California’s unusual Top Two primary system is attracting attention because of the possibility it could thwart Democratic victories in districts that are key to the party’s chances of winning a majority in the U.S. House in 2018. The Top Two system, which is currently being considered in Florida, addresses some of the problems of primary elections but doesn’t go far enough to fix the problems of the primary system used in most other states.
The 2018 midterm is likely to be a heated referendum on Trump and his Republican allies. Already, several Republican members of Congress have announced their retirement. Seven of these open seats, two of which are in California, are considered “must win” districts if the Democrats hope to win a majority in the House.
Therein lies a problem. Under California’s Top Two rules, introduced in 2012, only the first two finishers are permitted on the general election ballot. They can be members of the same party--even if the opposing party collectively wins a majority of the vote.
This isn’t just a theoretical possibility. In 2012, two Republicans and four Democrats contested the open 31st congressional district. Although candidates favoring the Democrats received almost half the vote, the strongest among them, Pete Aguilar, finished third. As a result, the general election became a contest between two Republicans, even though more voters in the district were registered Democrats. In 2014, with three Republicans and four Democrats in the primary, the Democrats came very close to being shut out of the general election again. Aguilar finished second by only 209 votes, and later won the general election.
Too Many Candidates
The Republicans who currently hold California’s U.S. House Districts 39 and 49 are not seeking re-election; both districts favored Clinton by a significant margin over Trump in 2016. By one estimate, these districts are the 7th and 8th most likely to switch parties in 2018. In the 39th district, 17 candidates will be on the ballot in the June primary: six Democrats, seven Republicans, two American Independents, and two non-party candidates. In the 49th, there are 15 candidates: four Democrats, eight Republicans, one Libertarian, one Green, one Peace and Freedom, and one non-party candidate. In both of these open seat races it is possible that the party with the support of a majority of voters will not have a candidate on the November ballot.
In the 48th District, far-right Republican Dana Rohrabacher is seeking re-election in a district that narrowly favored Clinton in 2016. The primary ballot will include Rohrabacher and 15 challengers: eight Democrats, five other Republicans, one Libertarian, and one non-party candidate. The incumbent is likely to be one of the top two finishers, but the other candidate to make it to the November ballot could also be a Republican if Democratic voters splinter their votes.
Although Democratic Party officials encouraged some candidates to drop out prior to the March 9th filing deadline, there is no mechanism for a political party to prevent anyone from using its name. (In fact, there were five Democrats who had explored a candidacy for CA-39 but did not file papers.) Under Top Two, state and Federal campaigns are technically non-partisan, although candidates may choose a party “preference” that is indicated on the ballot.
Too many candidates is a problem that also affects Republicans. Under Top Two, California Republicans have more frequently been shut out of general election contests, including in high profile races, such as the 2016 race for U.S. Senator. This could happen again in California’s 2018 contests for Governor and U.S. Senator.
The problem of too many candidates has been evident also in Washington, the only other state that regularly uses Top Two. In 2016, Democratic candidates won 51.5% of the first round vote for State Treasurer, but these votes were divided among three candidates, and the Republican votes were divided over only two, so no Democrat advanced to the general election.
In Georgia, which uses Top Two for special elections, Democrats managed to flip a state senate seat late last year because Republicans were shut out of the general election, even though their five candidates together won a majority of the vote.
The California situation has drawn attention because the election of the “wrong” winner (a candidate without majority support) could affect the balance of power in Congress. But the problem of a candidate who might be the true favorite failing to make it to the second round can occur whenever the vote is splintered among many candidates, even if the splintering does not affect which party holds the seat. Some California examples:
- In the 2012 primary in the 8th Congressional District among six Republicans and two Democrats, three Republicans lead the tally. The top two together had less than 31% of the vote. Only 242 votes, 0.3%, separated the third and second place finishers.
- In 2014 Democrat John Perez came within 500 votes, out of 4 million cast, of second place finisher, Democrat Betty Yee, in the primary for Controller. Those 500 votes effectively decided who would hold the office. The Democrats swept all the statewide races that year: the 7 million voters in the general election were essentially irrelevant to the decision between Perez and Yee.
The Top Two system was instituted to fix real problems of primary elections. In most states, many voters are excluded by law from participating in primaries. For example, nine states have closed primaries where only registered members may participate; thirty states permit unaffiliated voters to vote in any primary but prevent voters registered in a party from voting in another party’s primary. In states with fully open primaries, voters can only choose one party per election. For voters who live in a safe district (that is to say, most voters), voting in the primary of the dominant party is the only way to have a meaningful impact. But by doing so voters give up the right to vote in the primary of any other party, even if that party is their first choice and has contested primaries for other offices.
Top Two solves the problem of eligibility by opening the primary to all registered voters equally.
In most states, only a plurality (more votes than anyone else) is required to win an election. Open seat elections can attract many candidates, in which case as little as 25% of the vote may be sufficient. Whoever emerges on top of the pile in a dominant party primary typically has an easy path to winning the seat, since many districts overwhelmingly favor one party. The plurality winner of a low-turnout primary election then typically has an even easier path to re-election in subsequent years due to incumbent advantage.
For example, in the 1998 Democratic Primary for Massachusetts’ 8th Congressional District, Michael Capuano had the most votes of ten candidates, but this was only 23% of votes cast. He coasted to an easy victory in the general election with 82% of the vote. Furthermore he was completely unopposed in the next nine primary and general elections, with the exception of 2006 when he held his hapless Republican opponent to 9%, and 2012 when the token Republican got 17%.
A handful of states have some mechanism to address the problem of plurality winners. Six southern states require a runoff if no candidate in a primary receives a majority of the vote, a relic of the days when the Democratic Party primary was the only meaningful election. Uniquely, Georgia holds run-off elections, if needed, following both primary and general elections.
Washington uses a Top Two system similar to California’s. In Louisiana, all candidates compete in the general election in November; if no one wins a majority, the top two finishers compete in a runoff a month later. In all other states, whoever has the most votes wins, even if a large majority picked other candidates.
Two-round systems (runoff or Top Two) mitigate but do not solve the plurality winner problem: when the vote is splintered among many candidates, it is possible that the top two finishers do not include the candidate who best represents the majority of the district. Put another way, the number of candidates in the election can still have a significant effect on the outcome.
In more than 100 years of holding primary elections, turnout in California has exceeded 50% only twice: in 1938 and 1952, and has not exceeded 40% since 1980. Turnout is highest in presidential years; particularly when the presidential primary is held early in the season. Although presidential primaries have historically been held in June, in 2000 the California primary was held in March, generating a turnout of 37%, the highest in 20 years. In 2008, the California presidential primary was moved to February and the turnout was 39.5%. In that year, for the first and only time, the state primary was held on a separate date, and the turnout was only 20%. Since 2010, all primaries have been held in June to reduce the cost of election administration.
Top Two has not solved the primary election turnout problem. In 2012, the first year it was used, turnout was only 22.5% of eligible voters, a new low for a presidential year, and turnout was a dismal 18% in 2014, a new low for a non-presidential year. (A contested Democratic Presidential primary caused turnout to rebound to 34% in 2016.)
Voter participation in California is much higher in the general election, exceeding 50% of those eligible in every presidential year since 1916. However, 1982 was the last time that general election turnout exceeded 50% in a non-presidential year. In 2014, the first and only time (to date) that Top Two was used in a non-presidential year, turnout in November reached a historic nadir of 31%.
The Move to March
California held February or March primaries in 1996, 2000, 2002, 2004, and 2008. A law enacted in September 2017 permanently moves both the presidential and state primaries to early March, concurrent with the other “Super Tuesday” states, starting in 2020.
While this change should boost turnout in presidential years, it could have the opposite effect in non-presidential years. Moreover, moving the primary date back three months will force potential candidates to begin their campaign about a year before the general election.
Law professor Derek T. Muller argues that this recent change in the election timetable will further protect incumbents because potential challengers will have to make a candidacy decision less than half way through the incumbent’s term. “If an incumbent sees no serious competitors,” he writes, “that incumbent may feel sufficiently insulated and politically unaccountable to act without regard to voters' preferences. The earlier the field is set, the more confident the incumbent can be, either at the filing deadline in December or after the primary in March.”
Muller points out that the move leaves the Top Two law vulnerable to a constitutional challenge: “In Anderson v. Celebrezze in 1983, the Supreme Court concluded that a March filing deadline for a November presidential election was too severe a burden, too stringent a ballot access requirement, to withstand constitutional scrutiny.” Beginning in 2020, potential candidates for all state and federal offices in California cannot attempt to qualify for the ballot later than December of the year prior to the election.
Improving Top Two
One potential fix to Top Two is to use Louisiana’s system, which moves the first round from June (soon to be March) to November, where the electorate will be largest. A second round is held in December, only for races where no candidate wins a majority. However, when a runoff is needed, there is still a turnout gap: 67% of Louisiana’s registered voters participated in November 2016, but only 29% voted in the runoff a month later. And Louisiana’s two-round system, like California's, doesn’t preclude the possibility that too many similar candidates in the first round will mean that the majority preference is shut out from the final round.
A much better solution is available. Ranked choice voting (RCV) eliminates the need for two elections, thereby increasing turnout and reducing cost. Further, it considers the wishes of the majority more reliably than a two-round system. Instead of automatically eliminating all candidates ranking in third position or lower, it eliminates candidates sequentially, starting with the lowest-ranked candidate, while allowing that candidate’s voters to progress to their next-preference candidate. With ranked choice voting, the outcome cannot be distorted by too many similar candidates.
Today there is a real threat that an abundance of good candidates will paradoxically sink the Democrats’ chances of gaining key California seats where they are favored by the majority of voters, thereby jeopardizing the party’s national prospects. Ranked choice voting would eliminate this predicament. Moreover, it would solve the turnout problem--which has only gotten worse in California since the introduction of Top Two. And in every state RCV would solve the problem of spoilers and plurality winners--while promoting higher turnout and lower administrative costs.
RCV is used in a dozen cities and will be used for the first time in state elections in Maine later this year, and is actively being promoted in California, Massachusetts, and elsewhere. States that are considering Top Two, such as Florida, should instead turn to RCV.
Paul Schimek is a research analyst for Voter Choice Massachusetts and blogs about improving American democracy at DefectiveDemocracy.com.
For a different take on this issue by John E. Palmer, click here.