The ‘First, DO Harm’ Act – CA Prop 14

By Solomon Kleinsmith | Related entries in Bad Decisions, California, Dumb Things Said By Smart People, Independents, Partisan Nonsense, Politics

I wont be nearly the first person to be writing about California’s Proposition 14. I’m coming late into the game, having only listened to the vague positive talking points of the California Independent Voter Network (CAIVN), and their allies, who have talked this proposition up. But I began to see some dissent, and took at a look at it myself. To be blunt, if this passes, partly because of support from CAIVN and their allies, I will genuinely be embarrassed to affiliate myself with these organizations that I hold in very high regard for their work fighting for the rights of independents.

Like so many other laws that make it through corrupt, and usually quite partisan, legislatures or ballot initiatives, this law violates the first rule that an ethical lawmaker or political organization ought to look at when drafting a bill or proposition; ‘first do no harm’.

Independents are doing two things that are inexcusable by supporting this proposition. They are supporting a change in the electoral system, only allowing the top two vote getters to make it through to the general election, that has flatly been shown to not accomplish the stated goals of lessening partisanship in the other states and areas that have, or have had, such rules in place.

I am personally quite familiar with these kinds of rules. In my home state of Nebraska, I considered running for state senate, as an independent, myself. This rule was not the only reason I decided not to do so, but looking at a short primary season where I would have had to overcome a huge money, organizational and manpower deficit… it certainly was one of the straws that broke the camel’s back. Had I had the entire campaign season to catch up, my decision could have been different.

In other words… we’re hurting our own chances, in trade for a rule that has no history of lowering partisanship, and actually has a track record of lowering the rate of incumbent turnover.

The second mistake is even more insidious, and the reason why I dub this bill the ‘First DO Harm’ Act. The first could be explained away as being duped, misinformed or (at best) perhaps blindly grasping for straws on a gamble. No… this is wholly deliberate. This is taking a page from the two party duopoly playbook. Its inexcusable and so hypocritical I cringe to think about how it might effect the future of independent movement types should this pass in California.

Independents have been the whipping boy of the political process for the dozen or so years that I’ve been really paying attention to politics. Its terribly hard to have an effect on primary elections, the hurdles to running for office as an independent are disturbingly high in most places and candidates from the two major parties pay attention to us only when races get close.

If there is any group of people that we have some common cause with on electoral reform, its third party organizations. Now, I think that both major parties are far too partisan, and I recognize that organizations like the Green Party and Libertarian Party are even more ideologically extreme in most cases. But my ideological differences with them don’t go so far as to impinge upon my higher conscientious support for basic democratic ideals, and fundamental fairness.

Richard Winger, over at Ballot Access News, hits the nail on the head in his op-ed in the San Francisco Bay Guardian:

“…since minor party candidates almost never place first or second in the June primary, minor party members would never be able to run for statewide office in November. And, the catch is that only the November vote counts for meeting the 2 percent vote test.

and…

“The real irony is that the big newspapers of California know about this problem with Prop. 14 but refuse to mention it. That’s ironic because back in 1981, when Democrats in the Legislature wanted to toughen the ballot-access requirements, the big newspapers of California denounced that bill with full fury. Forty of California’s biggest newspapers, TV stations, and radio stations editorialized against that measure.

lastly…

“Prop. 14 is supported by the Chamber of Commerce, the for-profit health insurance companies, the for-profit hospitals, and various multimillionaires, and the Yes on 14 campaign has a huge war chest. Why won’t the L.A. Times even mention this flaw in the measure? Who are the big dailies afraid of offending?”

And who are these independent organizations afraid of offending… or perhaps who are they pandering to?

This proposition flat out screws the minor parties. This glaring selfishness is made embarrassingly worse by the fact that several independent supporters I have communicated with, or read explanations of their reasoning for support, of the proposition have actually touted this as a way of further marginalizing these minor parties. This rings of a bully at school taking his anger out on even smaller kids because his bigger brothers have been beating on him for years. In fact, this is precisely what this is.

I’m not going to split hairs on this issue. Independents that support this bill should be ashamed of themselves.


This entry was posted on Sunday, June 6th, 2010 and is filed under Bad Decisions, California, Dumb Things Said By Smart People, Independents, Partisan Nonsense, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

17 Responses to “The ‘First, DO Harm’ Act – CA Prop 14”

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  2. Simon Says:

    I’m not worried by the supposed “exclusion” of minor parties and independents per se, but even stipulating all of Solomon’s premises for sake of argument, there’s another fundamental defect in this kind of quasi-”delayed runoff” system. What happens if one of the top two is a lunatic? This is not a hypothetical possibility; it happened in France less than a decade ago (Chirac v. le Pen), and it happened in Louisiana less than twenty years ago (Edwards v. Duke). In that situation, voter choice and the representativeness of the government (and to the extent it depends on the former, its legitimacy) are diminished, and any mandate the winner can claim is vitiated.

    As I’ve said in these pages before, the optimal solution is a closed primary and an open general election. Proposition 14 manages to create the worst of all worlds, the diametric opposite: a primary so open that it is barely a primary at all, followed (months later!) by a closed general election. Truth be told, I suspect that CDP v. Jones ultimately dooms section three of Proposition 14. Nevertheless, sensible people everywhere should oppose it. (Their dearth in California doesn’t bode well, alas.) Since there is nothing fundamentally wrong with the existing system, this is a pointless exercise, which would be objectionable enough, but worse yet, it is defective even assuming all the premises most favorable to it, as Solomon’s post explains.

  3. Lee Thomas Says:

    At the close of registration for the May 2009 special election, 17.2 million of the 23.4 million eligible voters in the state were registered to vote: 45% as Democrats, 31% as Republicans, 20% as independents, and 4% with other parties. The number of registered voters in the state has grown by one million since June 2008. The number of registered Democrats has grown from 7.1 to 7.6 million, the number of independents from 3.1 to 3.4 million, and the number of Republicans from 5.2 to 5.3 million.

    Further analysis shows that a vast majority of Independents vote democratic.

    Im puzzled. Someone please explain to me why anyone would want a system of one party rule. That is almost the case now in California a very democratic state. This proposition would legislate in my mind a single party rule and I find that unacceptable to both the GOP and independents, libertarians and Green parties as well as socialist, communists and fascists.

  4. Lee Thomas Says:

    “”"At the close of registration for the May 2009 special election, 17.2 million of the 23.4 million eligible voters in the state were registered to vote: 45% as Democrats, 31% as Republicans, 20% as independents, and 4% with other parties. The number of registered voters in the state has grown by one million since June 2008. The number of registered Democrats has grown from 7.1 to 7.6 million, the number of independents from 3.1 to 3.4 million, and the number of Republicans from 5.2 to 5.3 million.”"”

    Further research done shows that a large majority of Independents vote overwhelmingly for Democrats. I am not sure what the people in California are thinking as they vote in Single Party Rule in California.

    But lets be honest. Most people don’t understand California. Its as if they are a country of their own.

  5. Nick Benjamin Says:

    @Solomon
    Imagine that you had entered your race in NE and managed to come in second. If that happened you’d be on the ballot in the second round, and you’d be the sole alternative to the front-runner. You’d suddenly be a viable candidate.

    Under current California law guys like you have to convince people they can come in first. Otherwise they aren’t considered “viable candidates,” and nobody cares that they exist. Under NE rules all you have to do is prove you can come in second. That’s a lot easier then first.

    This also makes defections to third parties a lot more attractive for sitting candidates. A switch to Green under current CA rules is political suicide. Under the new ones it might be smart, if your voters already like you.

    Personally I support this proposal. It’s not like the current system has made Cali a mecca for good-governance types, and it would be useful to know whether systems like this work on a scale as big as CA.

    @Lee
    Long ago I swore that, whenever someone condemned Cali for being weird, I would respond with a state I think is even weirder: Texas.

  6. Solomon Kleinsmith Says:

    @Nick
    “Imagine that you had entered your race in NE and managed to come in second. If that happened you’d be on the ballot in the second round, and you’d be the sole alternative to the front-runner. You’d suddenly be a viable candidate.”

    This isn’t the point. Just because this might have favored me if I played it the right way, doesn’t mean that Republicans, Libertarians and Greens shouldn’t be free to put a candidate up too, or that anyone who wants to run as an independent shouldn’t be able to. Like I said before… its no different from the things we’ve been decrying others for doing to us (independents) for decades… turning around and doing it to the third parties, because it MIGHT help us… is hypocritical, at best.

    Under non-top two rules, all I’d have to do is run, and I’d get the whole campaign to work to catch up. This is a hell of a lot better of a deal than only having a couple to a few months to catch up to campaigns with much better institutional support from their party machines.

  7. Lee Thomas Says:

    Nick

    I never said California is wierd. I said that people dont understand California.

    I do understand why California wants this proposition. It would effectively eliminate all competition to the liberal democratic machine in the state.

    Good for Democrats, liberals and Progressives. Bad for everyone else. And yes I am sure that the GOP would be dancing in the streets if they had 45 percent registered voters and most of the 20 percent of Independents voted for their Party as well.

    But this proposition would make valid sense if the independents were actually independent. But studies by voter groups have found that most independents vote heavily in favor of Democrats which to me is a nail in the coffin of any political diversity for this state.

  8. Simon Says:

    Lee said…

    I do understand why California wants this proposition. It would effectively eliminate all competition to the liberal democratic machine in the state. Good for Democrats, liberals and Progressives.

    As you point out, many soi-disant “independents” seem to be Democrats in denial. Still, I wouldn’t agree that there would be a valid case for this proposition even if there was a vast corpus of genuine independents out there. Quite aside from its unfortunate effects on the mechanics of elections, its suffers a fundamental flaw: the failure to recognize that selection of a party’s nominee is a matter for that party. If you want to play the game, you have to get on the field. That is why Citizens United v. FEC allowed disclosure statements and it is why (for better or worse), the plaintiffs in Doe v. Reed are very likely to lose. If you want a say in who the Democrats nominate, join the Democratic party. Otherwise, exercise a right that you do have: to vote in the general (i.e. actual) election.

  9. Solomon Kleinsmith Says:

    This argument that independents who vote for Democrats really are democrats ‘in denial’, is garbage.

    Who else would left leaning independents vote for, given the option between a liberal candidate and a conservative candidate? That doesn’t mean they’re closet Democrats, it means they choose the candidate that they like the most out of those they see available to them. Give them a moderate independent option, that is organized and has a well run campaign, and we’ll see if they’re actually closet Democrats, or are just waiting for something better.

    Until that happens, we’ll never know if they’re closet Dems or not. Its all conjecture and/or wishful thinking. All that on top of those who don’t vote at all because they can’t even bring themselves to vote for the lesser evils available to them, or who don’t even participate at all, for the same reasons.

  10. Solomon Kleinsmith Says:

    “If you want a say in who the Democrats nominate, join the Democratic party. Otherwise, exercise a right that you do have: to vote in the general (i.e. actual) election.”

    I’d actually agree with you… IF… the parties didn’t use public money to run primary elections. This opens them up (in my opinion) to anti-discrimination laws that should bar them from keeping any legal voter from taking part. If they want to have a privately funded primary or caucus, that is their prerogative. But if they want the government to fund their primary, they don’t have any place to be barring any legal voters from exercising their voting rights.

  11. Nick Benjamin Says:

    This isn’t the point. Just because this might have favored me if I played it the right way, doesn’t mean that Republicans, Libertarians and Greens shouldn’t be free to put a candidate up too, or that anyone who wants to run as an independent shouldn’t be able to. Like I said before… its no different from the things we’ve been decrying others for doing to us (independents) for decades… turning around and doing it to the third parties, because it MIGHT help us… is hypocritical, at best.

    They were free to put a candidate up. And like you they benefited from the fact that they only had to prove themselves able to get into the top 2 to be considered viable candidates.

    I also think you are mistaking the formal campaigning period for the time actually required to run for office. Lots of countries with third parties have extremely short campaign periods. In Canada formal campaigning is about a month, but new Parties enter Parliament once every few decades, and the current ruling party is the result of a merger between one of those new parties and an extremely old one.

    In your case nothing was stopping you from preparing for the campaign six months before the primary. You can’t get a lot of earned media that early, especially for a state legislative race, and 90% of your voters won’t notice you; but you can do things like search for volunteers, decide how many votes you need, figure out where they are in the district, fund-raise, write slogans, talk to opinion leaders, etc.

    A major reason third party movements fail in the US is they don’t bother doing that stuff, and/or they really suck at it. They think their incorporation papers give them a right to be considered serious, when in fact all those papers give them is a line on the ballot. Green complaining about this proposal is a great example. There are dozens of safe Democratic seats in the state legislature. If the Greens actually worked smartly under this system they could come in second in a half-dozen of those or more. They’d almost certainly come in first somewhere in CA if the choice was Green or Democrat, and they’d have to opportunity to target their resources a lot more effectively if they only had a few races to worry about.

    In other words if the Cali. Greens have any political brains at all they will get at least one seat in the State Legislature under this system. But they apparently prefer having as Gubernatorial candidate who can get some self-righteous quotes in the media every November, to actually winning.

  12. Solomon Kleinsmith Says:

    “I also think you are mistaking the formal campaigning period for the time actually required to run for office.”

    The time frame issue is something I’m quite aware of. I’m aware that people phase out campaigning until a certain amount of time before elections, especially primaries, and often get pissed if you start campaigning right after the last election started. You’d know this if you’ve done a bunch of door knocking.

    I DID all the things you suggest, and a lot more, more than 6 months out. Then I went to the kickoff party of the opposition in the winter, saw the mountain of money and machine I was up against… did the math and saw I didn’t have the time to make up the difference. I’m passionate about this stuff, but I’m not going to waste my time with a token or protest campaign.

    “Lots of countries with third parties have extremely short campaign periods.”

    Most other countries don’t have near the institutional barriers that are in the U.S., leaving most countries to have much more party diversity, even if there still are two major parties.

    Regardless, this is a side issue.

    You don’t seem to be listening to me… you’re listing reasons that have nothing to do with the issues I’ve brought up. It is distinctly possible that the Green Party & Libertarian Party wont even be a legally recognized in California in two years, because of the changes this proposition makes. Devil’s in the details… and he’s running amok in this one.

    Ralph Nader and the head of the Libertarian Party in California outline these problems in recent blogs better than I could… and you’ve gotta be kidding me if you think they’re as viable as you apparently think they are. They don’t win elections because they’re fringe parties, with not enough support almost anywhere, to even pose more than token opposition. This fact doesn’t change that they have the right to run a candidate in the general election.

    This law is crafted to specifically make it less likely that these fringe groups will cut into their support. Essentially micro versions of Nader handing the ’00 election to Bush, and Perot handing the ’92 election to Clinton. Any benefits that moderates might gain from these rule changes are just as likely to be cancelled out, or even overwhelmed, by the activists from these minor parties shifting to the two major parties and making them *even more* ideologically extreme.

  13. Nick Benjamin Says:

    I DID all the things you suggest, and a lot more, more than 6 months out. Then I went to the kickoff party of the opposition in the winter, saw the mountain of money and machine I was up against… did the math and saw I didn’t have the time to make up the difference. I’m passionate about this stuff, but I’m not going to waste my time with a token or protest campaign.

    Nobody enters their first race with good odds of victory. Believe me, even those of us who are in political parties have to fight for the nomination.

    But my point is that you could have made it to second a lot easier then first. And if you make it to second all of a sudden the other major party supports you by default.

    That’s all I’m saying. Independent, non-partisan, groups are supporting this measure because they know it’s easier for an independant to come in second then first. And that once he’s come in second he’s got a much better shot at victory.

    and you’ve gotta be kidding me if you think they’re as viable as you apparently think they are. They don’t win elections because they’re fringe parties, with not enough support almost anywhere, to even pose more than token opposition. This fact doesn’t change that they have the right to run a candidate in the general election

    In a democracy there is no such thing as a “right” to appear on the General Election ballot. In the US most states automatically allow small parties a ballot line in the general, but that’s not because all parties have a moral right to that ballot line. It’s because of our unique history. Other countries, with different histories, have systems very similar to the one proposed for California. Still others use more sophisticated (and allegedly more fair) systems that are, in essence, more sophisticated versions of the system CA proposes.

    As for the token opposition thing, I must point out that every party, in the history of the world, that has ever been successful, started as the token opposition somewhere. Idea, token opposition, real opposition, government. If you’re lucky and smart you can a stage or two. But if you aren’t you gotta take what you can. Right now the Greens can be the token opposition in college towns and the inner city (the Greens could actually do quite well in the black community if they bothered trying), which is a lot better then their current status.

    As for the party threshold thing, who cares? Official party status does not translate into political relevance. Let’s say the Greens are token opposition in a half-dozen house districts. Let’s further say that means that each of their candidates has a 20% shot at victory. They have a three in four shot at winning at least one seat of those six.

    And a party with an “independent” member of the Legislature and no ballot line is a helluva lot more important then a party with no seats and “official” status.

  14. Simon Says:

    # Solomon Kleinsmith Says:

    “If you want a say in who the Democrats nominate, join the Democratic party. Otherwise, exercise a right that you do have: to vote in the general (i.e. actual) election.”

    I’d actually agree with you… IF… the parties didn’t use public money to run primary elections. This opens them up (in my opinion) to anti-discrimination laws that should bar them from keeping any legal voter from taking part. If they want to have a privately funded primary or caucus, that is their prerogative. But if they want the government to fund their primary, they don’t have any place to be barring any legal voters from exercising their voting rights.

    My response is basically my response to a similar point that KK makes in these arguments (here, for instance). It’s by no means a forelorn position to argue that if primaries are to be closed affairs, the state shouldn’t pay for them at all. But the benefits reaped by society from a stable two-party system are significant, and they outweigh the trivial cost of running an election. That these public goods are positive externalities rather than the direct intent of the party in selecting its nominee is really beside the point; what matters is that the system is pareto efficient. Accordingly, states should supply the framework for primaries, not because it benefits the parties, but because a strong two-party system benefits the commonweal.

    It does not follow, however, that if states provide a primary framework they therefore can, must, or should attach strings such as a demand for open access.

    Your position is fatally undermined by the untenable but necessarily antecedent assumption that the public at large have voting rights in a party primary—rights which the state abridges by holding closed primaries. Only by positing the existence of a right to vote in a primary can you conceptualize a closed primary as “barring” voters “from exercising their voting rights” and as “discriminating” against them. But it isn’t discrimination to deny you something to which you aren’t entitled. At the heart of the analysis is an unwarranted overgeneralization from the right to vote.

    Even though the Supreme Court has spoken broadly of a constitutional “right to vote,” those cases must be understood in the limited context in which they stand. To say that “State or federal efforts to abridge or deny the voting rights of citizens are subjected to the strictest constitutional scrutiny,” Kessler v. GCDMA, 158 F.3d 92 (2d Cir. 1998), begs the question of the scope of the right to vote. It extends to elected public offices. See generally Reynolds v. Sims, 377 U.S. 533, 554 (1964). It may, arguably, apply to what the British would call Quangos, at issue in Kessler, supra. But it does not apply to private organizations, and parties are private organizations.

    Grounding the right in section two of the Fourteenth Amendment is suggestive of its boundary: states are punished for constricting “the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, [and] the Executive and Judicial officers of a State.” (And even that is an outer marker, since there is no right to vote for Presidential electors, for instance, see Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam), and no obligation for states to subject judges to elections). To my mind, it is clear that the right to vote is at most a right to participate in general elections for the public officials of one’s own polity, cabined by districting, withdrawal of offices from the democratic process (e.g. there is no right-to-vote challenge against appointed judges), and other factors. Thus, it does not follow from a generalized right to vote for your public officials that you have a right to vote in any ballot (the resident’s association of the condo association next door, for example). We all agree on that. Nor does it follow from a generalized right to vote for your public officials, however, that you have a right to vote in every ballot organized by the state. A state is perfectly within its rights, for example, to take over all sub-state elections and require residence in County X in order to vote in elections to County X’s public offices. Even assuming that there is a natural right to vote for one’s public officials latent in the federal Constitution, a right to vote for another polity’s public officials does not follow thence, and so a resident of County Y does not have an inherent gain right of access to County X’s ballot simply because the state supplies the election.

    As there is no right to interfere in another county’s selection of officers, so a fortiori there is no right to interfere in a private organization’s selection of nominees. “Nominee” is not a public office, and so the people’s right to vote for public officers does not attach. There is no sound argument for the proposition that it does, and the only argument of any kind advanced for it is the tepid truism that a party’s nominee will be a candidate in the general election. Indeed they will, and at the election, the people will exercise their right to vote for which nominee will gain public office.

    Nor does it follow, to modify your point somewhat, that even allowing that they have no inherent right to vote in a primary election, citizens if a state gain a right of participation if the state chooses to supply a framework for a primary election—or any other kind of ballot—and the parties accept that offer. It might be pointed out that parties willingly (if unhappily) submit to this arrangement. The answer to this is much like Justice Kennedy’s answer, in Clinton v. New York, to the point that Congress voluntarily surrendered the line item veto to the President: that a “cession of power is voluntary does not make it innocuous.” 524 U.S. 417, 452 (1998) (Kennedy, J. concurring).

    To sum up: I reject the argument that states “don’t have any place to be barring any legal voters from exercising their voting rights,” not because it’s wrong in vacuo, but because it is inapposite. States do not abridge any natural or constitutional right by holding closed primaries because there are no such rights to participate in the governance of anything but one’s own polity. Nor are states obliged to create such a right and impose it on political parties, and come to think of it—since we know that parties have association rights on which states may not trespass, see California Democratic Party v. Jones, 530 U.S. 567 (2000)—one must wonder whether there isn’t an unconstitutional conditions problem if they do, cf. 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996).

  15. mw Says:

    “Quite aside from its unfortunate effects on the mechanics of elections, its suffers a fundamental flaw: the failure to recognize that selection of a party’s nominee is a matter for that party. “ – Simon

    I agree with this statement – I essentially think of political parties as private clubs, and they certainly have the right to pick their candidates anyway they want – from backroom cigar smoke filled rooms – to the arcane and undemocratic methods used by the Democrats to select their presidential candidates (unrepresentative caucuses, super delegates, etc.) Where you lose me, is the presumption that the two major parties deserve a privileged position in the general election, should always get their candidates offered in the general, and the state should pay for their primary election the way they want to run it. There is absolutely no reason why that should be the case. All you offer are unsupported assertions that “benefits reaped by society from a stable two-party system are significant” and “…because a strong two-party system benefits the commonwealth.”

    And we should accept this because… you say so? Who is to say that society would not benefit from an unstable three four or five party system? Why should we think there is something magical about a state mandated duopoly in political powers.

    Still, I think you may be right that this is effectively no primary at all, but I don’t have a problem with that. the Prop 14 “primary” is really a fair means to determine who gets the privileged positions in the general election. The “private party” selection process could still be done in any way the party wants to pick their candidate. But the candidate must earn their way to the general by being one of the two top vote getter. I like it. I’m sure there are unintended consequences, but it is worth a shot.

  16. Solomon Kleinsmith Says:

    Simon – I don’t think people have a right to vote in partisan primaries. If the parties want to have closed primaries, they can pay for them themselves. But just like a school who takes public funds cannot discriminate, if they wish to take government money, they shouldn’t be able to discriminate either. This is an opinion. I don’t know how it pertains to related law, and don’t care. If thats not what the law says, thats what I THINK it should say.

    It will be interesting to see if either major party reverts to a caucus in response to this, or if that talk is just bluster.

  17. DVG Says:

    As an independent voter, I like this. It means any candidate who is popular and well-funded has a chance at winning. He might have to defect from his party to do it, though. I don’t see how this hurts small parties (like the Greens) at all. They still get their candidate on the ballot at the primary and, as was said, they only have to finish second. A shorter campaigning period can also be a help as well as a hindrance to both well-funded candidates with name recognition and less-well-funded candidates who are unknowns so I consider that a wash. In fact, I would say it’s a slight edge to the unknown and underfunded candidates as a long campaign unearths more skeletons and costs more money. I can see why the Democrats and Republicans don’t like this, but the small parties should be all in favor of it.

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