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Top Two Primaries: The Right to Write In in California

by Melanie Kiser // Published June 30, 2011

The “Top Two” primaries enacted by California voters in June 2010 as Proposition 14 has become a popular proposal among many centrists, election reformers, and anyone unhappy with the partisan primary systems in their own states or the two-party system in general.

But at best, the implementation in California has been significantly flawed. At worst, the system itself is not what it’s cracked up to be. Several concerns flagged by FairVote back in an August report on Prop. 14 are now being litigated, and other states contemplating a Top Two system should watch and learn.

One issue is the "ban" on counting write-in votes cast in the November general election between the top two, which due to conflicting laws still on the books threatens to deceive and disenfranchise California voters.

A write-in vote on this ballot would be thrown out, unbeknownst to the voter.
A write-in vote on this ballot would be thrown out, unbeknownst to the voter.

As a policy matter, write-in voting serves as a vital safety valve for those instances where unexpected or late-developing issues arise. For instance, when Rep. Tom DeLay resigned from Congress in summer 2006, it was too late to replace him on the Republican ticket, so a write-in candidate was the only option for the GOP. In 2010, Sen. Lisa Murkowski had a miraculous write-in win in Alaska. After losing to a more conservative Tea Party candidate in the GOP primary, she defied party leadership and in November was elected.

The policy problems by banning write-in votes are compounded by other facets of the Top Two system that make the longstanding role of write-in voting all the more important. Most notably, the June date of the "open" primary leaves five months for revelations, scandal, health problems, and gaffes (remember "macaca" in Virginia in 2006?) to take one or both of the top two candidates out of the running.

Granted, if a candidate agrees to formally withdraw from the race, the third-place June finisher gets promoted to the November ballot. But even then, the substitute candidate will have drawn the primary votes of an entirely separate segment of the population. It's quite possible that the substitute candidate would be of a different party.

In Washington state, this is remedied by allowing the recognized party whose endorsement the dropout candidate had accepted to nominate a replacement. When such vacancies occur in Nebraska, which uses a non-partisan variation of Top Two, they can be filled by candidates who file petitions by September 1 or by write-ins.

In Louisiana, the so-called "cajun primary," a non-partisan version of Top Two, takes place only a few weeks before the general election. Military and absentee voters use instant runoff voting in the primary, and those preferences are then applied to the general election.

Holding the primary and general close together seems the best solution because it would also address other issues with the five-month gap between elections that FairVote listed in its August 2010 report, including the effective silencing of third-party and independent candidates unable to reach to general eleciotn.

The simplest and most likely solution in California would come from the courts. The Democratic legislature has little interest in fixing the statute as it stands-- Prop. 14 would not have made it onto the ballot at all if not for a last-minute deal struck with a Republican legislator whose support was needed to reach the 3/4 majority required to pass the budget.

Legally, the ban on counting write-ins conflicts directly with existing state law and grossly misleads voters. The ongoing litigation, Chamness v. Bowen, involves both the right to write in and the right to run as a write-in candidate. The U.S. Supreme Court has held that states need not allow write-in voting at all, but California has long opted to promote and protect this tradition.

The California Constitution states that "A voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted."

The right to write in under the Elections Code is pretty straightforward. Section 15340 states that each voter is "entitled to write the name of any candidate for any public office...on the ballot of any election" and that such votes shall be counted if certain specifications are met. Section 13212 requires that blank spaces appear in each race on all ballots.

The hastily drafted implementing statute for Prop. 14, however, banned the counting of write-in votes. Section 8606 now states, "A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted."

The effect is essentially a trapdoor for voters. The general election ballot must include space for write-ins, and nothing on the ballot alerts voters that the blank space is a black hole. Californians' right to write in has become purely symbolic, but nobody told them that.

Plaintiffs in the federal suit, Chamness v. Bowen, are awaiting a ruling by U.S. District Court Judge Otis D. Wright on their motion for summary judgment. Last fall, state courts refused to grant an injunction against implementation of Prop. 14; plaintiffs had asked that it be enjoined until the write-in issue and a ballot label problem were fixed. Most court documents can be found here.