“Top Two” proposal offered by GOP

by Cowgirl

Rep. Scott Reichner, R-Bigfork, has introduced a bill to change our election laws so that libertarians can no longer gum up the works for the GOP. This is an effort that we all presumed would be made this session, given the humiliation suffered by Denny Rehberg when a full seven percent of right wing voters walked way from him and voted Libertarian.

James Conner at the Flathead Memo has already written a couple of good posts on this that you’ll also want to read.

And so Reichner has now been assigned by his party to propose that we replace our current primary election with a “Top Two” primary system. In this absurd scheme, there is a single primary contest in which all candidates for a given office compete against each other, regardless of their party affiliation. Every voter gets the same primary ballot. The top two vote getters then move on to the next round–the general election–where they face off.

Obviously, a Top Two system is attractive to the GOP because it would stem the siphoning off of votes by thirdy party candidates such as Libertarians and Constitutionalists. This phenomenon has cost the GOP numerous victories in recent years. The GOP is in turmoil, having now been without a Senate or Governor’s seat in Montana for seven years. Lower statewide offices have likewise been held mostly by Democrats in the last decade. This, plus the the fact that the black fella keeps winning presidential elections, has all angered Montana Republicans and thrown them into disarray. So they are in need of a fix for their Libertarian troubles.

One strange feature of a Top Two primary is the possible scenario in which the top two vote getters are of the same party. In this event, two candidates of the same party end up facing off in the general. And it would more likely be two Republicans than two Democrats, since substantially more Republicans vote in Montana primaries than Democrats.

Alas for Reichner and his desperate party, the Top Two system does not comport with the US Constitution. Here is a legal analysis of his bill, prepared by the Legislature’s own attorneys, describing how the Top Two scheme has been held unconstitional in many cases where it has been attempted, and is likely be unconstitutional as drafted by Reichner. So legally, it would appear, the bill, HB 436, ought to be dead on arrival. And even if it passes out of the legislature, it will be obviously be vetoed.


36 Comments on "“Top Two” proposal offered by GOP"

  1. We can only trust that the House State Administration Committee will see this insane bill for what it is, and deal with it appropriately. I understand that other states do have laws in place that are slightly similar to this proposal, but I have not taken a close look at them. My guess is that where ever they have enacted anything like this, it has been due to the promotion of legislators who are members of ALEC. As you know, Representative Reichner is the State Chairman of ALEC. (google ‘ALEC Exposed’)

    • Three states have top twos: California, Washington, and Louisiana. HB436 is a bastardized version of Louisiana’s jungle primary, in which the fall election serves as a primary of sorts: candidates who received a majority are elected, otherwise the top two match up in a runoff a month later.

      The hearing for HB436 is scheduled for 19 February.

      • If they followed the California laws for election there wouldn’t be a GOP anymore. California has a democratic\ independent majority. Republicans are in third place.

        • An interesting comment. Is no GOP the goal?

          • nice catch, BK: help us draw and quarter the earth hater party. dan cox for senate.

          • Norma Duffy @ilikewoods | February 14, 2013 12:18 PM at 12:18 PM |

            No the intent is to elect the best person to the job. But you see the tea-party made the GOP so extreme no one will even vote in most primaries for one…. Let along the general anymore.

            It means an Independent has just as much pull if he catches on, quick enough early in the race, Party affiliation is kinda moot with this kind of law! People didn’t have to pick a republican.

            These particular Election laws will bite them in the ass, they favor moderates, and the only moderates left in big numbers are Democratic and Independent voters.

            Watch people jump the Conservative ship if this becomes election law!

            • Norma Duffy don’t you fib to me: you know darned good and well that you’d love the see the GOP quartered and their entrails fed to the crows just like i would.

      • Louisiana does not have a primary, so all candidates run off in the general. The winner will have to get 50 percent, so in many cases there is a top two runoff, unless a candidates gets the 50 percent.

  2. Dear Cowgirl,
    Not so fast. In 2006 The US Supreme Court upheld Washington’s top two as constitutional. Washington modeled theirs after Louisiana, the first top two. California followed. WA and CA went this route because D’s and R’s sued to eliminate the open primaries of both states, first CA, then WA, and were successful, even though WA’s open primary was done by citizen’s initiative and stood for over 70 years. HB436 should not be treated lightly. Perhaps it’s time for minority party affirmative action on the state and federal level to counter the constant power grab of the R’s and the D’s

    John Marshall

    • Dear Cowgirl,
      Almost forgot to mention one reason behind HB436. In May 2012 Federal District Judge Sam Haddon (Great Falls) struck down Montana’s 2007 law requiring independent candidates to get their signature petitions in by early March, versus the old date of one week before the June primary. He cited the current law in violation of the 14th Amendment. The suit was brought on by Steve Kelly of Bozeman who wanted to challenge Baucus as an Independent on 2008. Now the is no time restriction for signatures for independent candidates unless this legislature addresses it. This bill as an attempt to do that, in the hopes of keeping Independent candidates off the general election ballot, by forcing them into the June primary.

      John Marshall

  3. My quick reading of this bill causes me concern primarily in two areas.
    1. sections 20, 25 and 26 indicate that a candidate receiving more than 50% of the vote in the primary is automatically declared the winner of the general election. While there are some caveats regarding only two candidates (both advance), it would seem to favor the Republican advantage in primary elections.
    2. Language appears to favor political parties with county organizations and disfavor independant or third party candidates. Perhaps I read that wrong and am open to correction.

    While there appears to be some good things in this proposal, it also appears to need additional thought and consideration. I envision unintended consequences and less, rather than more, voter choice. It would be more appropriate to study this during the interim rather than during a Session.

    Finally, perhaps the “top two” approach would be better served if all elections for any office in Montana were non-partisan.

  4. Interesting to think how this would impact Schweitzer and Baucus if they butted heads in 2014. They would each get 50 pcnt of the Democratic primary vote. A bunch of no names would all split the Republican primary vote. Plus, there’d be tons of cross voting (moderate Repubs who would normally get a Republican primary ballot but would weigh in on the Schweitzer/Baucus competition if there were only one ballot). In this case I can easily see the top two being Schweitzer and Baucus. That would be a riot, especially given that the author of the system was a Republican.

  5. Libertarians are not costing Republicabs votes. If Republicans had better candidates then maybe they would win. It looks like Daines would have better challenger then Rehberg. You’d think that the Libertarian vote in California would be better then the LP vote in Montana. Because of top two, that isn’t the case. How many people will attend the hearing to voice their concerns?

  6. Nothing on Hilltop? Figures.
    And I didn’t like the black guy cheap shot either. I don’t dislike Obama because of his paint job. I dislike his political philosophy. Intensely.

    • His “paint job?” Not to lecture, but that insinuates that color is superficial and race in the U.S. Is of little consequence. Are women just outfitted with difernt equipment, too? People in the mid-1800s didn’t have anything against Lincoln or people of color, either; they had real policy differences with the Whitehouse. They worried about the price of commodities and individual property rights. Sorry. Maybe you aren’t typical, but I have a hard time trusting your cohort.

  7. Larry Kralj, Environmental Rangers | February 14, 2013 7:10 PM at 7:10 PM |

    WTFaaaaaaaa? How could they beat us to the punch on this one?! Where is Discernbly Turgird Man? Where is Pope Bennett-the-Dick?? God doan LIKE to see this! Come ON, nutjobs! Do your duty!


  8. The Dark Money that pulled that last-minute stunt to reelect Tester with a minority of the vote (he had lost progressive support) will, figure something else out to keep right wing Democrats in power. Who was it said that the best way to control the opposition is to lead the opposition? That’s why you Democrats, even though you tend to be more centrist or even somewhat liberal, always wind up with right wingers like Baucus and Tester in charge on your party. That’s where money is invested.

    The question is, in a two right-wing party situation, where do progressives go? Baucus seems to lean towards throwing us in jail, but the best answer I figure is to go fishing on Election Day.

  9. As a long time (1976) libertarian, former LP candidate for SOS in OR (2000), and WA resident, let me clarify a little wrt the WA situation. First, I am at odds with most LPWA members in that I think our Top Two system is just fine. Also, voter registration does not include party affiliation. The major issues I have had with ballot access is that minor party and independent candidates are not treated equally with major party candidates. Also, I see no rational or moral reason why the taxpayers should fund the processes of a private organization, a political party. The WA system resolves both my issues.

    All candidates have equal access to the “primary” or first round ballot. Party preference may be stated but this does not mean that the party organization supports the candidate. Hence the issue with freedom of association is avoided. The taxpayers are not supporting any particular political party.

    Presidential primaries are an issue but that is being resolved by modifications to the law this year.

    The reason that LPWA members dislike Top Two is that it is unlikely that an LP member makes it to the “general” or second round of voting. My position is that, after fair and equal ballot access, it is up to the voters, the message, and the candidate and let the chips fall where they may.

    I heartily recommend that MT follow suit along these lines rather than those indicated in the article.

Comments are closed.