About Top Two

What is a Top Two Primary?

A top-two primary is an election in which party labels appear on the ballot, but parties do not nominate candidates. Instead, the candidates choose their own ballot label. All candidates run in the primary, but only the top two vote getters appear on the ballot in the November general election. No nation in the world outside the United States uses such a system. While other nations have two rounds of voting, the party label on the ballot always means the party nominated the candidate.

Constitutional Objections to Top Two Systems

  • The system violates Freedom of Association by using party labels but not giving parties any control over who uses their label.
  • By limiting the general election to only two candidates, voters who want to vote for someone else in the general election are disenfranchised. This voting rights argument is especially strong in the context of congressional elections. Since the 19th century, US federal law states that congressional elections are held in November. If states want to have a run-off to make sure the winner gets at least 50%, they may do that, but the run-off must be after November. The only states with congressional run-offs are Georgia and Louisiana. Also, California’s version of top two completely removed the write-in box from the ballot.

Dangers of Top Two Primary Systems

States with top two primary systems:

  • Limit voter choice
  • Protect incumbents
  • Stifle competition
  • Confuse voters
  • Wipe out minor parties and independents
  • Suppress the open discussion of real issues facing the world today

Top two primary “systems” are spreading across the country, thanks to special interest and corporate benefactors. Louisiana, Washington and California already have systems in place. This is not a positive trend…it is the biggest threat to our electoral system ever. Top two systems do not result in more moderate candidates being elected, nor does it affect how the politicians behave.

History of the Top Two Primary

The top-two system was introduced by Governor Edwin Edwards of Louisiana, a conservative Democrat, who had been elected to his first term as Governor in 1972. Louisiana was a one-party state, with all the legislators Democrats throughout the previous 50 years, except that in 1972, three Republicans were elected to the legislature. Edwards invited the top-two system and had it passed through the legislature, because he thought it would prevent any more Republicans from winning. He thought they would fail to place first or second in the first round.

The top-two system at first only applied to state and local elections, and went into effect in 1975. In 1978, the legislature extended top-two to congressional elections. The first round was to be in September, and if anyone got at least 50%, that person was elected. Most Louisiana congressional elections were thus only one-round elections.

However, the U.S. Supreme Court ruled in 1997 that the Louisiana style of top-two elections for Congress violated federal law that told the states to hold congressional elections in November. So Louisiana adjusted its top-two system for Congress to say that the first round would be in November, and if no one got at least 50%, there would be a run-off in December between the top two vote getters. In 2006, the legislature decided it would restore normal partisan elections for Congress (but not state office) and ended top-two in congressional elections. In 2010, the legislature restored top-two elections for Congress, starting in 2012.

Washington & California
Washington State had used the blanket primary since 1934. In a blanket primary, each party has nominees, but the party does not have its own primary ballot. Instead, all candidates run on a single primary ballot, and the top vote getter from each party runs in November. This system did not restrict choices on the general election ballot, as each party was free to place one of its members on the general election ballot.

Some California voters noticed the blanket primary in Washington State and thought it would be a good system for California, so they circulated an initiative petition for a blanket primary and got it on the ballot in 1996. It passed. In 1997, four political parties in California sued to stop the blanket primary, on the grounds that it violated freedom of association for the state to force parties to let non-members help choose their nominees. The parties won in the U.S. Supreme Court in 2000, and California went back to its normal semi-closed primaries.

Because the U.S. Supreme Court had said blanket primaries violate the associational rights of political parties, three political parties in Washington State decided to sue to overturn the old blanket primary in Washington. They won the case, and Washington went to a classic open primary. A classic open primary is one in which each party has its own primary ballot and its own nominees, but any voter is free to choose any party’s primary ballot on primary election day.

The Grange, a very old organization in Washington State, didn’t like the open primary, and did an initiative to have a top-two primary, which, until then, had never been used anywhere in the world except in Louisiana. The voters passed the top-two primary in 2004. However, three political parties then sued to overturn the top-two primary, and they won in U.S. District Court in 2005 and in the 9th circuit in 2006. Those courts said the top-two primary violates freedom of association, just as the blanket primary did. But in March 2008, the U.S. Supreme Court said a top-two primary doesn’t necessarily violate freedom of association. The U.S. Supreme Court said it couldn’t tell if Washington State’s top-two violates freedom of association, until after it had been used. So the U.S. Supreme Court let Washington State try out the top-two system in 2008 and 2010. The U.S. Supreme Court said it was also not deciding if top-two violates voting rights, because the lower courts hadn’t decided that issue either. The U.S. Supreme Court sent the case back to the lower courts. The lower courts then upheld top-two, and the political parties have now asked the U.S. Supreme Court to rule that top-two violates both freedom of association, and voting rights. The U.S. Supreme Court will decide whether or not to take this case October 2012.

In 2009, the California legislature passed a bill to ask voters if they wish to amend the California constitution and have a top-two system. That bill only passed because State Senator Abel Maldonado said he would not vote for the budget unless the legislature passed the top-two bill. The budget couldn’t pass without his vote. The voters passed it in June 2010 with 53.73% of the vote. It was used during special elections in 2011, and for all elections for congress and state office in 2012.

In 2012, an initiative petition was circulated in Arizona to ask the voters if they wish to amend the Arizona Constitution to have a top-two system, and Arizona voters will decide on Proposition 121, the “Open” Government Act, in November 2012.

Variations of Top Two Systems

There are a few differences among the California, Washington State, and Arizona top-two systems.

California law forbids write-in votes in the general election, whereas Arizona and Washington State still allow write-ins November.

Partisan Labels on the Ballot
Both Washington State and Arizona’s proposals let a candidate choose any partisan label, as long as it isn’t too long and isn’t obscene. The Arizona proposal says the voter may register into any party and that party name will be put on the ballot. California law lets candidates put a party label on the ballot only if that party is a ballot-qualified party. Candidates registered into an unqualified party cannot have a party label on the ballot, and independent candidates cannot describe themselves on the ballot as “independent.” Instead they must have the words “no party preference.”

Pending California Lawsuit
A lawsuit is pending in California against the write-in restriction and the discriminatory ballot label feature of the law. However, in 2012, the legislature “solved” the write-in problem by simply removing write-in space from the November ballot, so at least voters won’t be fooled into casting a write-in vote that could never be counted.

StopTopTwo.org will continue to learn and continue to educate others about which election systems optimize political participation for their voters and their diverse population.