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New "Top Two" Election System Causes Problems For Smaller Political Parties

Nov 27, 2012

Credit Joe Moore / Valley Public Radio

Editor's note: This is the second in a two-part series on the impact of California's new top-two election reform.

When California voters approved Proposition 14 in 2010, supporters hailed it as a way to make many races for Congress, the Legislature and state offices more competitive, thanks to a new top-two election system.

But now, with the first full election cycle under the new process complete, some are worried that this effort at reform could also lead to the demise of some of the state's smaller political parties, even possibly stripping them of their eligibility to appear on future primary ballots. 

"This reform specifically hurts third parties," says Eric McGhee of the non-partisan Public Policy Institute of California. That's because the new system effectively makes it much harder to reach the thresholds needed to qualify for a political party for the ballot.

"The way that parties actually become qualified for the ballot in the first place, even to run in the primary, is based on their showing in previous elections," says McGhee.

And specifically previous general elections. The same  ones that under the reforms of Proposition 14, now only feature two candidates, the top-two vote-getters from the primary election. 

"The opportunity for minor parties to do that [make the general election ballot] in the new top-two scheme is much more limited," says Kim Alexander of the non-profit California Voter Foundation.

In fact, in the November, election just three candidates from the so-called minor parties, and five no-party preference candidates made it to the general election ballot. 

Part of the problem, according to Alexander involves the legislation that was needed to implement Prop 14, after it was approved by voters.

"Prop 14 was drafted pretty quickly. It's important to remember that it was a last minute bill that was put on the ballot in 2010, and it was not crafted that thoughtfully. And in fact, it required major cleanup legislation the following year to make it ready to actually be implemented," says Alexander. 

So exactly how does a political party qualify, or remain qualified for the ballot? And what about those changes made by the Legislature that supposedly hurt third parties? We asked Keith Smith, professor of political science at the University of the Pacific in Stockton. It turns out there's actually three ways for a political party to qualify.

"The first one is that a party has to get two percent of the vote in a statewide constitutional office. For example, governor, lieutenant governor, insurance commissioner, one of the party's nominees has to get two percent of the final vote. For the minor parties, that option is basically gone," says Smith.

That's important because as Smith says, "the four minor parties that are there all got at least two percent of the vote for insurance commissioner in 2010."

The numbers are based on the vote in last gubernatorial election, in this case, 2010. So after the next election for governor, which will take place in 2014, it's highly unlikely that the state's smaller parties will qualify in this manner.

"The second way that they can be qualified is if they register partisans totaling one percent of the gubernatorial vote in the last election," says Smith. "And in looking at the 15-day registration statistics, the American Independent, the Libertarian and the Green Party now have one percent of the gubernatorial vote registered as members of their party. The Peace and Freedom Party does not. The Peace and Freedom party is about about 50,000 people away from having one percent of the gubernatorial vote in 2010."

That means if all else stays the same, after the 2014 election, according to Smith, "candidates won't be able to affiliate with the Peace and Freedom Party anymore because they won't be qualified." And if the other parties fail to maintain their voter registration numbers, they could fall off the ballot as well. 

This provision also hurts third parties because in many cases, a lot of people, who in the past voted for a third party candidate in the general election, were actually registered with another party. For example, a Democrat voting for a Green Party candidate, or a Republican voting for a Libertarian. 

"It's harder to get people to register in your party if you're never on the ballot," - Michael Feinstein, Green Party of California

And Michael Feinstein, spokesperson for the Green Party of California says the top two system makes the voter registration option even more difficult, because historically many voters tend to stay home for the primary, and only come out in big numbers for the general election. 

"It's harder to get people to register in your party if you're never on the ballot," says Feinstein.

That leaves parties one last option to make it on the ballot, a very expensive one, petitions. 

"The third way that you can be a qualified political party is if you gather petitions equaling ten percent of the gubernatorial vote," says Smith."And that's a higher threshold than getting a ballot initiative or a constitutional ballot initiative qualified. And this is how Americans Elect got on the ballot. They paid to have signature gatherers get ten percent of the registrant population to say 'yeah, we should have Americans Elect on the ballot.'"

So, the last option is very expensive, and the first option highly unlikely, leaving Libertarians and Greens only the voter registration option as a way of stay on the ballot and off the unqualified list, which is populated by such well known political voices as the California Pirate Party and the We Like Women Party. 

But the challenges for third parties don't stop there. The Legislature also raised the fees and requirements for candidates themselves to get on the ballot. Smith says that in the November election that made some candidates stay away, and choose not to run.

"Even small changes in filing fees or signature requirements can significant drive down the number of third party candidates," says Smith. 

Michael Feinstein of the Green Party says he thinks it's part of an effort by Democrats and Republicans to keep third parties off the ballot. 

"It used to be that we needed 60 signatures for a state assembly race in lieu of paying a filing fee. Now we need 1,500. We used to need 150 for governor, now we need 10,000. So on every level, this is designed to reduce voice and options for the California voter," says Feinstein.

The final major change as part of the top-two system removed one other option from the general election, write-in candidates. And that too doesn't go over well with Feinstein. 

"When you think back to the state of Alaska a couple of years ago, when Lisa Murkowsky, the Republican incumbent lost the primary to a Tea Party faction candidate, and then she ran in the general election as a write-in [candidate] in the general and was elected. We no longer have that option [in California] and instead the system just renders a false majority," says Feinstein. 

So what might the future hold for third parties in California and the new election reforms? Feinstein says he thinks that the courts will overturn Prop 14 and related laws for presenting what he calls "unconstitutionally high barriers to participation in the general election." And even supporters like Kim Alexander advocate making changes to reduce the effects  on California's smaller parties.

"I hope the legislature revisits the impact that the top-two primary system is having on minor parties in California. They are an important part of our electoral landscape," says Alexander. "There are a lot of Californians who feel that neither of the major parties represent their interests, and we don't want them to feel like there's no place for them to go. So we really need to have a system that enables third parties to have a presence in the California political process."