As expected, Montana Representative Scott Reichner (R-Bigfork) has now introduced his top-two open primary bill. See here to read the bill, HB 436.
Even though the bill is very lengthy, it seems to have skipped over two potential problems: (1) It says that anyone who gets 50% or more of the vote in the June primary is elected. This proposal violates federal law, as applied to congressional elections. The U.S. Supreme Court ruled unanimously in Foster v Love, 522 U.S. 67 (1997) on this point. The bill has an exception but the exception only relates to county office, not Congress; (2) the bill does not re-define “political party”. The existing definition of “political party” is a group that “had a candidate for a statewide office who received a total vote that was 5% or more of the total votes cast for the successful candidate for Governor in either of the last two general elections” or a group that submits 5,000 signatures. But under the bill, parties would no longer have candidates, except for President, so presumably parties would go off the ballot unless they meet the vote test for President.
The bill has an provision that says when two or fewer candidates file for an office, there is no primary and the two (or fewer) candidates for that office only run in November.
The bill handles presidential primaries, and elections for party office, by providing that the section of the ballot concerning those two offices should be somewhat separate, and voters could only vote in that section of the ballot if they place a check-mark on the ballot indicating membership in one particular party. The legislative analyst has suggested that this part of the bill may not be sufficiently protective of party freedom of association and that this part of the bill might be held unconstitutional.
HB 436 is very lengthy and it hasn’t been easy to analyze it with great care; perhaps commenters who are interested in details and who are careful readers will have greater insight into the bill.
“HB 436 is very lengthy and it hasn’t been easy to analyze it with great care; perhaps commenters who are interested in details and who are careful readers will have greater insight into the bill.”
My response: Screw the whole freaking bill!
Libertarians, Greens, Constitutionalists, Independents, and all others who value free & fair elections living in Montana, get on your phones now. Email your Senator & Representative. Kill this bill!
This is one bill that should never have been introduced in the first place. It makes me believe that the Democrats and Republicans in Montana didn’t overlook the potential issues…they intentionally crafted the bill this way. At least it looks that way; I could be wrong, of course.
I concur with 1&2. Folks in Montana who care should start mounting a campaign to kill this bill before more of what’s left of American democracy gets destroyed. I’d call too, except I live in Illinois, not Montana.
The bill is quite lengthy because it changes a bunch of related provisions where “nomination” is replaced by “candidacy”. They appear to have done a word search for “nomination” and edited its use.
So for example, a recall petition is filed with the official who received the “declaration of candidacy” rather than “declaration of nomination”. So if candidates for county dogcatcher file with the county clerk, then a recall petition of an elected dogcatcher would also be filed with the county clerk.
Whoever drafted the bill took the opportunity to also make style changes to the statute.
Montana, like Washington, fills legislative vacancies by appointment by the county commissioners. And like Washington, the party central committee provides the list of replacements that the county commissioners may choose from. The bill says that for this purpose, the party preference of the legislator who caused the vacancy dictates which party has a role in the appointment process.
You’ve misinterpreted the legislative analyst’s comments about presidential primaries and party official elections.
Currently, Montana uses a Pick-A-Party primary. Voters are given a separate ballot for each party, they vote one and discard the other(s). If there are nonpartisan races, they may be included on each party’s ballot or a separate ballot may be used for nonpartisan races, as long as it has a distinctive appearance, etc.
HB 436 provides two versions of MCA 13-10-209 regarding the form of the primary ballot. These are in Sections 25 and 26. See also Sections 106, 107. and 108 regarding whether Section 25 or 26 applies.
Section 25 provides that the partisan portion of the ballot is in a separate section, and a voter marks his choice of party on the ballot.
When Washington’s provisions for electing party officials on a Top 2 primary ballot were enjoined, the legislature substituted a version of the ballot that is quite similar to that proposed in Section 25 (in Washington, instead of selecting the party, and then the candidate, a mark by the candidate implies selection of party). AFAIK no one has challenged the constitutionality of Washington’s new law which was used in the 2012 primary.
But in case the version of MCA 13-10-209 that is in Section 25 is ruled unconstitutional, HB 436 provides an alternative in Section 26. This version would use separate ballots for the party officers and presidential primary.
Thus while it is possible that the version of MCA 13-10-209 in Section 25 of the bill is unconstitutional, the bill provides a version that is more likely to be held constitutional.
Montana would be better off simply eliminating election of party officials in the primary. It is unconstitutional for them to mandate use of the primary for that purpose, and is inconsistent with MCA 13-38-101(2).
It would also be wise to get rid of the presidential preference primary. Nobody cares about a presidential primary in June, much less one in Montana. In 2012, the Republican party did not use the primary results for delegate selection; a private selection of party violates the Democratic national party rules, and the Libertarian Party nominated Gary Johnson in May.
You are misinterpreting the exception for county offices. Those exceptions apply when a vacancy in county office is being filled at a general election.
In case of a vacancy in a county office, an appointment is made until the next general election (if more than two years remain in the original term of office).
If the vacancy occurs in time for filing for a primary, then a regular primary is held. Currently this is a partisan primary, but would be replaced by a Top 2 primary. If the vacancy is too late for a primary (the filing deadline for an early June primary is in March), then under current law, the party committees make the nominations for the general election. I don’t understand what the replace mechanism is. I think the drafter got confused with the difference between a vacancy in office, and a vacancy in nomination. Since there aren’t nominations for a general election, there is no reason to have political parties involved.
“(1) It says that anyone who gets 50% or more of the vote in the June primary is elected. This proposal violates federal law, as applied to congressional elections. The U.S. Supreme Court ruled unanimously in Foster v Love, 522 U.S. 67 (1997) on this point. The bill has an exception but the exception only relates to county office, not Congress.”
The law says that the Top 2 candidates in a Top 2 primary advance to the general election. It then says separately that if a candidate receives 50% of the vote he is elected.
There is no reason to believe that this is not legal for non-congressional offices.
The severability clause (Section 105) says that if part of the act is invalid for one or more applications, it remains valid for other applications.
So even if it is not valid for congressional elections, it remains valid for all other elections.
The severability clause also says that if part of the act is invalid, the rest of the act that can be severed remains valid.
“13-1-103 (2) In a top two primary, the two individuals receiving the most votes are selected to advance.”
This is severable from the provision for immediate election in case of majority.
So for congressional elections, the Top 2 would advance. And it is possible that Congress will modify 2 USC 1 or 2 USC 7.
2) the bill does not re-define “political party”. The existing definition of “political party” is a group that “had a candidate for a statewide office who received a total vote that was 5% or more of the total votes cast for the successful candidate for Governor in either of the last two general elections”
The bill repeals MCA 13-10-601, which is the section that you were quoting from. It does not define a “political party”, but rather which parties are required to nominate by primary.
It is not clear how a party would qualify to hold a presidential primary under the bill. For a Top 2 office, a candidate is not required to express a preference for an established party. So it is like in Washington (and would be in California but for the maladministration of Debra Bowen).
But if two or fewer candidates file for the primary, then wouldn’t the 50% rule apply. Republicans would still like to see their name in the primary.
#9 Under the Montana law, if one or two candidates file for the primary, then the race is not on the primary ballot.