Scott Reichner’s top two primary bill was introduced yesterday, given the bill number HB-436, and assigned to the state administration committee. The legal note (PDF) indicates that:
Section 25 of LC0611 regarding ballot arrangement may raise potential constitutional conformity issues with the right to freedom of association under the First Amendment of the United States Constitution.
There’s more in the legal note, which I encourage you to read fully. HB-436 tries to avoid the features that caused the U.S. Supreme Court to declare Washington’s blanket primary unconstitutional. The legal note cites the salient cases.
Writing in 2004 about California, Hill and Ulrich, Top two primary is a horrible idea, explained the difference between blanket primaries and top twos:
The initiative would adopt a version of Louisiana’s “top-two” primary which, like the blanket primary, allows voters to choose any candidate, regardless of party, in primary elections for state and federal office, except president. But there are important differences with the blanket primary that proponents are fudging.
Under the blanket primary, the highest vote-getters from each party compete in the November election —— Democrats, Republicans and third-party candidates. But with the top-two primary, only the top two go to a runoff. And the top two can be from the same political party.
In Louisiana, the two finalists often are from the same party — two Democrats in a liberal district, or two Republicans in a conservative one. Third-party candidates never appear on Louisiana’s final ballot.
California and Washington both use top two primaries, and several other states use top twos for special elections. HB-436, however, most resembles Louisiana’s notorious jungle primary:
As in the presidential electoral system in France, all candidates for an office in Louisiana run at once without a separate party-specific primary. If any one candidate receives more than 50 percent of the vote, the election is over. If not, the top two face off in a runoff election a month later.
Had a Louisiana top two been in effect in Montana 2012 primary for attorney general, Republicans Tim Fox (34.3 percent) and Jim Shockley (25.1 percent) would have advanced to the general election. In the primary for U.S. Senate, Democrat Jon Tester and Republican Denny Rehberg would have advanced to the general election, but Libertarian Dan Cox would not have appeared on the fall ballot. And in HD-4 (Whitefish), Republican Tim Baldwin, who received 54.6 percent of the primary vote, but only 46 percent of the general vote, would have been elected to Montana’s House of Representatives.
HB-436 would protect both major parties from spoiler third party candidates in the general elections. Democrats would be spared competition from parties to their left, such as the Green Party (remember Ralph Nader?), while Republicans would be spared competition from parties to their right, such as the Libertarian and Constitution Party (remember Rick Jore?). At the moment, that would help Republicans more than Democrats. In the 2012 general election, Denny Rehberg probably would have been elected U.S. Senator, Rick Hill probably would have been elected governor, and no one would have been on the ballot for HD-4 because Tim Baldwin would have won the seat by winning a majority of the votes in the primary.
HB-436 is probably the most radical departure from the norm in the history of election law in Montana. And in my opinion, it’s not just the most radical, but the worst.