A new California presidential primary election system that may be considered in the future would be a real boost to Sen. Bernie Sanders, or a candidate with similar appeal to independents.

The San Diego-based Independent Voter Project is drafting a lawsuit aimed at making the California presidential primary conform with the state constitution.

The thrust of the legal approach is that the California constitution calls for an open primary, specifically the “Top Two Candidates Open Primary Act.” But the courts have protected the rights of political parties to choose their presidential nominees as they see fit. If the lawsuit is successful, someone — possibly the Legislature or the courts — would have to create a process that satisfies both demands.

A brief civics primer before diving in:


Open primaries either don’t require voters declare a party affiliation to vote or allow voters to choose which party primary ballot they want on election day.

The top-two is a nonpartisan form of open primary that lists all candidates on one ballot and voters can choose among them, regardless of party affiliation. The two candidates with the most votes advance to November.

The lawsuit would be filed sometime after the 2018 election, according to Steve Peace, the former state finance director and San Diego legislator who co-founded the Independent Voter Project. He said other groups and individuals likely will join.

“Our underlying ethic is for more people voting,” Peace said.

The main goal would be to put all candidates on the same ballot and let everybody vote on them, which is the way it works in non-presidential primaries. That would eliminate confusion and save costs.

Because of legal rulings that guarantee national political parties the right of private association, California continues to hold a version of “closed” presidential primaries, which are separate partisan elections generally limited to registered members of a given party. Democrats allow voters who are not affiliated with a political party — independents — to vote in their presidential primaries; Republicans do not.


If the lawsuit succeeds, a new system would have to be devised, possibly one similar to the top-two primary in place for other California elections. However, while the top-two vote-getters would be guaranteed a spot on the fall ballot, they wouldn’t be the only ones on it.

Such a primary could have allowed Sanders a place on the November 2016 ballot along with Hillary Clinton and Donald Trump.

Democrats Clinton and Sanders finished first and second in votes, with 2.7 million and 2.3 million, respectively. Republican Trump’s 1.6 million votes was third-most. But he would also advance because the Republican Party, or any other qualified party, couldn’t be denied a spot on the November ballot for their presidential nominee.

States can adopt whatever presidential primary system they want, but they can’t bind political parties to the outcome. However, the parties have chosen to use the results to varying degrees to help determine their nominees.


The Republican Party has the legal right to allow only its members to choose the nominee. If the party didn’t want to change, how would that happen under this new “top-two” system? One possibility would be to have ballots coded by party — they are now — and while the total open vote would be tallied, the parties could choose to count only votes from party members.

Republicans may eventually determine, as California Democrats have, that it’s in their interests to allow non-party members a vote they count.

Peace and Independent Voter Project Executive Director Dan Howle said they are trying to make elections more about voters than political parties.

“The sole purpose of elections should be to allow voters to express themselves,” Howle said.


With increasing numbers of voters choosing not to join a political party, closed primaries are shutting out more people. That generally limits primary turnouts to shrinking minorities of voters who are the gatekeepers for the November general elections. Howle and Peace want to change that.

“This is aligning the political system to the change in society,” Peace said.

“Nonpartisan primaries treat every individual citizen equally. Partisan primaries by definition discriminate against nonpartisan voters.”

Peace was a lead author of Proposition 14, the state constitutional amendment approved by voters in 2010 that created California’s non-partisan top-two primary.


The political parties opposed the measure, wanting to keep control of the nominating process and, frankly, attempting to limit their primaries to people with a common view.

Only California and Washington state have top-two primaries, while nearly two dozen states have open primaries or some hybrid version. In addition to encouraging more voter participation, such systems were anticipated to create more competition and elect more moderate candidates.

One study of California’s top-two primary pointed to some success there, while another concluded it had minimal impact on electing more moderates. Experts say analysis is difficult because the revamped primary came around the same time as the state’s independent redistricting process and legislative term-limit extensions. Plus, it’s early.

“We’re still in the infant years of this new system,” Peace said.


But it’s safe to say that more uniform elections might do away with confusion over two primary voting systems in California. In 2016 a lot of people didn’t understand how the California presidential primary worked, including the Sanders campaign for a while, and the Vermont senator may have paid the price.

Lots of voters with no party preference were told they had to re-register to vote in the Democratic primary, rather than simply ask for a Democratic ballot. A notable bump in American Independent Party registration suggests some voters may have mistakenly signed up with the AIP, or that independents on their own thought this is how they needed to register. Some blamed a confusing voter registration card.

Regardless, folks that remained registered that way were shut out of the Democratic primary.

The state didn’t do a very good job of voter education in 2016. It will have to step up its game if a new presidential primary system comes to pass.