BILL ANALYSIS
SCA 4
Page 1
( Without Reference to File )
SENATE THIRD READING
SCA 4 (Ducheny)
As Amended February 19, 2009
2/3 vote
SENATE VOTE :Vote not relevant
SUMMARY : Proposes an amendment to the state constitution to
establish primary elections in which voters may vote for any
state or congressional candidate regardless of party
registration, with the two candidates receiving the most votes,
regardless of party affiliation, advancing to the general
election. Specifically, this constitutional amendment :
1)Requires that primary elections for state elective office and
for Congress be conducted in a manner such that every voter,
regardless of party affiliation, may vote for any candidate
for that office without regard to the political party of the
candidate, provided that the voter is otherwise eligible to
vote for that office.
2)Provides that the two candidates that receive the highest
number of votes at a primary election for state elective
office or for Congress, regardless of political affiliation,
will move on to the general election.
3)Allows any candidate for congressional or state elective
office, except a candidate for Superintendent of Public
Instruction, to choose to have his or her political party
preference, or lack of party preference, indicated on the
ballot, subject to procedures provided in state law.
4)Makes various conforming changes.
5)Makes various findings and declarations.
6)Requires the approval of the voters to take effect.
EXISTING LAW :
1)Provides for a modified closed primary election system that
permits voters not affiliated with a political party to
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participate in a political party's primary election if
authorized by that party's rules.
2)Provides that a political party that participated in a primary
election for a partisan office has the right to participate in
the general election for that office and shall not be denied
the ability to place on the general election ballot the
candidate who received, at the primary election, the highest
vote among that party's candidates.
FISCAL EFFECT : Unknown
COMMENTS : This measure proposes a constitutional amendment to
voters that would create a "top two" primary system in
California for elective state offices and for Congress. Under
the "top two" system, voters at the primary election receive a
ballot that lists all candidates for a given office. Voters are
free to vote for any candidate, regardless of the partisan
affiliation of the voter or of the candidate. The two
candidates who receive the largest number of votes in the
primary election move on to the general election-even if one
voter receives more than 50% of the vote in the primary
election. Because the determination of which candidates move on
to the general election is based solely on the number of votes
received by each candidate, it is possible that the two
candidates that appear on the general election ballot could be
members of the same political party. Variations of the "top
two" primary system are used in Washington and Louisiana.
California has previously conducting elections using an open
primary system, though one that differs from the system proposed
by this measure. Proposition 198, also known as the Open
Primary Act, was approved by the voters at the March 1996
statewide primary election with 59.5 percent of the vote. Under
the provisions of Proposition 198, all persons entitled to vote
in primary elections, including those not affiliated with a
political party, were permitted to vote for any candidate
regardless of the candidate's political party affiliation. The
candidate of each political party who received the most votes
became the nominee of that party at the general election.
Elections were conducted under the provisions of the Open
Primary Act for the June 1998 statewide primary election and the
March 2000 statewide primary election.
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In June 2000, the United States Supreme Court ruled in
California Democratic Party v. Jones (2000), 530 U.S. 567 that
Proposition 198 violated a political party's First Amendment
right of association, because the open primary system created by
Proposition 198 ensured that individuals who were not members of
a political party would be involved in choosing that party's
nominee who would appear on the general election ballot. In
response to the ruling, the Legislature enacted SB 28 (Peace),
Chapter 898, Statutes of 2000. SB 28 implemented a modified
closed primary election system that permits voters not
affiliated with a political party to participate in a political
party's primary election if authorized by that party's rules.
Elections have been conducted under the modified closed primary
election system created by SB 28 since March 2002.
In November 2004, an initiative that is similar to this measure
appeared on the statewide ballot. Proposition 62, also known as
the "Voter Choice Open Primary Act," would have provided for
primary elections where voters could vote for any candidate,
regardless of the partisan affiliation of the voter or
candidate, and the top two candidates, regardless of party
affiliation, would appear on the general election ballot.
Additionally, the Legislature put Proposition 60 on the ballot
at the same election. Proposition 60 guaranteed that any
political party that participated in a primary election for a
partisan office would have the right to place that party's
nominee on the general election ballot, thereby effectively
prohibiting a "top two" style primary. Proposition 62 failed by
a 46% - 54% margin, while Proposition 60 passed by a 68% - 32%
margin.
As mentioned above, the "top two" primary system proposed by
this measure is similar to a primary system that is used in
Washington state. Last year, in Washington State Grange v.
Washington State Republican Party et al. (2008), No. 06-713, the
United States Supreme Court upheld Washington's primary election
system against a challenge that it impermissibly burdened the
first amendment rights of political parties, similar to the
argument that resulted in the Supreme Court striking down
Proposition 198 in 2000. In upholding Washington's primary
election system, the court noted that because the primary
election did not serve to nominate candidates to represent the
political parties on the general election ballot, the political
parties' rights to freedom of association were not impermissibly
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burdened in the same manner as in the primary election system
created by Proposition 198. As such, although the Supreme Court
previously invalidated an open primary system that was used in
California, this measure is more likely to withstand a court
challenge.
As a constitutional amendment, this measure requires voter
approval to take effect.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
Keali'i Bright / BUDGET / (916) 319-2099
FN: 0000170