A solution of the problem both convenient and effective may be seen in the extra-legal efforts which are being put forward with increasing results to narrow the field in the primary election to the two principal candidates representing the opposing factions in the party. The American mind has demanded simplicity in politics. It has not tolerated the refinements in political beliefs which have made six or seven important parties possible in European countries. We have developed the biparty system. There is much evidence to the effect that the numerous factions and candidates which have sometimes appeared under the direct primary will be likewise, and for the same reasons, replaced by a bi-factional system wherever there are any real issues to be fought out in state politics. Where issues are scarce and the contest is merely between office seekers, there will still be numerous candidates. In such a case little harm can be done by a plurality choice. But where some vital question of government is under discussion, the organization of factions into two rival camps seems to be the American solution to the problem of minority control.

Examples of this are plentiful, and two are here chosen from the primaries of 1922 for purposes of illustration. The Pennsylvania campaign for the

Republican nomination for governor opened with many aspirants seeking the honor. The organization forces first began to eliminate the various gubernatorial possibilities until they narrowed the field to one man. This man was then opposed by two strong independent candidates. As the campaign wore on and it became evident that neither of the independents could hope to be successful so long as they were both in the field, one of them withdrew. The primary then became a clear-cut bi-factional contest between independents and organization.

The contest for the Republican nomination for governor in the state of Oregon began with no particular issues, aside from efficiency and economy, which was favored by all six men who were seeking the nomination. As the campaign progressed the Ku Klux Klan issue was forced into the controversy. The result was that the voters deserted the standards of four of the candidates and grouped themselves around either Governor Olcott, who was opposed to the Klan, or Senator Hall, who was favorable to it. Thus, as soon as an issue was brought into the contest, it became a bi-factional fight. It is this tendency of American voters to form into two groups which has caused the plurality election to be retained in the United States, when it has been generally abandoned in continental Europe. Municipal elections may form an exception to this rule. But in state politics it is this same tendency which has made the plurality primary tolerable, and, in fact, preferable to any other method which has thus far been devised.

HE California direct primary has

THE

not escaped the wave of criticism which has risen over the whole country against that method of nominating candidates for public office. Indeed, the California direct primary has been criticized severely ever since the law establishing its use was adopted in 1909. It has pleased neither its friends nor its enemies. Each year's experience has revealed some defect in the system, and the law has had to be amended, or repealed and reenacted in revised form every time the legislature has met. Even now, after a dozen years, the system while approved in the main, does not wholly satisfy the people of the state.

Two CURRENTS OF CRITICISM

In the last few years two currents of criticism have been apparent. One of these manifests itself in a demand that the direct primary be abolished and the convention system reëstablished. This attitude is taken generally by the more conservative interests in the state and is expressed through the columns of some newspapers which have been consistently opposed to direct nominations from the beginning. The Los Angeles Times has opposed the California direct primary chiefly on the ground that candidates are nominated by less than a majority of a party; that candidates of a party are nominated by the voters of another party; and that the law occasionally actually defeats the will of the voters of a party. The San Diego Union has opposed it on much the same ground.2 The San Francisco

1 The Los Angeles Times, September 6, 1918. 2 The San Diego Union, September 20, 1918.

4

Chronicle opposes the direct primary on the ground that this method of nomination has not caused an improvement in the character of office-holders. The Democratic national committeeman for California is also reported to have strongly urged the restoration of the convention system. He suggested that nominations for the primaries be made by party conventions instead of by petition. Others have advocated a return to the convention on the ground that the number of voters participating in the direct primary has been so small as to indicate no genuine public interest in the nominating procedure.

The second attitude toward the direct primary is that it should be continued, but made completely non-partisan. This, of course, is not a criticism of the direct primary but of the whole idea of partisan elections: This line of attack on the electoral system is more likely to succeed than the other. In fact there has been a tendency in California in favor of abandoning the party label in state and local elections. Since 1913 all county and other local offices and all school and judicial offices have been on a non-partisan basis.5 Efforts made since then to have the rest of the state officers chosen the same way have failed. In 1915 the legislature passed an act which made all offices except United States senator, representative in Congress, presidential elector, and party committeeman non-partisan." 3 The San Francisco Chronicle, December 29, 1918.

4 The San Francisco Chronicle, December 25, 1918.

The measure was submitted to referendum and at a special election held October 26, 1915, was defeated by a vote of 112,681 to 156,967, in a total registration of 1,219,345.7 Since then there has been no attempt to make state elections entirely non-partisan. Indeed, so far as the legislature is concerned, all of the proposals have been in the direction of greater partisanship in the primary. It should be pointed out, however, that even the offices filled on a nominally partisan basis are in fact largely non-partisan, because many persons take advantage of the opportunity offered by the primary law to become candidates of more than one party. A majority of the members of the state legislature of 1921 were unopposed for election, having been nominated by two and often three or more parties for the same office. The same thing is true of members elected in November, 1922. Nine out of the eleven members of the California delegation in the House of Representatives in the newly elected 68th Congress, were candidates of both Democratic and Republican Parties. Some of the undesirable results from trying to "use a partisan primary non-partisanly,' will be touched upon later. The situation is noted here because it shows why there has been no emphatic demand for non-partisan elections, and at the same time indicates how easy it would be to make the whole state government nonpartisan if it were undertaken with determination.

ADVANTAGES OF DIRECT PRIMARY

"8

It would hardly do to assert that these two attitudes divide all of the citizens of California. The general run of voters take the direct primary as a fixed institution. It is quite gener

7 F. Hichborn: Story of the California Legislature of 1921, p. 222 (1922).

The Fresno Republican, September 4, 1918.

ally conceded that in spite of criticism a law to abolish the direct primary and substitute the convention system if submitted to popular vote would be defeated overwhelmingly. Moreover, certain features of the California primary are evidently satisfactory. For example, the time of holding the primary-the last Tuesday in August, i.e., about two months before the election-seems to be a convenient time. The form of ballot is unobjectionable, and the provisions for counting the ballots, canvassing the returns, and certifying the results, and for recounts and contests are apparently adequate. The fee which is paid by a candidate when his nomination papers are filed is not exorbitant. It is $25 for candidates for representative in Congress and for offices voted for in districts comprising more than one county (except member of state senate or assembly); $50 for candidates for state offices and for United States senator, and for all other offices it is $10.'

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SOME TECHNICAL DEFECTS AND
DIFFICULTIES

Nomination in the partisan primaries is by plurality vote and some reactionaries profess to find in the resulting 'minority nominees" a fatal defect in the primary system. However, it is not usual for the nomination to go to a minority candidate. In the infrequent instances where it does the result is accepted without much criticism, not because it is just, but because it is more satisfactory than holding a second primary, or adopting preferential voting. In the non-partisan primary, the two candidates receiving the greatest number of votes for each office are certified as nominated to run in the subsequent general election, except that if one

J. Deering: Consolidated Supplement, 19171919, General Laws of California (1922), Act 1010, Sec. 7, p. 1200.

candidate receives a majority of the votes cast he is the only man certified to appear on the election ballot for the office for which he is contending.10 It is a rare case when more than two candidates appear in the primaries for a judicial, school, county or township office, and it is quite the usual event that there is only one contestant for such an office.

11

The procedure for proposing candidates to be voted on in the primary though generally acceptable, is also open to some criticism. The candidate, or somebody in his behalf, at least forty days before the primary election, files a nomination paper which is endorsed by a number of registered voters. The number of signatures required in the nomination paper of any candidate for a state office in any party primary is not less than onehalf of one per cent and not more than two per cent of the votes polled in the last preceding election by that party's candidate for governor.1 It has been proposed by some that candidates in the primary should obtain endorsements of their candidacy from voters in all counties of the state. This proposal has been opposed on the ground that it would increase an evil already too pronounced, i.e., the trade in circulating nomination papers. Some enterprising citizens will undertake to secure any number of signatures at a fixed rate of payment per signature. The new proposal would obviously intensify this evil. Yet, in view of the marked evidences of local pride and the pronounced rivalry between different sections of the state, the suggestion is not without merit.

In order to be entitled to have the names of its candidates printed on a

10 J. Deering: Consolidated Supplement, 19171919, General Laws of California (1922), Act 1010, Sec. 23, p. 1213.

11 Ibid., Sec. 5, pp. 1198-1199.

primary ballot, a party must have polled three per cent of the vote in the state in the last general election. If a new party appears it is entitled to this privilege by petition to the Secretary of State of a number of registered voters equal to three per cent of the total vote cast in the last general election.12 This provision is obviously somewhat disadvantageous to new parties. Securing some 30,000 signatures is indeed a difficult task. However, it is not impossible; and it must be admitted that if a party has not that much strength in the state, it is hardly worth while for it to hold a primary.

DIFFICULTY ARISING FROM QUALIFICATIONS FOR CANDIDACY

Considerable difficulty has been occasioned in the past by the provision in the California primary law relating to qualifications for candidacy. The law enacted in 1909 required that the candidate for a party nomination should make affidavit that he was affiliated with that party at the last preceding general election and at that time had voted for a majority of its candidates, or had not voted at all, and that he intended to vote for the candidates of that party at the ensuing election.1 This provision, of course, made it impossible for any except "regular" members of parties to become candidates in the party primaries. In 1911

12 J. Deering: Consolidated Supplement, 19171919, General Laws of California (1922), Act 1010, Sec. 1, p. 1190.

13 California Statutes, 1909, Ch. 304, p. 694. 14 One instance of the practical working of this clause in the law probably had a profound effect on the course of California politics. In 1909 Francis J. Heney, on account of a variety of circumstances, was under the law ineligible to become a candidate in any party primary. By "writing in" his name a majority of Democrats nominated him for District Attorney of San Francisco County. If his name could have been printed on the official ballot it is almost certain that he would have been nominated on the Union

the law was amended so that the past affiliation of the candidate did not disbar him from running in the primary of a party if he declared that he intended to affiliate with that party and vote for a majority of its candidates at the ensuing election.15

In 1913 the law was again changed. By this change a candidate was not required to say anything at all about his party affiliation and this clause was added: "Nothing in this act contained shall be construed to limit the rights of any person to become the candidate of more than one political party for the same office. ..." 16 Even after this change an attempt was made to limit candidacies in any party's primaries to members of that party. In the primary election held August 25, 1914, U. S. Webb, registered as a member of the Progressive Party, received a plurality of the vote cast in both the Republican and Progressive primaries for the office of Attorney General. In spite of the fact that the statute is clear and that there is no doubt of the legislature's power to pass such a statute, it was claimed that "a member of one party, seeking its nomination for an office, cannot at the same time . . . be a candidate for the nomination of another party for the same office." Application for a court order to prohibit the Secretary of State from certifying the nomination of Webb as the Republican candidate for Attorney General was denied. The court declared that if the members of a party

Labor ticket. With these two nominations, the advantage of "straight" voting would have been with Heney instead of against him, and in all probability he would have been elected. The famous San Francisco graft prosecutions would then have been carried through probably to an entirely different conclusion, with entirely different political consequences, of course. See F. Hichborn: The System, Ch. xxvii (1915).

15 California Statutes, 1911, Ch. 398, p. 774. 16 California Statutes, 1913, Ch. 690, p. 1389.

'seek to select as their candidate one affiliated with another party, or with no party, that is their privilege." 17

In 1917 the primary law was amended so that a primary candidate who failed to secure the nomination of the party with which he was affiliated as shown by his registration, could not be nominated by another party.18 In the first primary election after this amendment went into effect, that of 1918, there were on the Democratic ballot the names of three candidates for governor; James Rolph, Jr., registered as a Republican, and Francis J. Heney and Thomas Lee Woolwine, registered as Democrats. Rolph received 74,955 votes, Heney 60,662 votes and Woolwine 28,879 votes. Thus Rolph, though not the choice of a majority of the Democrats for the candidacy for governor, led the other two by a respectable plurality, which is all the law requires to nominate. However, he was also a candidate for the Republican nomination for which he was defeated. Having failed to receive the Republican nomination, he thus became ineligible under the amendment of 1917 for the Democratic nomination. In court proceedings instituted by Heney, the statute was upheld and Rolph was denied the right to have his name on the ballot as the Democratic candidate; but the court could not find any ground for the contention that as Heney had received the second highest vote he should be certified as the Democratic nominee, nor that the Democratic State Central Committee had authority to designate the party's candidate.19 Another provision of the law prohibited either Heney or Woolwine from becoming independent candidates.20 Thus in

17 Hart v. Jordan, 168 Cal. 321 (1914).

18 California Statutes, 1917, Ch. 711, p. 1357. 19 Heney v. Jordan, 179 Cal. 24 (1918).

20 California Statutes, 1913, Ch. 690, p. 1391.