‘Top Two Primary’ Name is Deceptive – What is ‘Top Two’ is the General Election, not the Primary

Top Two elections in California are a combination of a primary election and a general election, combined in a form different than any other kind of election system. However the name of this elections system – i.e. the “Top Two Primary” – focuses only on the primary election and not also the general . This is deceptive, because it takes attention away from the how the general election is conducted, and how the primary election and the general election are interconnected.

Under Top Two elections, voters get only two choices on the general election ballot. Previously voters had several. This restriction of choice under Top Two is minimized to the public by only referring to the primary election in the name, even though the change in the general election change choices is radical.

To be accurate, the Top Two system should be called Top Two Elections, not Top Two Primaries.

Primary Elections under Top Two are not Open Primaries

According to the U.S. Supreme Court, as well as many prominent political scientists, “open primaries” are primary elections in which participation is open to all registered voters, but each party has a separate ballot, and voters are restricted to participating in a single party’s nominations. That is not what occurs under Top Two, because the Top Two law eliminated partisan primaries in the first place. Therefore Top Two is not an open primary.

What Top Two created was something different.  Top Two elections exists only in California and Washington.

The first time a top-two measure was on the ballot in California, in November 2004 (Proposition 62), a superior court in Sacramento ruled that it could not be described as an “open primary” on the ballot or in the voters pamphlet. (Vandermost v Shelley, 04cs01033).  No one appealed.

When Top Two was on the Washington ballot in 2004 as Initiative 872, Washington reporters couldn’t call the new top-two system an “open primary”, because when top-two started in Washington, it was replacing a classic open primary.  So a new term was needed. “Top-two” was a term coined by the Washington state press in an attempt to be neutral.   At the time this was considered fair to both sides, at least in Washington state.

General Elections under Top Two are not Run-Offs

A “runoff”, according to Webster’s 9th New Collegiate Dictionary, is “a final race, contest, or election to decide an earlier one that has not resulted in a decision.”

Run-off elections occur when no candidate gets a majority in the primary, and another election is necessary to pick a winner. Then a run-off occurs between the top two finishers in the primary.

But under Top Two, no one can be elected in the primary, even if they win a majority of the vote.  Even if there were only two candidates and one got 99% and the other got 1%, no one can be elected and both candidates would advance to the general election. Even if there was only one candidate who got 100% of the vote, that candidate would have to go back on the ballot again in the general election. So in no sense are general elections under Top Two run-offs.
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Appendix #1 Definition of Open Primaries*

“Voting at the Political Fault Line” is a collection of articles by political scientists about primary systems.  It was published in 2002 by the University of California Press, Berkeley.  The lead authors are Bruce Cain and Elisabeth Gerber.  The book defines types of primaries.

Page 211 has this definition of “open primary”:  one in which participation is open to all registered voters, but each party has a separate ballot, and voters are restricted to participating in a single party’s nominations.”

This definition is the same definition used in several U.S. Supreme Court decisions.  Justice Scalia defined it as “one in which any person, regardless of party affiliation, may vote for a party’s nominee, but his choice is limited to that party’s nominees for all offices.”  Cal. Dem. Party v Jones, 530 US 567 (2000).  Footnote 4 of the US Supreme Court decision Democratic Party of US v La Follette, 450 US 107 (1981), on p. 111, has the same definition.

Appendix #2 Definition of Run-off Elections*

In 1872 Congress passed a law that is still in effect, telling states they must hold congressional elections in November of even-numbered years.  States may have congressional run-offs if they wish, after November.  Only two states today have congressional general election runoffs, Louisiana (December) and Georgia (January of the following year).

Louisiana between 1978 and 1996 held congressional elections in September, with a runoff in November if no one got 50%, but in 1997 the US Supreme Court unanimously ruled in Foster v Love, 522 US 67, that Louisiana was breaking that old federal law.  So now Louisiana has no voting for congress at all until November, when everyone runs on the same ballot.  If no one gets 50% there is a runoff in December.

Because of that US Supreme Court decision, the California top-two law, passed in 2010, says that no matter what happens in June, all congressional and partisan state offices are always up for election in November.  No one is legally permitted to be elected in June.  Even if someone gets 100% of the vote in June, he or she is not elected and appears on the November ballot.

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