The Independent View: CA Voters Forgot About the Top-Two Statute

Thanks to Richard Winger from Ballot Access News for the information for this post.

In February 2009, the California legislature, in a all-night session, passed Top-Two Primaries with two bills, one a constitutional amendment to put Top-Two on the June 2010 ballot, and another that was just a statute, and which would only go into effect if the voters approved the Top-Two constitutional amendment.

The Voters Pamphlet only had the text of the proposed constitutional amendment, so the voters did not know what was in the implementing legislation statute.

The statute included:

1. Changing the number of signatures in lieu of filing fee was implicit in the constitutional amendment itself. Once all candidates were "voter-nominated", and could get signatures in lieu of the filing fee from all registered voters, it would have been obviously unconstitutional to have different numbers of signatures for different kinds of candidates for the same office. So the Secretary of State issued a regulation saying that from now on, the 10,000 (for statewide office), 3,000 (for US House and State Senate) and 1,500 (for Assembly) apply to all candidates, whereas formerly they only applied to members of parties that had more than 5% of the registration (i.e., Republicans and Democrats).

2. Alternatively, they can pay a filing fee, which ranges from $2,600 to $3,500. The fee is fixed by state law at “two percent of the first-year salary” of state officeholders and “one percent of the first-year salary” for members of Congress, the Board of Equalization, State Senate and State Assembly.

3. Write-in votes would not be counted.

Before Top-Two, independent candidates didn't need any signatures in lieu of filing fee, because independent candidates needed a ballot access petition just to get on the November ballot, so the law said a signature on an independent petition would be deemed to also count as a signature in lieu of a filing fee. So, effectively, there was no filing fee for independent candidates.

So the bad stuff was mostly in the implementing legislation statute that the voters didn't vote on and didn't know about when the voted in 2010.

Taking away the label "independent" was part of the implementing legislation passed in 2009. The implementing legislation had said write-ins could never be counted, but had left write-in space on the ballot.

In 2012 the legislature passed AB 1413, putting that into the law. AB 1413 took away write-in space from the general election ballot for Congress and state office.

So in 2014, many independent candidates will need many more signatures or larger funding for filing fees, to get on the primary ballot.