A nonpartisan primary, top-two primary,[1] or jungle primary[2] is a primary election in which all candidates for the same elected office run against each other at once, regardless of political party. This distinguishes them from partisan elections, which are segregated by political party. This is a two-round system (with minor differences from others in the dates of the elections and that the second election is always held even if one candidate gets more than 50% in the first round).
Advocates claim the system will elect more moderate candidates, as members of a minority party could vote for a more moderate candidate from the majority party,[3][4][5] with some political scientists expressing similar views. However, empirical research on the system have found no effect on candidate moderation[6] or turnout among independent voters.[4][7]
Such primaries are also susceptible to vote-splitting: the more candidates from the same party run in the primary, the more likely that party is to lose.[3][8][9]
The nonpartisan blanket primary is different from the blanket primary. They are similar in that voters can vote in the first round for a candidate from any political party. The partisan blanket primary was used in Washington for nearly 65 years[10] and briefly in California. However, the blanket primary was ruled unconstitutional in 2000 by the Supreme Court of the United States in California Democratic Party v. Jones, as it forced political parties to associate with candidates they did not endorse. The nonpartisan blanket primary disregards party preference in determining the candidates to advance to the general election, and for that reason, it was ruled facially constitutional by the Supreme Court in the 2008 decision Washington State Grange v. Washington State Republican Party.[11]
Chief Justice John Roberts concurred in the 2008 decision, stating: "If the ballot is designed in such a manner that no reasonable voter would believe that the candidates listed there are nominees or members of, or otherwise associated with, the parties the candidates claimed to 'prefer', the I–872 primary system would likely pass constitutional muster." Each candidate for partisan office can state a political party that they prefer. Ballots must feature disclaimers that a candidate's preference does not imply the candidate is nominated or endorsed by the party or that the party approves of or associates with the candidate.
Both Washington and California implement a two-winner nonpartisan blanket primary by plurality vote.
The plan is used in Texas and other states in special elections but not primaries. A notable example involved former US Senator Phil Gramm, who in 1983 (while a member of the House of Representatives), after switching from the Democratic to the Republican Party, resigned his seat as a Democrat on January 5, ran as a Republican for his own vacancy in a special election held on February 12, and won rather handily.
There have also been efforts in Oregon to pass a similar law. However, the Oregon Senate rejected it in May 2007[1], and it failed in a November 2008 referendum as Measure 65. Oregon voters defeated it again in November 2014 as Measure 90, despite a $2.1 million donation from former New York City Mayor Michael Bloomberg and a $2.75 million donation from former Enron executive John D. Arnold to support it.[12]
Maryland has explored a top-two primary, erroneously naming it an open primary, such as in 2019 House Bill 26.[13] Testimony was provided by several organizations, including FairVote and Common Cause, and independent constituents, and included statements about Condorcet systems, proportional representation and single transferable vote, and concerns that a top-two rather than top-three or more primary would not supply adequate choice for voters.[14]
In Florida, an amendment to adopt the top-two primary was unsuccessful in 2020. 57% of votes were in favor but this failed to reach the threshold of 60% to pass.[15]
In the 2020 Alaska elections, voters approved Measure 2, which replaced party primaries with a single non-partisan blanket primary, a top-four primary. The top 4 candidates advance to a general election that uses ranked-choice voting. It is used for all state and federal elections except for the president.[16]
California's blanket primary system was ruled unconstitutional in California Democratic Party v. Jones in 2000. It forced political parties to associate with candidates they did not endorse. Then in 2004, Proposition 62, an initiative to bring the nonpartisan blanket primary to California, failed with only 46% of the vote. However, Proposition 14, a nearly identical piece of legislation, passed on the June 2010 ballot with 53.7% of the vote.[17]
Under Proposition 14, statewide and congressional candidates in California, regardless of party preference, participate in the nonpartisan blanket primary. However, a candidate must prefer the major party on the ballot that they are registered in. After the June primary election, the top two candidates advance to the November general election. That does not affect the presidential primary, local offices, or non-partisan offices such as judges and the Superintendent of Public Instruction.[18] The California Secretary of State now calls the system a "Top-Two Primary".[19]
Federal elections
The 2012 general election was the first non-special election in California to use the nonpartisan blanket primary system established by Proposition 14. As a result, eight congressional districts featured general elections with two candidates of the same party: the 15th, 30th, 35th, 40th, 43rd, and 44th with two Democrats, and the 8th and 31st with two Republicans.
In the 2014 general election, eight congressional districts featured general elections with two candidates of the same party: the 17th, 19th, 34th, 35th, 40th, and 44th with two Democrats, and the 4th and 25th with two Republicans.
In the 2016 general election, the U.S. Senate race featured two Democrats running against each other and seven congressional districts with two Democrats running against each other: the 17th, 29th, 32nd, 34th, 37th, 44th, and 46th. There were no races with two Republicans running against each other.
California 15th Congressional District, 2012
The 15th district is based in the East Bay and includes Hayward and Livermore. Democrat Pete Stark, who represented the 13th district from 1993 to 2013 and its predecessors since 1973, lost reelection to fellow Democrat Eric Swalwell in the general election after Stark won the primary.
Along with California and Alaska, Washington had a blanket primary system that allowed every voter to choose a candidate of any party for each position. That kind of system was ruled unconstitutional by the US Supreme Court in California Democratic Party v. Jones (2000) because it forced political parties to endorse candidates against their will.[11]
The Washington State Legislature passed a new primary system in 2004, which would have created a top-two nonpartisan blanket primary system. It provided an open primary as a backup, giving the Governor the option to choose. Although Secretary of State Sam Reed advocated the blanket, non-partisan system, on April 1, 2004, the Governor used the line-item veto to activate the Open primary instead. In response, Washington's Initiative 872 was filed on January 8, 2004, by Terry Hunt from the Washington Grange, which proposed to create a nonpartisan blanket primary in that state. The measure passed with 59.8% of the vote (1,632,225 yes votes and 1,095,190 no votes) in 2004.[20] On March 18, 2008, the US Supreme Court ruled, in Washington State Grange v. Washington State Republican Party, that Washington's Initiative 872 was constitutionally permissible. Unlike the earlier blanket primary, it officially disregards party affiliation while allowing candidates to state their party preference. However, the court wanted to wait for more evidence before addressing the chief items in the complaint and remanded the decision to the lower courts.[11]
Washington state implemented this Top 2 primary, starting in the 2008 election,[21] which applies to federal, state, and local elections, but not to presidential elections.[22] There is no voter party registration in Washington, and candidates are not restricted to stating an affiliation with an established major or minor party. The candidate has up to 16 characters to describe on the ballot the party that they prefer.[23] Some candidates state a preference for an established major party, such as the Democratic Party or the Republican Party, while others use the ballot to send a message, such as Prefers No New Taxes Party or Prefers Salmon Yoga[24] Party. Since this is a "preference" and not a declaration of party membership, candidates can assert party affiliation without the party's approval or use alternate terms for a given party. Gubernatorial candidate Dino Rossi's 2008 stated preference was for the "GOP Party", although he is a prominent Republican.[25]
In this race a three-way primary led to a two-way race between two members of the same party (Republicans) in the general election. With over 20% of the population voting for the Democrat and neither Republican winning close to a majority in the primary, both of the Republican candidates had to appeal to Democrats and other voters who did not support them in the first round. For example, incumbent Norm Johnson came out in favor of same-sex civil unions, moving to the left of challenger Michele Strobel, who opposed them.[28]
Washington state legislature, 38th district, State Senate, 2010
In this heavily Democratic district, Berkey was officially endorsed by the 38th District Democratic Party.[31] However, Democratic challenger Nick Harper bankrolled ads for the Republican candidate to "Squeeze the Middle" and prevent the moderate incumbent Berkey from running in the general election.[32][33] When Berkey placed third in the primary by a margin of 122 votes, the Moxie Media scandal ensued: the state's election watchdog committee unanimously voted to refer the case to the state Attorney General Rob McKenna, who within hours "filed suit, alleging multiple campaign-finance violations".[32] Despite the call of several former state senators to hold another election, the election results were upheld, and Berkey was prevented from running in the general election.[32][33] Harper easily won the subsequent uncompetitive runoff election.
Washington state US Senate race, 2010
First Ballot, August 17, 2010 (only top three vote-getters listed)[34]
In this race, the three leading candidates' competition resulted in a more moderate and popular Republican facing off against the incumbent Democrat, with a relatively close general election. Clint Didier and Dino Rossi were the two main Republicans vying to run against the incumbent Democratic Senator Patty Murray. Rossi had much greater name recognition, had narrowly lost two races for governor, and was favored by the party establishment. Didier, a former tight end for the National Football League's Washington Redskins, had never run for elected office and was endorsed by Tea Party favorites Ron Paul and Sarah Palin. Didier might have been able to win the GOP nomination from Rossi in a closed primary that rewards candidates for appealing to the hardline of their base, but the more moderate Rossi was easily able to defeat Didier in the Top Two primary. While one might expect more Democrats in the Top Two primary to vote tactically for Didier, the Republican candidate who was doing much worse in polls against Murray, most Democrats seemed content voting for Murray. If any tactical voting occurred, it seemed to be on the Republican side, with the vast majority of the Republican voters choosing Rossi, perceived as a more electable candidate. In this case, the Top Two primary resulted in a more moderate Republican candidate running against the Democratic incumbent, and likely a much more competitive race than if the Tea Party candidate had run against Murray.[35]
Washington 4th Congressional District, 2014
The 4th district is a large and predominantly rural district in Central Washington that encompasses numerous counties and is dominated by the Tri-Cities and Yakima areas. Republican Doc Hastings, who represented the 4th district since 1995, retired.[36] The two winners of the top two primary were the Tea Party candidate Clint Didier (endorsed by Ron Paul) and Dan Newhouse, the former Director of the Washington State Department of Agriculture under Christine Gregoire and Jay Inslee and former State Representative.[37][38] In a close general election, Newhouse prevailed.
Though the intention is to allow multiple candidates from the majority party to advance to the second round, critics note that this can also happen to a minority party when that party runs fewer candidates than another and thus faces less vote-splitting. Under the nonpartisan blanket primary, a party with two candidates and only 41% popular support would beat a party with three candidates and 59% popular support if voters split their votes evenly among candidates for their own party. For example, in Washington's 2016 primary for state treasurer, Democrats won a majority of the vote but failed to move on to the general election:[41]
Candidate
Party Preference
Support
Outcome
Duane Davidson
Republican
322,374 (25.09%)
Runoff
Michael Waite
Republican
299,766 (23.33%)
Runoff
Marko Liias
Democratic
261,633 (20.36%)
Defeated
John Paul Comerford
Democratic
230,904 (17.97%)
Defeated
Alec Fisken
Democratic
170,117 (13.24%)
Defeated
Political science professor Todd Donovan published an article in 2012 for the California Journal of Politics & Policy called "The Top Two Primary: What Can California Learn from Washington?"[42][43] Donovan was the only expert witness in favor of the top-two idea,[44] for the as applied court challenge of Top-Two. His academic paper states, "The partisan structure of Washington's legislature appears unaltered by the new primary system." Donovan concluded, "The aggregate of all this did not add up to a legislature that looked different or functioned differently from the legislature elected under a partisan primary."
In Washington, major parties originally used an alternate process of party endorsement for partisan legislative and county administrative positions.[45] This would ensure that one official party candidate will be in the primary, theoretically reducing the risk of intra-party vote-splits. However, the law does not allow nominations or endorsements by interest groups, political action committees, political parties, labor unions, editorial boards, or other private organizations to be printed on the ballot.[46]
The indication of party preference as opposed to party affiliation opens the door for candidates to misrepresent their leanings or otherwise confuse voters. In 2008, a Washington gubernatorial candidate indicated party preference as "G.O.P." instead of Republican. A public poll found that 25% of the public did not know that the two terms mean the same thing.[47]
Further research on California's 2012 jungle primaries suggests that a jungle primary does not tend to lead to large amounts of crossover votes.[48] Most voters who crossed over did so for strategic reasons. Furthermore, there is evidence that having the top two candidates from the same party could lead to a drop in voter participation in the second round. With regards to reducing political polarization, this does not seem to hold true. Due to lack of crossover votes, an extreme candidate from the majority party can still win over a moderate from the other party.[49][50][51][52] Though the intention of the system is to get a moderate from the majority party, this will not happen if there is no moderate, if the moderate lacks name recognition, or if voters are unsure of which candidate is more moderate.
^ abNagourney, Adam (24 May 2018). "Here's How California's 'Jungle Primary' System Works". The New York Times. Retrieved 2018-06-23. The theory was that candidates would be forced to moderate their appeals to win a broader section of the electorate. ... leading to a November ballot between two candidates from the same party. That would happen if multiple candidates from the same party crowded the ballot, canceling each other out as they divided a finite group of voters
^ abKousser, Thad. "California's jungle primary sets up polarized governor's race for November". The Conversation. Retrieved 2018-06-23. The idea was that by opening up primaries to all voters, regardless of party, a flood of new centrist voters would arrive. That would give moderate candidates a route to victory .. Candidates did not represent voters any better after the reforms, taking positions just as polarized as they did before the top two. We detected no shift toward the ideological middle.
^"The Primary: What Is It Good For?". The Center for Election Science. 2014-08-21. Retrieved 2018-06-23. This approach aims to soften how partisan the winners are. ... support for the middle is divided among three candidates (we call this vote-splitting). Plurality's winners are largely determined not by the merit of the candidates, but rather by who else is running.
^Hill, Seth J.; Kousser, Thad (2015-10-17). "Turning Out Unlikely Voters? A Field Experiment in the Top-Two Primary". Political Behavior. 38 (2): 413–432. doi:10.1007/s11109-015-9319-3. ISSN0190-9320. S2CID54541384. Two groups that were predicted by advocates to increase their participation in response to this reform—those registered with third parties or no-party-preference registrants (independents) who were not guaranteed a vote in any party's primary before the move to the top-two—also show declines in turnout
^p. 12, Line 5 (Sep 17, 2010) PLAINTIFF INTERVENORS' OPPOSITION TO STATE OF WASHINGTON'S MOTION FOR SUMMARY JUDGMENT -1CV05-0927 JCC "Archived copy"(PDF). Archived(PDF) from the original on 2016-03-04. Retrieved 2012-10-09.{{cite web}}: CS1 maint: archived copy as title (link)
^The Elway press release to news organizations was reprinted in Mapes, Jeff (2008-08-14). "Washington's current governor's race". Mapes on Politics. The Oregonian. Retrieved 2008-08-20.
^McGhee, E., Masket, S., Shor, B., Rogers, S. and McCarty, N., 2014. A primary cause of partisanship? Nomination systems and legislator ideology. American Journal of Political Science, 58(2), pp.337-351. doi: McGhee, Eric; Masket, Seth; Shor, Boris; Rogers, Steven; McCarty, Nolan (2014). "A primary cause of partisanship? Nomination systems and legislator ideology". American Journal of Political Science. 58 (2): 337. doi:10.1111/ajps.12070.
