qualified parties.”

Despite ample documentation of these problems with top two, the Green Party never heard back regarding its request.

Bill introduced to repeal top two

On June 20, 2022 California State Assembly member Kevin Kiley (R-Rocklin) introduced ACA 16, which would repeal the top-two system. Kiley represents the part of California that is mostly in the State Senate Fourth District — the fourth-most Republican State Senate district in the state by registration with 38% compared to the Democrats 35.69%. In the June 2022 State Senate primary, six Republicans split 59.2% of the Fourth District vote, while two Democrats split 40.8%, leading to both Democrats advancing to the General Election ballot.

This is the third time since top two was enacted that vote-splitting among candidates from the larger major party in a legislative district has led to two candidates from the smaller major party appearing on the General Election ballot. Previously this happened in US House District 31 (2012) and State Assembly District 38 (2020). On a fourth occasion – State Assembly District 76 (2018) – the two major parties were effectively even in voter registrations, but vote splitting among multiple candidates from one major party led to the other winning both ‘two two’ primary seats (see Attachment #1 below).

What’s next for ACA 16? First it needs to be assigned by the Assembly Rules Committee to the Assembly Elections Committee for staff analysis, committee review and public comment. But owing to the timing of the bill’s introduction – and perhaps the politics of the matter – it’s not likely to happen.

ACA 16 was introduced on June 20, soon after the June 7 election that resulted in the extreme vote-splitting in State Senate District Four. However the deadline for a constitutional amendment sponsored by the state legislature like ACA 16 to be placed on the November General Election ballot was June 30. At the same time, under state law a bill also has to appear in writing for 30 days before it can be taken up by the Rules Committee. With the California state legislature having been on recess until August 1, ACA 16 therefore couldn’t even be considered by the Rules Committee until then. Furthermore, ACA sponsor Kiley is running for the U.S. House of Representatives and thus will not be in the California State Legislature in 2023 to re-introduce the bill. All of that points to ACA 16 not being heard.

According to Ethan Jones, Principal Consultant for the State Assembly Elections Committee “From the standpoint of policy committees that do typically hear legislation {at this time of year}, it would be extremely unusual for a committee to meet to hear a newly-introduced measure during the last month of the Legislative session. Policy committee hearings often happen during the last month of session, but those hearings typically are to consider previously-introduced bills that were substantially amended since being heard by a policy committee.”

But could it theoretically be heard under State Assembly rules, even if highly unusual? If the Rules Committee send it forward, the answer is ‘yes’. Do many Greens think ACA 16 should be heard? Given the GPCA’s 2021 request for hearings on top two — and given the gross negligence by the 2009 state legislature in putting top two on the ballot without any public hearings, the answer would be ‘yes’.

What are the politics here?

On one hand, there may be no compelling political reason for Democrats to make such an extraordinary procedural exception to normal practice to benefit a Republican who is leaving the state legislature, nor to go out of their way to call attention to a top two State Senate race where Democrats are benefiting from Republicans splitting the primary election vote. But more profoundly there is the question of ’to what end?’ for Democrats in questioning the top two system?  

Since 2012, when both top two elections and non-partisan citizens redistricting went into effect, California Democrats have won super majorities in both houses of the state legislature in four of the five statewide elections held since then — an unprecedented dominance for Democrats in the history of California, and only once achieved by Republicans, (who had super majorities in both houses the entire time between 1925 and 1934.)

Most attribute these recent Democratic super majorities not to the effects of top two, but to the fact that prior to non-partisan redistricting being introduced in California, legislative districts drawn by the state legislature were effectively a series of gerrymanders agreed to by both major parties, in order to give Democratic and Republican incumbents safe seats. Since the mid-1990s, this de facto bi-partisan gerrymander masked an ongoing decline of Republican support in California, while the Democratic share of the statewide vote increased. Once partisan-blind redistricting occurred for the state legislature and the U.S House of Representatives in 2012, this resulted in a sharp increase in Democratic-held seats.

If Democrats don’t owe their super majorities to top two, why should they fear rethinking it?

First, single-seat districts exaggerate majorities — in this case, giving California Democrats far more seats than they would win with their proportion of the general election vote — and a greatly disproportionately greater number of seats compared to their voter registration totals. Second, single-seat districts under top two elections produce false majorities by limiting voters to only two general election choices. Under top two, voters who would otherwise vote for general election candidates from one of California’s four minor parties (Green, Libertarian, American Independent or Peace and Freedom) if given the chance, instead now either vote less enthusiastically for candidates from one of the major parties — or don’t vote at all. In either case, this lack of general election choice for voters under top two distorts and overstates support for the two major party candidates who do appear on the ballot. 

Therefore, if California were to have an open public debate on alternatives to top two, this would shed light on this disproportionate share of seats held by Democrats, especially compared to what would occur under alternative electoral systems in place around the rest of the world.  If you are a Democrat and you dis-proportionally benefit from the status quo, why question it?

So is there an incentive for Democrats not to want to hear ACA 16? Requests for comment to the office of Assembly Rules Committee Chair Kevin Kooley (D-Rancho Cordova) have gone unanswered, on how he plans to handle the bill.

Alternatives to top two

California Greens have long supported a full range of parties on the general ballot that reflect the diversity of political viewpoints within the state — and an electoral system that allows them to win seats in proportion to their percentage of the popular vote. Officially the Green Party of California advocates repealing top two elections and replacing them with legislative elections by proportional representation, and with elections by ranked choice voting for single seat state executive office and the US Senate.

Most electoral democracies in the world already use some form of proportional representation – in most of Europe and Latin America, much of Africa, as well as in Indonesia, Australia, New Zealand, and Japan. And this is a growing trend. Most new democracies in recent decades have adopted proportional systems, including South Africa, Namibia, the former Portuguese colonies, and the overwhelming majority of post-Soviet nations in Eastern Europe and Central Asia.

If the California state legislature were to convene hearings on the state of California’s democracy, Greens (and many others) would argue ‘its time for California to catch up and join much of the rest of the world’ by enacting proportional representation elections.

Forcing this issue may be a new court challenge to top two, expected to be filed in 2023. That challenge will be based upon an a 2012 Ninth Circuit court ruling suggesting that top two primaries in Washington state were constitutional if they were held in August (which is when they were and still are held in Washington state); but would not be if the primaries were held as early as March — as they are planned to be in California in 2024, and likely not even as likely as June, as they were in California in 2022.

According to Richard Winger of Ballot Access News, “The Ninth Circuit, in a [2012] Washington state case, already ruled that forcing minor parties to run only in August instead of November is only a “slight” burden, because, the Ninth Circuit said, August is near the peak of voter interest. The Ninth Circuit said it would be a far different matter if minor party candidates for Congress and partisan state office were confined to running in March, which is far from November.”

Stay tuned for more on this case as it develops.

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Attachment #1: Extreme vote-splitting under top two

2012 US House District 31

Two Republicans split 50.5%, Four Democrats split 49.5%, two Republicans advance to General Election
https://elections.cdn.sos.ca.gov/sov/2012-primary/pdf/82-us-reps-formatted.pdf

Voter Registration: Democrats 40.8%, Republicans 35.34%
https://elections.cdn.sos.ca.gov/ror/ror-pages/15day-presprim-12/congressional1.pdf

2018 State Assembly District 76

Two Democrats split 51.3, four Republicans split 48.7, two Democrats advance to General Election
https://elections.cdn.sos.ca.gov/sov/2018-primary/sov/107-state-assemblymember.pdf

Voter Registration: Democrats 33.18%, Republicans 33.05%
https://elections.cdn.sos.ca.gov/ror/15day-stwddirprim-2018/assembly.pdf

2020 State Assembly 38

Five Democrats split 50.6%, two Republicans split 49.4%, two Republicans advance to General Election
https://elections.cdn.sos.ca.gov/sov/2020-primary/sov/148-state-assembly-formatted.pdf

Voter Registration: Democrats 36.27%, Republicans 33.65%
https://elections.cdn.sos.ca.gov/ror/15day-presprim-2020/assembly.pdf

2022 State Senate 4

Six Republicans split 59.2%, two Democrats split 40.8%, two Democrats advance to General Election
https://elections.cdn.sos.ca.gov/sov/2020-primary/sov/148-state-assembly-formatted.pdf

Voter Registration: Democrats 35.69%, Republicans 38.07%
https://elections.cdn.sos.ca.gov/ror/15day-primary-2022/senate.pdf


Attachment #2: The one time a minor party candidate finished in top two ahead of a major party candidate

2018 State Assembly District 70

Incumbent Democrat Patrick O’Donnell 59.6%, Democrat Elliot Gonzalez 13.4% and Green Rachel Bruhnke 10.1% together split 83.1% of the left-of-center vote. With no Republican in the race, Libertarian Honor ‘Mimi’ Robson received enough right-of-center support to finish with 16.9%, finishing second.
https://elections.cdn.sos.ca.gov/sov/2018-primary/sov/107-state-assemblymember.pdf.