California Democratic Party v. Jones, CIV. S-96-2038 DFL.

• Decision Date: 17 November 1997
• Docket Number: No. CIV. S-96-2038 DFL.,CIV. S-96-2038 DFL.
• Citation: 984 F.Supp. 1288
• Court: U.S. District Court — Eastern District of California
• Parties: CALIFORNIA DEMOCRATIC PARTY, Art Torres, Kathy Bowler, Paul Jorjorian, Peace and Freedom Party, C.T. Weber, Libertarian Party of California and Gail Lightfoot, Plaintiffs, v. Bill JONES, Secretary of State of the State of California, Defendant. California Republican Party, Michael Schroeder, Shawn Steel and Donna Shalansky, Intervenors/Plaintiffs, Californians for an Open Primary, Intervenor/Defendant.

984 F.Supp. 1288

CALIFORNIA DEMOCRATIC PARTY, Art Torres, Kathy Bowler, Paul Jorjorian, Peace and Freedom Party, C.T. Weber, Libertarian Party of California and Gail Lightfoot, Plaintiffs, v. Bill JONES, Secretary of State of the State of California, Defendant.

California Republican Party, Michael Schroeder, Shawn Steel and Donna Shalansky, Intervenors/Plaintiffs,

Californians for an Open Primary, Intervenor/Defendant.

No. CIV. S-96-2038 DFL.

United States District Court, E.D. California.

November 17, 1997.

As Corrected November 24, 1997.

George Waters, Mary Beth Moylan, Olson Hagel Leidgh Waters and Fishburn, Sacramento, CA, for California Democratic Party, Art Torres, Kathy Bowler, Paul Jorjorian.

Cyrus J. Richards, Atty. General's Office of State of California, Sacramento, CA, for Bill Jones.

James P. Clark, Gibson, Dunn and Crutcher, Los Angeles, CA, for Californians for an Open Primary.

John E. Mueller, Nielsen Merksamer Parrinello Mueller and Naylor, Mill Valley, CA, for Michael Schroeder, Shawn Steel, Donna Shalansky, California Republican Party.

George Waters, Olson Hagel Leidigh Waters and Fishburn, L.L.P., Sacramento, CA, for Peace and Freedom Party, C.T. Weber, Libertarian Party of California, Gail Lightfoot.

MEMORANDUM OF OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEVI, District Judge.

In March of 1996, the people of the State of California, by a wide margin, adopted Proposition 198, an initiative statute known as the Open Primary Act. Proposition 198 converts the State's primary election from a closed to an open or blanket primary in which voters may vote for any candidate regardless of the candidate's or the voter's party affiliation. In a blanket primary under Proposition 198, one ballot will be prepared at the primary election for all voters just as in the general election. Because a blanket primary permits voters to vote in the primary election of a party without being registered in that party, the political parties and party officials who bring this action contend that Proposition 198 violates their right of association guaranteed by the First Amendment of the Constitution.

The court concludes that Proposition 198 withstands this constitutional challenge.

I.

Under Proposition 198 "All persons entitled to vote, including those not affiliated with any political party, shall have the right to vote ... at any election in which they are qualified to vote, for any candidate regardless of the candidate's political affiliation."¹ By this language and the conforming amendments to the State Election Code, Proposition 198 changed the California primary from a closed to an open or blanket system.² As the Legislative Analyst explained in the ballot pamphlet distributed to voters before the election, under the closed system "[i]n order to vote in primary elections for partisan offices, a voter must have identified a political party affiliation when registering to vote and can vote only for candidates of that party." Defs.' Ex. A at 5. Thus, for example, in the closed primary a registered Democratic Party voter receives a ballot that includes only candidates competing for the Democratic Party nomination. Only registered Democrats could vote for these candidates, and the winner of the primary would be the Democratic Party's candidate at the general election.³ By contrast, the Legislative Analyst explained, in the blanket primary instituted by Proposition 198:

[A]ll persons who are entitled to vote in primary elections, including those not affiliated with a political party [are allowed to] vote for any candidate regardless of the candidate's political party affiliation. Thus, voters in primary elections would be allowed to vote for candidates across political party lines. Furthermore, the initiative provides that county elections officials prepare only one ballot for all voters. The candidates for an office would be listed randomly on the ballot and not grouped by political party affiliation. The candidate of each political party who receives the most votes for a state elective office becomes the nominee of that party at the next general election.

Defs.' Ex. A at 5. Therefore, in the blanket primary after Proposition 198, a registered Democratic Party voter, for example, could vote for a Republican Party candidate for Governor and a Democratic Party candidate for Assembly, and so on down the ballot. An independent voter could do the same.⁴ Through such cross-over voting, it is possible under the blanket primary for independent voters and voters registered in one party to participate in the primary election of another party.

In the statement of support included in the ballot pamphlet, proponents of Proposition 198 argued that the closed primary "favors the election of party hard-liners, contributes to legislative gridlock, and stacks the deck against more moderate problem-solvers." The open primary would permit voters to vote "for the best candidate for each office, regardless of party affiliation" thereby giving voters greater choice. In addition, according to proponents, the blanket primary would increase voter participation in the primary election, restore healthy competition particularly in "safe" legislative districts in which one party clearly dominates, make elected officials more responsive to voters as opposed to party officials, reduce the power of special interest groups, and strengthen the political parties by assuring the nomination of candidates with broader bases of support. Opponents of Proposition 198 contended that it would work an unconstitutional interference with the right of the parties to choose their nominees: "Allowing members of one party a large voice in choosing another party's nominee—which Proposition 198 would do—is like letting UCLA's football team choose USC's head coach!"⁵ According to the opponents, the existing closed primary provided a "real choice" among candidates of different parties while a blanket primary would be "an invitation to political mischief" by special interests and political consultants. Defs.' Ex. A at 6-7.⁶

At the election, Proposition 198 was adopted by a convincing margin of those voting—59.51 percent (3,340,642 votes) to 40.49 percent (2,273,064 votes). According to reliable exit polls, Proposition 198 was supported by 61 percent of Democrats, 57 percent of Republicans, and 69 percent of Independents. The measure was supported by a majority of every demographic subgroup, including groupings by sex, age, race, education, political ideology, income, religion and party identification. Defs.' Exs. B & D. Proposition 198 commanded majorities in every county in California and in 75 of the 80 Assembly districts. Defs.' Ex. I. Although the turnout by California's six minor parties was too small to sample, given the broad public support for Proposition 198 among all groups of every sort, it is likely that a majority of the members of these parties also favored the initiative. R.T. at 847 (Testimony of Thomas Quinn). Moreover, the vote on Proposition 198 reflects the long-standing support for an open primary among California voters. According to Mervin Field, an eminent California political polling expert, Californians have favored an open primary by wide margins since at least 1983. See Defs.' Exs. L-2 & L-5.⁷

By passing Proposition 198, California joined a small group of states, consisting of Alaska, Louisiana, and Washington, who also have blanket or nonpartisan primary elections. The other states have either a closed or an open primary, or some variant of the closed or open primary.⁸ In the classic closed primary, such as California had prior to Proposition 198, participation in a party's primary election is limited to voters who have registered as members of that party a specified period of time prior to the primary election. Fifteen states have closed primaries of this kind. See Defs.' Ex. E, Gerber Report, at 2-4. Eight additional states have a "semi-closed" primary: participation in a party's primary is limited to those who have registered as party members and independents. Id. Participation of registered members of other parties is not permitted.

In an open primary, a registered voter may request, on election day, the ballot for any party's primary in which the voter intends to vote, whether or not the voter previously has registered as a member of that party; however, the voter may only vote in one party's primary election. Twenty-one states have an open primary in this sense of the term. Id.⁹ Finally, four states have blanket or nonpartisan primaries. The blanket primary is a version of the open primary in which the voter is not limited to the ballot of any single party. All voters receive the same ballot, and a voter is not limited to the candidates of any single party but may vote, as to each office contested, for any candidate regardless of party affiliation. This is the primary system in Washington and Alaska, and is the system adopted by Proposition 198. Alaska first adopted a blanket primary in 1947 and has had a blanket primary since that time with the exception of the period from 1960 to 1966 when it adopted a traditional open primary. Washington has had a blanket primary continuously since 1935. Finally, Louisiana has a version of a blanket primary, a nonpartisan primary open to all registered voters. Similar to the blanket primary in the sense that a voter can vote for any candidate without regard to party affiliation and is not limited to one party's nominees, the nonpartisan primary differs because "[t]he two top vote receivers, regardless of party, meet in a subsequent (runoff or general) election." Id. at 3.

"The relative merits of closed and open primaries have been the subject of substantial debate since the beginning of this century and no consensus has as yet emerged." Tashjian v. Republican Party of Conn., 479 U.S. 208, 222, 107 S.Ct. 544, 552, 93 L.Ed.2d 514 (1986). It is apparent from this very case...