toptwo

SACRAMENTO — California Democrats caught a huge break with Eric Swalwell’s sexual assault scandal. It surfaced in early spring rather than midsummer.

Just think of the Democratic debacle that could have occurred.

What if the accusations of sexual misconduct, including alleged rape, had come to light after the gubernatorial candidate had triumphed in the June 2 primary and qualified for the November ballot?

Under California law, it would have been impossible to remove him from the ballot and insert a Democratic replacement.

“It would have been pretty devastating,” notes Assemblywoman Gail Pellerin (D-Santa Cruz), who heads the Assembly Elections Committee.

“It has given us a lot to think about.”

There’s a glaring flaw in California’s election system that should be fixed for the future. But exactly how is trickier than it might seem.

Here’s what I’m talking about:

Prior to April 10 — doomsday for Swalwell — the then-congressman from the East San Francisco Bay was leading the large field of Democratic candidates for governor. Just barely. But he was starting to pull away, based on polling and endorsements.

A survey conducted by the independent Public Policy Institute of California just before Swalwell’s accusers went public showed him leading all candidates — Democrats and Republicans — with 18% support among likely voters.

He was closely trailed by Republican Steve Hilton, a former Fox News host, with 17%. Another Republican and a Democrat — Riverside County Sheriff Chad Bianco and billionaire climate activist Tom Steyer respectively — were tied for third at 14% each. Democratic former Orange County Rep. Katie Porter followed at 10%.

You can now toss all those numbers in the trash. But the point is that Swalwell was headed for victory in the primary. His next stop was the governor’s mansion because no Republican has won a statewide race in California in two decades.

The Democratic front-runner was raking in endorsements from interest groups and democratic politicians. He was considered the safest bet in a generally unimpressive field, a regular middle-class guy — and a white male, the only ethnicity and gender that has ever been elected governor in California.

Former state Controller Betty Yee, a Democratic darkhorse candidate for governor, was pretty much on target when she observed after Swalwell’s campaign collapsed:

“The obsession with who looks the part [of governor] almost got us an alleged sexual predator in Sacramento — ignoring the reality we need to actually fix our fraught state.”

But what if the victims of Swalwell’s alleged sexual improprieties — five women at last count — had waited a few more months to go public? And that’s conceivable. After all, they had remained silent for years. Apparently the nightmare of their alleged assailant becoming governor inspired them to talk now.

Although Swalwell quickly dropped out of the race, there’s no way to erase his name from the primary ballot. But at least voters can choose among seven other “major” Democratic contenders.

If he had already won in the top-two primary, however, and a Republican had also qualified for the November ballot, Democratic voters would have been left high and dry.

Presumably no sane person, no matter how partisan, would vote to elect an alleged rapist as governor. But the only other choice would have been a Republican lackey of President Trump. He’d undoubtedly win by default in a landslide.

“If Democrats had been stupid enough to nominate Swalwell, they’d have been stuck with him,” says Tony Quinn, a Republican elections analyst.

“Even dying doesn’t get you off the ballot. You don’t want to be the party nominee? So what, you are.”

No write-in candidacies are allowed in California’s general elections, although they are in the primary. That’s an inexplicable flaw.

“I’ve thought for years there should be a write-in option to deal with such a problem,” says UCLA law professor Rick Hasen, an expert on elections law.

Also, he points out, California’s top-two primary system — which advances only the top two vote-getters regardless of party — “cuts out minor parties from being relevant. You ought to be able to write in a minor party candidate.”

One reason a candidate can’t be removed from the ballot, election officials claim, is that tens of millions ballots have to be printed early enough to mail to every registered voter one month before election day.

Nonsense. In this era of rapidly expanding technology, you’d think that dilemma could be resolved even within snail-paced government bureaucracies. If nothing else, mail out a supplemental ballot just for the governor’s race.

But a bigger question is exactly who would choose the replacement for a departed candidate.

In a presidential election, the party hierarchy — a convention or national committee — would choose another nominee.

But there are no party nominees in California’s top-two open primary system. Parties don’t choose candidates for the November election. Voters regardless of their party do. So, in Swalwell’s case, the Democratic Party alone wouldn’t be entitled to select his substitute — unless the law were changed.

Or, perhaps the No. 3 vote-getter in the primary could automatically be elevated to the general election. We then could wind up with two candidates from the same party. But at least there’d be a better choice than an alleged sexual predator.

“I kind of miss those days” when parties nominated, says Pellerin, who was Santa Cruz County’s chief elections official for 27 years. “It’s something I’ve been thinking about — whether this is the best primary system.”

As I recently wrote, my vote would be to junk the top-two system and return to pre-”reform” party-nominating primaries.

Advocates of the top two primary — including myself — thought it would produce more centrist officeholders. It really hasn’t. It has just caused additional problems — like occasionally sending two candidates of the same party to the November runoff.

Meanwhile, all California voters should be grateful that Swalwell’s accusers courageously went public in April, not August.

What else you should be reading

The must-read: Swalwell supporters scramble after he drops out of governor’s race. Who will benefit?
California love: Californians are pouring money into Democrats’ Senate races in other states
The L.A. Times Special: There’s a wide gap between rumor and fact. That’s where Eric Swalwell lurked

Until next week,
George Skelton

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SACRAMENTO — It’s probably time for California to reform the outdated “reform” that could be leading us into an absurd November election with no Democratic candidate for governor allowed on the ballot.

The absurdity is that Democratic voters outnumber Republicans in California by nearly 2 to 1. But the voters’ choices for governor could be restricted to just two Republicans — both disciples of President Trump, who is despised in this state.

We’d be electing our first GOP governor in 20 years.

The odds against this scenario are high. But it’s an increasing possibility.

It’s conceivable because of a crowded Democratic field of candidates and a 2010 reform placed on the ballot after a late-night deal demanded by a Republican state senator — Abel Maldonado of Santa Maria — in exchange for his vote to pass a stalled budget and tax increase.

The compromise led to voter approval of California’s unique top-two open primary. The top two vote-getters advance to the November runoff, regardless of party. It’s called an open primary because voters can choose any candidate, no matter their party.

So two Democrats or two Republicans might be the only choices in November — in statewide, congressional and legislative races. That doesn’t happen often, but it has a few times.

It doesn’t reflect the current reality of American politics, with voters sharply polarized between Democrats and Republicans. They want to vote for someone from their own party and are not interested in choosing among two perceived evils.

We should consider returning to a primary system that produces party nominees — one Democrat and one Republican — to give voters a more varied selection in November. Maybe even allow a third or fourth candidate to emerge from minority parties.

It’s too late to change for this year, but we could for future elections. It would require voter approval.

For the present, we’re saddled with the unwieldy dilemma of there being eight major Democratic candidates and just two Republicans. If the combined Democratic vote is splintered among the eight Democrats in the June 2 primary, the two Republicans could end up finishing first and second.

Political data guru Paul Mitchell, who has been running primary election simulations, pegs the chances of a Democratic lockout at 20%.

“There’s only a one-in-five chance, but you don’t want to see a one-in-five chance with something this important,” says the statistician, who works mostly for Democrats.

“To be safe, the Democratic Party needs to have a candidate polling at 20% or more. And none of the Democratic candidates are half way there. It’s scary.”

Mitchell bases his assessment on a poll released last week by state Democratic chairman Rusty Hicks, part of an effort to pressure low-polling Democratic candidates to step out of the race.

The survey showed both Republicans leading the field — former Fox News host Steve Hilton with 16% and Riverside County Sheriff Chad Bianco at 14%. At 10% each were three Democrats: Rep. Eric Swalwell of the San Francisco Bay Area, former Orange County Rep. Katie Porter and wealthy climate activist Tom Steyer. No other Democrat registered above 3%. There were 24% undecided.

The straggling candidates need to ask themselves, Hicks says: “if you’re polling 1% to 2%, do you have a path to get to 20?

“All of these candidates are experienced. They know in their gut when they’re viable or not.”

Mitchell says, “A lot of folks are now looking at why we have a wacky system that causes [a party chair] to tell candidates they should drop out of a race.”

Yes, it does smack of being undemocratic even if it’s practical politics.

Mitchell says the top-two system should be scrapped.

Hicks agrees.

“Things that were promised [by top-two promoters] have not been delivered,” the state party chairman told me. “It’s time to consider going back to the kind of system voters like.”

Appealing to the middle

I called around and got different views from veteran Democratic strategists.

“It was sold as reform, but it’s not reform. It’s a distortion of the process,” one former political consultant told me, asking for anonymity because of his current employment. “Everybody thought it would yield more moderate, consensus candidates, but that’s not what’s happening.”

Consultant Steve Maviglito, who ran the 2010 campaign against the top-two system, says it’s undemocratic because it risks not giving voters “a chance to cast a ballot for a candidate they have some belief in. That’s what our system is built on.”

The grand theory, he notes, was that candidates would be forced to appeal to the middle.

“Just the opposite,” Maviglio argues. “Democrats want a strong Democrat and Republicans want a strong Republican. The only thing in the middle of the road is a dead armadillo.”

Moreover, he points out, the top-two system has been manipulated by Democrats — including Sen. Adam Schiff and Gov. Gavin Newsom — to boost a Republican in the primary to guarantee a non-competitive, easy election in November.

That’s a bit sleazy.

“The top-two has actually been hugely good to Democrats,” says Democratic strategist Garry South. “They need to think this through. Since the top-two primary was implemented, there have only been three same-party runoffs for state office out of 26 races — all three of them Democrats.

“The current specter of two Republicans [in November] is not the fault of the top-two primary system. It’s due to every Democrat and their brother — or sister — taking a flier and filing for governor.”

“Never,” replies consultant David Townsend when asked whether the top-two primary should be junked. He ran the ballot campaign authorizing it. Townsend insists today’s Legislature contains more moderate Democrats because of the top-two and that they provide a check on the liberal majority.

That’s true to some degree.

OK, we could leave the top-two system for the Legislature and scuttle it for statewide offices.

The thought of being limited to a choice between two Republicans — or two Democrats — for governor is unacceptable and un-American.

What else you should be reading

The must-read: USC cancels gubernatorial debate amid uproar over candidates of color being excluded

The L.A. Times Special: It’s been decades since California had a governor’s race like this one. That was a shocker

Until next week,
George Skelton

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