Commentary: California's election rules make it hard to hold politicians accountable

Commentary: California's election rules make it hard to hold politicians accountable


On Dec. 18, when the House of Representatives voted to impeach President Donald Trump, some members of California's congressional delegation voted "yea" and some voted "nay."

You might want to run against your representative in the 2020 election if you disagree with the way he or she voted that day. But thanks to California's top-two primary and its March primary date, you'd have to wait until 2022.

As of Dec. 11, no one could throw his or her proverbial hat in the ring from California. In other words, every member of California's House delegation was insulated from challengers before the impeachment vote happened. That's not a good system for political accountability.

California used to go the polls three times during a presidential election year - for the presidential primary, a primary for other federal and state elections and the general election. To save taxpayer money - running an election in California can cost somewhere in the neighborhood of $100 million - in 2011 the state consolidated all primaries into a single June election ahead of the November general election.

The consolidation decision cut costs and streamlined voting, but it also pushed California to the end of the presidential primary process and minimized the state's influence in the national contest. In 2016, for instance, Donald Trump and Hillary Clinton had all but secured their parties' nominations by the time Californians went to the primary polls.

So California moved up its primaries, which this year will be held March 3. But that means all primary elections, including for members of Congress, will take place in March. California is now an outlier - all but eight states hold congressional primaries much closer to the general election, often in June or August.

A March primary means that challengers for the House of Representatives must file by the preceding December (the exact date depends on the exact primary date). Members of the House only serve two-year terms, but candidates have to file more than a year before the term begins.

There are good reasons for holding congressional primaries much closer to the general election. Later primaries give potential candidates a longer opportunity to consider whether an incumbent should be challenged or to decide whether to enter the race for an open seat. They also allow voters to consider more immediate political information about a candidate, particularly an incumbent, before casting their ballots. Granted, those who want to run frequently announce their candidacies very early. But that is out of choice, not necessity.

Early primaries have the effect of insulating incumbents. If incumbents see no serious competitors after an early filing date, they may decide to act without regard to constituents - for example, when called upon to vote for or against impeachment.

California's "jungle" primary is a further complication. Until 2010, voters for each party chose party nominees for each office at the primary election. Those nominees and any independent candidates would then face off in the general election. Californians approved Proposition 14, the Top Two Candidates Open Primary Act, and changed the process. Now the top two vote-getters in the March primary, regardless of party, will face off in the November general election.

In the few other states with March congressional primaries, independent candidates can petition sometime in 2020. Not so in California - all 2020 candidates must have filed in December.

The state's long lead time for 2020 congressional elections may run up against constitutional requirements. The Supreme Court in 1983 concluded that a March filing deadline for a November presidential election was too stringent a ballot-access requirement and burdened the right to vote. The same principle likely applies to congressional elections. Indeed, the 9th U.S. Circuit Court of Appeals in 2012 approved Washington state's top-two system, which is similar to California's, but the court also emphasized that the "primary is in August, not March."

A federal court may ultimately find California's rules unconstitutional. Sacramento lawmakers shouldn't wait for a court decision. For the next presidential cycle, they should reconsider the timing of the primaries, or the decision to consolidate congressional and presidential primary votes in one election. California should aspire for more accountability in our political process, not less.



Derek Muller is a professor of law at Pepperdine University Caruso School of Law.

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