Leading Montana Political Blog “Montana Cowgirl” Blasts Montana Top-Two Open Primary Bill

On February 13, Montana Cowgirl blog posted this article about HB 436, the Montana bill to convert elections to a top-two open primary system. Montana Cowgirl is well-known, leans to Democrats, and is run by an anonymous individual or group. The article takes the tack that the Montana bill exists to keep Libertarian Party candidates off the November ballot.

In every state in which top-two advocates have been active, the rationale for the system is different. The idea was born in Louisiana to keep conservative Democrats in power. Then it was created in Washington state on the theory that the top-two open primary would be a substitute for the blanket primary (which had been invalidated in court on freedom of association grounds). It was promoted in California on the grounds that it would injure “extreme left” Democrats and “extreme right” Republicans. The Arizona top-two was promoted as a way to decrease the power of conservative Republicans. Now the story about the Montana effort seems to be that it will help Republicans win. Thanks to Rob Richie for the link.


Leading Montana Political Blog “Montana Cowgirl” Blasts Montana Top-Two Open Primary Bill — No Comments

  1. Actually, they once traced the IP address to someone who works for the MT State Gov. That seems to be the best answer, to who this person is.

  2. Democrats want libertarians to run so candidates, like Senator Tester and now gov Bullock had a chance to win.

  3. The purpose of “top-two” in every case is to create a one-party state where the dominant political bosses can control the entire electoral process with a single, state-run party.

    Having a single primary will always lead to a single party. Since everyone elected will be spawned from the single party, they will be able to consolidate their power with the gradual tightening of the state control and limitations on the electoral process within the single state controlled party culminating in the end of free elections.

    “Top-two” ineluctably leads to a single, state controlled party just as in the old USSR.

    “Top-two” is the wet dream of fascist-socialists, who while posing as reformers, spout long-winded legalistic obfuscatory nonsense to hide their evil intent.

  4. Federal District Judge Coughenour ruled in the Washington State case that Washington’s systems where any voter could vote for precinct committee officers of any major party was unconstitutional, and enjoined its use. AFAIK, Washington is still under this injunction.

    The Washington legislature remedied this problem by using a system almost identical to that proposed in HB 436. If anything, the system proposed in Montana is more rigorous than that used in Washington, since it requires a voter to affirmatively indicate their party affiliation on the ballot. In Washington, voting for a candidate affiliated with the party implies affiliation with the party.

    AFAIK, nobody has challenged this new system. It was not part of the appeal of the Libertarian or Democratic parties to the 9th Circuit which upheld the constitutionality of Washington’s Top 2 Open Primary. Both Washington and Montana are in the 9th Circuit.

    The legal analyst was simply being cautious, and also explained that HB 436 itself has a remedy.

    Section 25 might be unconstitutional – but a quite similar system was the remedy used in Washington. And if Section 25 is ruled unconstitutional, Section 26 goes into effect. It provides for the same system that Montana currently uses for voting for party officers, the voter selects the party ballot and discards the others.

  5. re: @5

    Note Riley’s use of insignificant legalistic detail to distract and obfuscate.

    This is the mark of evil intent.

    “Top-two” is evil.

    Tell the world.

  6. #8 “Cowgirl” had written:

    “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.”

    Cowgirl has failed to understand what the legal analysis actually said. It is understandable, because Richard Winger had made the same mistake – though he recognized that the constitutionality issue was limited to the election of party officers.

    If Richard Winger were to read sections 25 and 26 of the bill and notice that they both add the same section to the code, and then read sections 106, 107, and 108, and then re-read the legal analyst’s note again, he would see that the drafters had anticipated the possible problem. And as I noted, their solution is quite similar to that enacted in Washington to remedy the only constitutional issue that a court has identified with Top 2.

  7. This is a great blog- read by Montana reporters and politicians- I’ve been a reader for a couple of years.

  8. #7

    “I think it is accurate to characterize Edwin Edwards as a Democrat who never let a pathological fear of breaking the law deter him from seeking self-advancement.”

    Edwin Edwards was a populist and self-styled reformer with an over-developed ego. Maybe he thought he could be President.

    You may recall the Open Primary where Buddy Roemer defeated Edwin Edwards. There was a debate, and the Democratic candidates were asked whether they would support Edwards in a runoff against a Republican.

    Most of the other candidates were hemming and hawing. Roemer said that sometimes you have to do what is right and slay the dragon. The next day, while the other candidates were trying to explain what they had meant by their non-answer, Roemer was printing “Slay the Dragon” buttons, and went on to finish first in the Open Primary, and Edwards withdrew from the runoff.

    This illustrates what special interest groups, such a public-sector unions, fear and loathe about the Open Primary. They can’t control the partisan primary, and then expect voters to simply vote the party label in the general election.

  9. #7

    For additional information, please see:


    “Given the plaintiffs, this may seem like a quirky case, but the issues are quite serious. Montanans considering Scott Reichner’s jungle primary (HB-436) might want to keep an eye on Chamness v. Bowen.”

    Unlike California, Montana does not have party registration for voters.

    The SOS in California misinterpreted the clear language of the implementing legislation (SB 6) and forced Michael Chamness to run as “No Party Preference”. Chamness chose an incompetent attorney, Gautam Dutta, who failed to make the simple argument that Chamness should be allowed to run as Prefers Coffee Party, and instead claimed that Chamness should be an “Independent”.

    Unfortunately for Dutta, the 9th Circuit judges had actually read ‘Libertarian Party v Eu’ and saw that he was misinterpreting that decision.

    As for applicability of the case to HB 436: None.

    Section 22 specifically provides that a candidate doesn’t have to identify an established party for his party preference. If someone wants to run for office preferring the Cowgirl Party or Flathead Party they may do so.

    There are no restrictions on write-in voting in the primary or the general election, and the bill eliminates a current 5% threshold for advancement to the general election ballot, simplifies filing for those unable to pay the filing fee:

    “Indigent candidates. If an individual is unable to pay a filing fee, the filing officer shall accept the following documents in lieu of a filing fee: a statement that the candidate is unable to pay the filing fee.”

  10. HB 436 has a hearing on February 19 before the House State Administration committee.

    If I were going to have the Secretary of State (or someone from her office) testify, I would make sure that they are prepared to answer the following questions:

    Given the federal district court decision in ‘Idaho Republican Party v Ysursa’, do they think that there is any way that they could successfully defend a similar challenge to the Pick-A-Party primary in Montana?

    What is the material difference between the Pick-A-Party primary previously used in Idaho, and that currently used in Montana?

    If Montana were to lose a legal challenge, are there any alternatives other than the Top 2 Open Primary, which preserves ballot secrecy, and a system of party registration, where the State maintains records of the political beliefs of its citizens along with a closed primary as has been imposed in Idaho?

    The Montana constitution provides that legislative vacancies be filled by special election, unless the legislature by statute provides a different procedure. Montana has provided for an elaborate and complex replacement scheme that depends on political party committees. What would be the costs involved with going to a simple special election, such as is used to fill a congressional vacancy?

    If timeliness is of issue (if the legislature is in session at the time of the vacancy), why not convene a random sample of voters from the voting rolls to make the appointment? Wouldn’t this procedure be more consistent with the principle of the Top 2 Open primary, where the legislator represents the people of the district, rather than party that nominated him?

    Why not have political parties choose their party committees at privately-funded conventions. Require a quorum at a county convention of (1/5 of 1% of the registered voters, or 5 persons, which ever is greater). Have the voters sign in, and then take the roster by the county election administrators to verify. Is there any system of government-organized election of party officials that would survive a legal challenge?

    If a state party convention has 1/5 of 1% of the registered voters (including those who participated at their county conventions), then let the party have a presidential nominee (this is 1363 voters statewide).

    Why should Montana fund a presidential preference primary, particularly if it is difficult to administer in conjunction with a Top 2 Open Primary? In 2012, the Republicans ignored the primary; with no public disclosure of party affiliation, the presidential primary violates Democratic national committee rules, and the Libertarians made their presidential nomination in May.

    A primary in June is going to be ignored, particularly in a small State such as Montana. If the presidential primary is separated and moved earlier, there is the cost of two elections. If it is eliminated, then the primary can be moved to August, reducing the gap between the primary and the general election.

    Aren’t the candidate replacement procedures inconsistent with the Top 2 Open Primary, since the claim is that a candidate preference does not indicate endorsement by the party, yet the political parties are given replacement rights?

    Instead, why not if a candidate dies after the filing deadline, and before the primary, the primary is voided, and the office is filled at the general election, with a runoff if necessary. If a selected candidate dies after the primary, void the primary and fill the office at the general election, with a runoff if necessary. If a candidate selected to advance, or who is elected, is found ineligible, start over with a new election.

  11. #15, have you considered living dangerously, and buying an airplane ticket to Helena, Montana, and testifying yourself at that committee hearing? You are so interested in this topic, you would probably enjoy doing that.

  12. #16 I doubt that even if I were to inform the Secretary of State that I was coming, that she would be prepared to address the issue of ‘Idaho Republican Party v Ysursa’ and whether it applies to Montana. What do you think?

    Nor would she address the issue of switching to special elections to fill legislative vacancies. Have you compared the amount of code used to describe filling of vacancies in Congress vs. filling vacancies in the legislature? You complained about the length of the bill, yet bunches of it were trying to rewrite the code for filling vacancies.

    If I were going to file suit on political association grounds, I would attack it based on the procedures where a candidate or official is treated as an official representative of a party for certain purposes, even though the underlying principle is that they are not.

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