Welcome to Email News: Swalwell scandal exposes flaws in top-two primary

April 20, 2026 | View in browser

By George Skelton

Capitol Journal Columnist

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.”

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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.