Updated to clarify top two restrictions. State Representative Scott Reichner (R-Bigfork, HD-9) is on the verge of introducing a Top Two primary bill that would radically change how we choose candidates in Montana, strongly tilting the playing field toward the Republican Party. Montana Street Fighter reported Reichner’s intentions on 24 January, in the context of a potential Reichner bid to unseat Democratic U.S. Senator Max Baucus in 2014, but the latest draft of the legislation is much more than an attempt to keep the Libertarians (whom Republicans believe steal Republican votes) off the general election ballot.
Reichner’s top two primary scheme seems to have two main objectives:
Reichner’s top two primary does more than just narrow the field for an office to two candidates who square off in the general election. It also declares that a candidate who receives a majority in the primary wins the office outright and eliminates that office from the ballot in the general election. If three or more candidates file for an office, the primary becomes the de facto general election, and the general election becomes a runoff election for candidates who fail to secure a majority in the primary election. If two or fewer candidates file for an office, they are omitted from the primary ballot and advance straight to the general election.
Here are the salient sections:
Section 20. Section 13-1-103, MCA, is amended to read:
13-1-103. Determination of winner.
(1) The individual receiving the highest number of valid votes for any office at an a general election, nonpartisan election, or partisan primary election is selected to advance or elected or nominated to that office.
(2) In a top two primary, the two individuals receiving the most votes are selected to advance.
(3) Except as provided in 7-4-2106(3)(b) and 7-4-2206(3)(b), if an individual in a top two primary receives more than 50% of valid votes cast in the primary race, that candidate is immediately declared the winner of the office, and the office may not appear on the general election ballot.
♦ ♦ ♦ ♦ ♦
Section 32. Top two primary restrictions — exceptions. (1) (a) If two or fewer candidates seek advancement to the general election, those candidates shall immediately advance without appearing on the primary election ballot.
Given Montana’s history of low Democratic primary turnout, Section 32(1) invites Republicans to have a ringer file as a Democrat, and you can bet the ranch that will hgappen. Once a third candidate files, Section 20(3) is activated. There will be very few offices for which only two candidates file.
Table 3 provides the line numbers for other interesting sections in this unofficial PDF of the draft legislation.
Had Reichner’s top two been in effect in 2012, Tim Baldwin would be representing HD-4 (Whitefish); see Table 2.
In addition, it’s highly likely that Denny Rehberg would be Montana’s junior U.S. Senator, and Rick Hill would be governor. Jon Tester and Steve Bullock won their elections with pluralities. Had Libertarians not been on the ballot, it’s likely that many Libertarians, enough perhaps to have flipped the elections, would have voted for the Republican candidates.
This should scare the bejesus out of Democrats, who should counter with instant runoff voting.
| Office | Dem Primary | GOP Primary | Dem General | GOP General | Lib General |
|---|---|---|---|---|---|
| Senate | 88,720 | 138,711 | 236,123 | 218,151 | 31,892 |
| Congress | 80,824 | 116,275 | 204,939 | 255,468 | 19,333 |
| Governor | 88,561 | 136,060 | 236,450 | 228,879 | 18,160 |
| Sec State | 85,189 | 120,078 | 245,024 | 214,976 | 16,622 |
| Att General | 83,183 | 121,582 | 218,228 | 252,916 | |
| Auditor | 83,570 | 105,110 | 247,447 | 215,743 | |
| OPI (Schools) | 82,788 | 105,442 | 235,397 | 233,166 | |
| Total | 592,835 | 843,258 | 1,623,608 | 1,619,299 | 86,007 |
| Mean | 84,691 | 120,465 | 231,944 | 231,328 | 21,502 |
| Median | 83,570 | 120,078 | 236,123 | 228,879 | 18,747 |
Green background: advance to general in top two system.
Red background: elected to office in top two system; no general.
Cyan background: winner in general under current system.
| Candidate | Party | Primary | Primary % | General | General % |
|---|---|---|---|---|---|
| U.S. Senate | |||||
| Tester | D | 88,720 | 39.0% | 236,123 | 48.6% |
| Rehberg | R | 105,632 | 46.4% | 218,051 | 44.9% |
| Teske | R | 33,079 | 14.5% | ||
| Cox | L | 31,892 | 6.6% | ||
| Total | 227,431 | 486,066 | |||
| U.S. House of Representatives | |||||
| Gillan | D | 25,077 | 12.7% | 204,939 | 42.7% |
| Rankin | D | 9,382 | 4.8% | ||
| Smith | D | 12,618 | 6.4% | ||
| Strohmaier | D | 11,366 | 5.8% | ||
| Stutz | D | 2,586 | 1.3% | ||
| Wilmer | D | 14,836 | 7.5% | ||
| Ward | D | 4,959 | 2.5% | ||
| Daines | R | 82,843 | 42.0% | 255,468 | 53.3% |
| Brosten | R | 21,012 | 10.7% | ||
| Melkus | R | 12,420 | 6.3% | ||
| Kaiser | L | 19,333 | 4.0% | ||
| Total | 197,099 | 479,740 | |||
| Montana Governor | |||||
| Bullock | D | 76,738 | 34.2% | 236,450 | 48.9% |
| Margolis | D | 11,823 | 5.3% | ||
| Fanning | R | 3,087 | 1.4% | ||
| Hill | R | 46,802 | 20.8% | 228,879 | 47.3% |
| Livingstone | R | 12,038 | 5.4% | ||
| Lynch | R | 8,323 | 3.7% | ||
| Miller | R | 24,496 | 10.9% | ||
| O'Hara | R | 16,653 | 7.4% | ||
| Stapleton | R | 24,661 | 11.0% | ||
| Vandevender | L | 18,160 | 3.8% | ||
| Total | 224,621 | 483,489 | |||
| Montana Secretary of State | |||||
| McCulloch | D | 85,189 | 41.5% | 245,024 | 51.4% |
| Johnson | R | 66,148 | 32.2% | 214,976 | 45.1% |
| Aspenlieder | R | 27,204 | 13.3% | ||
| Lovass | R | 18,652 | 9.1% | ||
| Turiano | R | 8,024 | 3.9% | ||
| Roots | L | 16,622 | 3.5% | ||
| Total | 205,217 | 476,622 | |||
| Montana Attorney General | |||||
| Bucy | D | 42,035 | 20.5% | 218,228 | 46.3% |
| Laslovich | D | 41,148 | 20.1% | ||
| Fox | R | 70,239 | 34.3% | 252,916 | 53.7% |
| Shockley | R | 51,343 | 25.1% | ||
| Total | 204,765 | 471,144 | |||
| Montana State Auditor (no primary under top two) | |||||
| Lindeen | D | 83,570 | 44.3% | 248,447 | 53.5% |
| Skees | R | 105,110 | 55.7% | 215,743 | 46.5% |
| Total | 188,680 | 464,190 | |||
| Montana Office of Public Instruction (no primary under top two) | |||||
| Juneau | D | 82,788 | 44.0% | 235,397 | 50.2% |
| Welch | R | 105,442 | 56.0% | 233,166 | 49.8% |
| Total | 188,230 | 468,563 | |||
| HD-4 Montana House of Representatives | |||||
| Lieser | D | 463 | 28.8% | 2,765 | 54.0% |
| Muir | D | 265 | 16.5% | ||
| Baldwin | R | 877 | 54.6% | 2,355 | 46.0% |
| Total | 1,605 | 5,120 | |||
| Line Number | Description |
|---|---|
| 536 | Defines partisan primary |
| 555 | Defines primary |
| 571 | Selection to advance to general election |
| 578 | Defines top two primary; elections for precinct committee persons and U.S. President excepted |
| 595 | Determination of winner |
| 599 | Winner with majority escapes general |
| 594–601 | Section 20 |
| 644 | Top two party preferences |
| 723 | Party prefs appearing on top two ballot |
| 734–738 | Top two winner with majority escapes general election |
| 789 | Top two candidates preferred party |
| 800–804 | Same result as 734-738 |
| 961–973 | Sec. 32, restrictions on top two primary |
| 1905–1908 | Communications requirements |
| 2267 | Contingent voidness for Sec. 25 (begins on line 717); if courts void Sec. 25, law defaults to Sec. 26 |