Top Two Malfunctions, Democracy Suffers

Michael Feinstein
2018 Green candidate for Secretary of State; and former Santa Monica Mayor and City Councilmember

When the State Legislature placed Top Two elections on the June 2010 ballot, there were no prior public hearings on the topic. Instead Top Two was added as part of a last minute, middle-of-the night deal to obtain a needed Republican vote to pass a Democratic-led budget.

That means the very electoral system with which California chooses its state and federal representatives was not publicly vetted before being put into effect.

Quirks or Design Flaws?

Even if one wholeheartedly embraces the Top Two theory, as a matter of good government, one must also embrace that the public hearing process can improve legislation — and that it is the people’s right to review and comment on draft legislation. Yet no committee hearings were held on Top Two, a major constitutional amendment.

As a result, Top Two’s failings are being exposed now in real time. Yet many politicians and pundits act as if these are ‘side effects’ to be managed, rather than a clarion call for repeal.

Too Manycandidates?

One of Top Two’s most pernicious defects is that there can be ‘too many’ candidates from a given political party or tendency, causing ‘vote-splitting’ and random results in the primary election, leading to unrepresentative results in the general.

Most notorious was Congressional District 31 in 2012, where a majority Democratic, majority-minority district in Los Angeles County advanced only two white, conservative Republicans to the general election, after the vote for the four Democrat primary election candidates was split ‘too evenly’ among them. This led to the two Republicans finishing first and second, even though collectively the four Democrats had more total votes.

This year, the Los Angeles Times cites four Congressional races where the Democrats may again have ‘too many’ candidates, and as a result there may be no Democrats on the November ballot, even though Democrats hold a plurality/majority of voter support in each district (“California’s free-for-all primary election rules could surprise everyone in 2018 … again”).

This ‘quirk’ of the Top Two system could literally determine control of the House in 2018-2020 and alter our nation’s history.

Prior to Top Two, ’vote-splitting’ in general elections already called out for reform — where for example, multiple ‘left-of-center’ candidates could split a majority of the vote and lead to the election of a ‘right-of-center’ candidate, or vice-versa, depending upon the race. Top Two artificially eliminated this dynamic by restricting voters to only two general election choices, leading to record low turnouts and false majorities. Perhaps more nefariously, Top Two transferred the deleterious vote-splitting to the primary, and to two seats instead of one.

Ranked Choice Voting

Ranked choice voting could eliminate this entire ‘vote-splitting’ issue. Under ranked choice voting, voters are empowered to rank their choices, lower rankings don’t undermine higher rankings, and similar minded voters can consolidate support, eliminating the ‘spoiler’ dynamic. Ranked choice voting is used for municipal elections in Alameda and San Francisco counties (and other cities across the U.S.) as well as to elect the national legislatures in Australia and Ireland. In 2018 it will be used for the first time for state and federal elections in the state of Maine.

Ranked choice voting could be used to select down to two candidates, as under Top Two, or down to four, as advocated by FairVote (a non-partisan electoral reform organization based in Maryland, with a branch in California), after which ranked choice voting would be used again in the general election to choose from among the ‘final four’.

But Californians never got to have this discussion. Top Two’s backers were in a rush for Top Two go into effect at the same time as the new districts drawn by the California Citizens Redistricting Commission, and got their political deal made in the middle of the night outside of public view. As a result, Top Two has introduced a troubling, unvetted randomness into our democracy.

Whither for Governor?

That randomness extends into this year’s Governors race. While it appears Gavin Newsom (D) will finish first in the primary, it is by no means clear who will finish second and advance with him to November.

Six candidates seem likely to garner most primary votes cast – Newsom, Travis Allen (R), John Chiang (D), John Cox (R), Delaine Eastin (D) and Antonio Villaraigosa (D) — but it is anyone’s guess how the vote will break down among them. Based upon polling over the last few months, California could end up with two very different general election choices – Democrat vs. Democrat, or Republican vs. Democrat – that rather than being reflective of the overall electorate, are simply based upon a potential narrow difference in votes between 2nd and 4th place, resulting from ‘vote-splitting’ between 1st and 6th.

This randomness may not only affect the Governors race. If Republicans don’t have a Gubernatorial candidate on the November ballot to incentivize Republican turnout, that could cost them closely contested Congressional races — again potentially affecting the fate of our nation.

Record Disqualified Voter Ballots

Complicating this further is that in races with many candidates, Top Two has led to record levels of disqualified votes, because of confusion resulting from Top Two primary election ballots. Before Top Two — when every ballot-qualified party had its own partisan primary, it was easy to fit all of a party’s primary election candidates on a single page.

Now under Top Two’s jungle primary, all candidates from all parties (and independents) are on a single ballot – and in many counties these names are spread over two or three pages. Because most voters are accustomed to voting on each page, this can lead some to vote for more than one candidate in such races, which disqualifies their vote.

According to the Los Angeles Times, in the 2016 U.S. Senate race with 34 candidates on the ballot, there were almost 250,000 disqualified voter ballots (“Tens of thousands of votes are in danger of not being counted in California’s biggest races this June”).

While the margin that year between second and third place was over 800,000 votes, it is easy to imagine 250,000 disqualified votes deciding second place in a closer election.

In the 2014 Controller’s race, when there were only six candidates (and far fewer spoiled ballots), out of over four million votes cast, only 28,000 votes separated Betty Yee (D) in 2nd place from David Evans (R) in 4th, and only 481 between Yee and 3rd place finisher John A. Pérez (D). In the General Election, Yee was elected 54% to 46% over Republican Ashley Swearingen, who finished first in the primary. But with enough spoiled ballots, Yee may never have even advanced beyond June.

This year, there will be 27 candidates on the primary ballot for Governor. Could spoiled Top Two ballots decide second place in the primary – and possibly even the general election winner in 2018?

Top Two Breakdown

Top Two was sold to California voters as providing more choice, when in reality it begins to break down when there is more choice.

And that doesn’t even include Top Two’s especially negative effect upon the state’s ballot qualified minor parties (Green, Libertarian, Peace & Freedom, American Independent).

This irony is even more pronounced in 2018, when record numbers of women and others from traditionally underrepresented groups are running for office, including those inspired by social movements like #MeToo #NeverAgain #OurRevolution and others.

Instead of welcoming these newcomers with a seat at the table of our democracy, California’s Top Two winner-take-all system tells them they must compete with many others who don’t share their views for a single seat from their district.

The problem with so many failed attempts at electoral reform in California is that the engine our democracy is the single-seat, winner-take-all electoral system – and that is what needs changing. Top Two was an attempt to ‘fix’ that system while keeping it in place, and in several ways has only made things worse.

Proportional Representation for California

The most direct way for traditionally underrepresented groups to receive representation in proportion to their numbers – and for this to be true for all voters – is to implement an electoral system designed for that – elections by proportional representation, originating from elections from multi-seat, multi-winner districts. Under proportional representation, if a party wins a given percent of the vote, they win that percent of the seats

Most of the established democracies that the U.S. is compared with successfully use proportional representation. Under such systems, almost all voters are able to cast a vote to elect someone who represents their views, and practically all political viewpoints get a seat at the table of our democracy – unlike our system in California today.

California is so advanced in so many other ways, that it is remarkable that it hasn’t already abandoned its regressive single-seat, winner-take-all electoral system. Perhaps this year, Top Two’s inherent failings will be enough to change that.

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