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.
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.