California Adopts "Open Primaries": How Open Are They?

In theory, Californians voted in party primaries for statewide offices for the last time Tuesday. That's because they also took time to approve Proposition 14, which mandates "open primaries," or what are elsewhere called "nonpartisan elections." The California proposal was also known as "top two," based on its provision that the two most popular candidates as determined by the open primary, regardless of party affiliation, will move on to the general election. In other words, the final choice could come down to two Republicans or two Democrats, depending on the public mood, or the usual Bipolarchy selection of one from each major party.

In theory, an independent candidate could also make the final cut. But as critics have pointed out, by failing to change the rules for ballot access, Prop 14 may have made it insurmountably difficult for independents to get on the open-primary ballot. As in New York, ballot eligibility in California is determined by a party's performance in the gubernatorial election; you have an automatic spot next time if you get 2% of the popular vote in the general election. The rules for eligibility for the nonpartisan primary ballot apparently remain the same, even though party identification on the new ballot is purely optional. But if you can't get onto the primary ballot, how are you supposed to earn the requisite percentage in the general election to guarantee your spot next time? This analysis of the situation led independent parties to oppose the proposition, which seems to have been designed to empower centrists rather than radical alternatives.

All problems of ballot access boil down to the inherent problem of the official ballot. Once upon a time, the ballot was something you stuffed into a box. Parties printed their own ballots, and people could probably make up their own as well. Ballot access in such circumstances was not a problem, unless some ward heeler wouldn't let your friends vote. It became a problem when governments established official ballots. These were meant to list the choices available to voters, rather than a list of the individual voter's own choices, but the range of choices the ballot itself made available was inherently limited by space, and the write-in option was always poor compensation for that limitation. Official ballots inevitably defined the choices available in an exclusionary fashion, empowering officials to impose tests on new parties or independent individuals that have no constitutional sanction. The California case suggests that nonpartisanship of the kind enacted by Prop 14 is no threat to the American Bipolarchy so long as ballot access remains under state control. The only way to level the playing field effectively is to repossess it so that the government has no power to limit the people's choices. If California has taken no steps to do this, its first step toward nonpartisanship may prove worse than no step at all.