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The illusion of choice: Why California’s top-two primary must go

April 21, 2026

California’s top-two primary system has once again survived a legal challenge. But while the courts continue to uphold it, the more important question is whether it actually serves voters. From where I stand, it does not.

In a ruling issued April 13, U.S. District Judge Maxine M. Chesney dismissed most of the claims brought by several minor parties, including the Libertarian Party of California. The decision leaned on familiar ground, concluding that the Constitution does not require the state to create a system that produces diverse outcomes or gives smaller parties a meaningful path to the general election. That may settle the legal question, but it does not settle the practical one.

The top-two system is often defended as neutral. All candidates appear on the same primary ballot, and the top-two vote-getters advance. On paper, that sounds fair. In practice, it consistently narrows the field in a way that limits voter choice, not expands it. In California, this problem is magnified by political reality. The state is, for the most part, dominated by one party. As a result, it is not uncommon for the general election ballot to feature two candidates from that same party. When that happens, a large portion of voters are effectively left without a real choice in November. That outcome is not hypothetical; it is routine.

What makes this more troubling is when those decisions are being made. The primary election, where the field is actually reduced to two candidates, draws far fewer voters than the general election. In non-presidential years especially, participation drops off significantly. Looking at registered voters alone understates the issue. When measured against the total population eligible to vote, primary turnout in California often falls to between 15 percent and 20 percent. By contrast, midterm general elections typically see about 35 percent to 45 percent of eligible voters casting a ballot.

That gap is not minor. It is the difference between a small, less representative slice of the electorate deciding which candidates advance, and a much larger group of voters being left to choose from whatever remains. By the time most voters are engaged, the decision has already been made for them. Supporters of the top-two system argue that voters are free to participate in the primary and that the rules apply equally to everyone. That is true as far as it goes, but it ignores a basic reality: many voters do not closely follow primary elections, and turnout data reflects that. When participation is that low, the system effectively allows a minority of voters to determine the choices available to everyone else.

The court acknowledged that the system often results in general elections dominated by major party candidates. It simply found that this outcome is not unconstitutional. That may be a correct reading of the law, but it highlights the limits of relying on courts to fix what is ultimately a structural problem. This is about whether voters have meaningful choices when they are most likely to vote. An election system that consistently reduces those choices before the general election is misaligned with that goal.

Efforts are now underway to pursue ballot initiatives that would replace the top-two system and return California to partisan primaries. The goal is straightforward: ensure that voters in November are presented with a wider range of choices that better reflect the diversity of political views in the state.

If the system consistently produces elections where many voters feel they have no real options, it is worth asking whether it is working as intended. The courts may say it passes constitutional muster; that does not mean it is serving the voters it is supposed to represent.

Mimi Robson is past chair of the Libertarian Party of California

Orange County Register

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The illusion of choice: Why California’s top-two primary must go

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