FROM: Kim Alexander
DATE: March 5, 1999
RE: CA's Open Primary law upheld again

Hi Folks,

California's Open Primary law has survived the most recent legal challenge -- this time, it was before the U.S. 9th Circuit Court of Appeals. As you may recall, the challenge to the law has come from California's Republican and Democratic parties. Media statements from the California Democratic Party indicate they plan to take their challenge to the last and final step -- the U.S. Supreme Court. Below is an excellent story about the decision from today's San Francisco Chronicle.

Still up in the air is whether California voters' votes in the March 2000 Presidential Primary will be counted by the Republican and Democratic parties, which have both stated that their rules do not allow them to count the primary election votes of non-party members. Apparently, it's now too late for the parties to change their rules, so the only option left is for the Legislature to pass a law to change the vote-counting system so it will work within the parties' rules and still allow our votes to be counted in March 2000.

The Legislature is currently considering two bills -- SB 28, authored by Senator Steve Peace, and supported by Secretary of State Bill Jones, and SB 100, authored by Senator John Burton. You can find more details about both these bills from the State Senate's web site, at:


Open Primary Survives Appeal
State voters allowed to cross party lines

By Harriet Chiang, Chronicle Legal Affairs Writer

A federal appeals court upheld California's new open primary law yesterday despite pleas from Democrats and Republicans that it could jeopardize the state's presidential primary next year.

Proposition 198 allows voters to cross party lines and vote for candidates of other parties. Approved by 59 percent of the voters in 1996, the law was immediately challenged by both the state Democratic and Republican parties as a violation of their First Amendment right of association.

In November 1997, U.S. District Judge David Levi of Sacramento upheld the law, finding that the state has a "substantial interest" in ensuring that the winning candidate represents a majority of the community.

"It was apparent that California voters believed that the system is fairer when all voters participate in framing the choice of candidates at the general election," Levi concluded.

Yesterday, the U.S. Court of Appeals in San Francisco upheld Levi's decision that the law is constitutional. In fact, the three-judge panel took the unusual step of adopting Levi's opinion as its own "because we concur in it in every respect," wrote Judge Betty Fletcher. Chief Judge Procter Hug Jr. and Judge Stephen Trott joined in the opinion.

Both state Democrats and Republicans warn that the blanket primary law could render the early presidential primary meaningless because the bylaws of the two national parties prohibit anyone outside the party from voting for the presidential delegates. The primary is considered an even greater political prize than beforebecause the date of the election has been pushed up from June to March.

"This makes the selection of the delegates to the presidential convention so complicated," said Jim Sutton, counsel to the California Republican Party." We still think that the blanket primary violates the rights of our members to choose our own leaders."

Art Torres, chairman of the California Democratic Party, indicated that Democrats will ask the nation's highest court to hear their appeal. "Ultimately, the U.S. Supreme Court will decide this important issue," he said in a statement issued after the opinion.

In the meantime, party leaders have been working on ways of avoiding a procedural nightmare. Two bills are pending in the Legislature that would keep the blanket primary for statewide offices but provide alternatives for the presidential vote.

One proposal calls for a second ballot for delegates who are already committed to supporting a specific candidate. Another puts special coding on the ballots to be tallied by the parties instead of election officials.

State Republicans covered their bases by adopting both plans at their convention last week in hopes of ensuring that the state votes count in the presidential primary.

"Barring any unforeseen circumstances, the Legislature and the parties are going to figure a way out of this," said Republican consultant Dan Schnur.

Secretary of State Bill Jones said he plans to work with both parties as well as state lawmakers to try to arrive at a solution "that protects the integrity of the open primary and ensures that California's delegates are seated at the 2000 presidential nominating conventions."

He noted that last year, the state's first open primary drew the highest number of voters in 16 years. With the "combined allure" of an open primary and a presidential primary, Jones said, "We can expect a near-record turnout in March of 2000."

copyright 1999 San Francisco Chronicle