Limiting choice

Why Republicans hope a top-two primary prevails

| December 19, 2013

For most Montanans, the last session of our state legislature is a distant memory. We've had better than half the year to heal from any lasting political injury, and the parade of newspaper headlines about partisan hardball in Helena won't begin marching again until January 2015.

But for Mike Fellows, chairman of Montana's Libertarian Party, forgetting hasn't been so easy. Although the session ended more than seven months ago, he hasn't been able to stop worrying about Senate Bill 408, a top legislative priority for Republicans, which passed on a party-line vote during the final week of the session.

The bill placed Legislative Referendum 127 on the 2014 ballot. The referendum asks voters to replace Montana's open primary election with a top-two primary. An open primary requires citizens to vote on a single-party ballot of their choosing and allows the top vote-getter from each political party, including third parties, to advance to the general election. A top-two primary lumps all candidates into a single primary regardless of party affiliation and allows only the top-two vote-getters to advance to the general election.

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Republicans have defended the measure as an effort to ensure that candidates who win the general election receive a majority of the vote instead of a plurality of the vote, which is sometimes the case in a three-way race between candidates from three different parties. However, if LR 127 were approved, it would likely prevent third party candidates and independents from reaching a general election. Fellows believes that this is the true motive behind the Republican push for a top-two primary.

"The independent view is going to be wiped out because they'll never make it out of the primary," Fellows told me over coffee in downtown Missoula, where he's lived since 1983.

He points out that Washington state hasn't had a third party candidate for statewide office on the general election ballot since it moved to a top-two primary in 2008. Fellows predicts that a top-two primary would have the same effect in Montana, reducing the choices available to voters in the general election. "LR 127 is designed to get rid of the competition," Fellows argues, "namely Libertarians."

At first blush, this seems like a questionable argument. After all, the Montana Libertarian Party doesn't appear to represent much of a political threat. Between 1998 and 2010, Libertarians ran in 14 statewide races and averaged just 3.2 percent of the vote. According to Fellows, the party has approximately 500 members and an email list of about 1,000 people. These aren't numbers generally associated with a political powerhouse.

Yet, a closer look reveals that the party has lately had an outsized impact on Montana's elections. In 2006, perennial Libertarian candidate Stan Jones ran for U.S. Senate and received 10,377 votes, about 3,000 more than the gap between incumbent Republican Sen. Conrad Burns and Democratic challenger Jon Tester.

Part of the post-election narrative that year was that Jones' supporters were disgruntled Republicans who thought Burns was too cozy with lobbyists. A spoiler scenario seemed unlikely to happen again. Then came the Tea Party surge in 2010 with its accompanying anti-tax narrative, which at a basic level was consistent with Libertarian values. That year, Fellows' share of the electorate in the U.S. House race nearly doubled from his previous average to 5.7 percent, foreshadowing a historic year for Libertarians in 2012.

Last year, Sen. Jon Tester beat Congressman Dennis Rehberg in the race for U.S. Senate by 18,072 votes. Dan Cox, a Libertarian newcomer, received 31,892 votes or 6.6 percent of the vote. To make matters worse for the GOP, Montana's Democratic Attorney General Steve Bullock beat former Republican Congressman Rick Hill by 7,572 votes in the race for governor. Libertarian Ron Vandevender, another first-time candidate, received 18,160 votes.

Following that election, Montana Republican Party Chairman Will Deschamps decried Libertarians as the spoilers in both races, implying that Libertarian candidates have more in common with Republicans than Democrats. But Fellows questions this assumption, saying it's unclear who would have won these races if Libertarian candidates hadn't been on the general election ballot.

He bolsters his argument by citing this year's race for governor in Virginia, where exit polls revealed Libertarian voters as younger, white, pro-choice individuals who do not identify with Democrats or Republicans. This profile also reflects a national Libertarian Party platform that shares key planks with both major parties, including a woman's right to choose and an absolute right to bear arms.

While it remains unclear which of the two major political parties has the most in common with Libertarian voters, Montana Republicans have placed a bet that a top-two primary will result in more Republicans getting elected in Montana. They're also betting that Montana voters will give them this advantage by passing LR 127 and decreasing the choices available to voters in future general elections.

Fellows, who has run for office in the last eight election cycles, is willing to take that bet. "Voters want the free market of ideas," he says. "I think Montanans are going to look past the Republican rhetoric and they're going to say 'we do want choices' in November."

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The Republicans just want to eliminate the competition. And had Rick Hill become governor you can be assured that SB 408 (LR 127) wouldn't have been pushed to the ballot for the voters to decide. SB 408 and SB 405 (ending same day registration) would have been sign into law. That's where the Republicans are upset with Libertarians because they held the balance of power in the governor's race. Of course Rick Hill had to run on his record which was brought out during the primary.

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Posted by David on 12/19/2013 at 12:34 PM

There are three states that have used a top-two primary, California (starting in 2011), Washington (starting in 2008), and Louisiana (starting in 1975 for state office and 1978 for congress, although it wasn't used in 2008 and 2010 for congress). There have been 85 instances in which a minor party member ran for federal or state office in a top-two election, and in which there were at least two major party candidates running. In all 85 cases, the minor party candidate did not place first or second and could not run in the general election. Mike Fellows is right; top-two is a method to smother minor parties.

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Posted by Richard Winger on 12/19/2013 at 12:06 PM
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