Proposition 14 was part of a State Senate compromise to pass a budget with tax increases in February 2009. Senator Abel Maldonado was the originator of this part of the budget compromise. This constitutional amendment passed in the legislature with just the number of votes needed to meet the 2/3 requirement in each house. It is on the June 2010 ballot, because constitutional amendments require majority approval by voters.

Prior Attempts at an Open Primary

In 1996 California’s voters passed Proposition 198, which established an open primary for federal and state elections that was similar in some respects to what is proposed by Proposition 14. However, one important difference under Proposition 198 was that the candidate with the most votes in each party advanced to the general election, rather than the top two vote-getters irrespective of party as is the case under Proposition 14. The U.S. Supreme Court struck down Proposition 198 in 2000, ruling that it infringed on the association rights of political parties by allowing people who were not party members to help select party nominees.

The 2000 court opinion [2] suggested the constitutional objection would not apply to an open primary system that did not select party nominees, such as a system where the top two vote getters in the primary would move on to the general election. An initiative proposing a top-two open primary was brought before California voters as Proposition 62 in 2004, along with a competing measure offered by the legislature, Proposition 60, that reaffirmed the existing partisan primary system. Prop 60 passed (yes-68%), and Prop 62 failed (no-54%).

In 2004, voters in Washington State adopted a “top-two voter getter” primary to replace a longstanding open primary system similar what had been proposed by Proposition 198. Washington’s new primary system was upheld in a 2008 decision [3] of the U.S. Supreme Court. Proposition 14 is very similar to Washington’s current primary system.

Potential Impact of Proposition 14

In a study of “Open Primaries [4]” published in February 2010, the Public Policy Institute of California reviewed the history of open primary voting in California under Proposition 198, as well as research conducted by other authors regarding open primary voting in other states. Overall, PPIC concluded that the Proposition 14 open primary “would probably have a noticeable but modest effect on voting and representation in California….Moderates might benefit, but only slightly more often than under the current system.”

Implementation of Proposition 14

The legislature has already passed SB6 [5] to implement various provisions of Proposition 14, provided it is approved by voters. This implementing legislation would almost certainly require significant technical and operational changes impacting voting systems, election management systems, ballot creation, poll worker training, and voter education. At best, such changes could result in substantial financial challenges and time limitation issues. In the worst case, it may be necessary for certain jurisdictions to purchase new voting systems, a process which is lengthy and expensive. For example, based on tests using actual 2006 primary data, the Los Angeles County Registrar-Recorder believes that it would be necessary for Los Angeles County to replace its existing voting system, the InkaVote vote recorder. It is not known if the legislature will reconsider any of the specific provisions of SB6 to minimize potential adverse impacts.

Potential Conflict with Proposition 15

There is potential conflict between Proposition 14 and certain provisions of Proposition 15, the Fair Elections Act, which would provide voluntary public financing of candidates for the office of California Secretary of State. Proposition 15 is written assuming the continuation of the existing electoral system for that office, including partisan primaries. If both measures pass, conflicting provisions of the two measures would have to be reconciled through additional legislation, judicial action, or a future ballot measure.

Lawsuit over Ballot Title & Summary

Opponents of Proposition 14 filed a legal challenge to the Secretary of State’s Ballot Label and Title & Summary, asserting that initial wording such as “greater voter participation” and “reform” was not neutral. The court amended this wording, as well as the Fiscal Impact written by the Legislative Analyst’s Office. However, the Third Circuit Court of Appeals reversed the lower court’s rewriting of the Fiscal Impact, and largely reversed the rewriting of the Ballot Label and Title & Summary, allowing a statement that the measure “encourages increased participation,” but deleting a statement that the measure “Reforms the primary election process.”