Top two primary AFTER party primaries (Duverger's dream): Would this be legal?

[Kevinstat]

Hello.  This idea is pretty simple.  Have normal party primaries (open or closed, with a runoff or without one), allow Independents or members of parties that don't hold primaries to file (of course), but then, after the primaries for those parties that have them but before the General Election, hold a "top two primary" or "qualifying primary" like in California or Washington State whereby the top two finishers would advance to the general election.  This would, like the top two primaries, tend to exclude candidates outside of the two major parties (with exceptions most likely being in areas that overwhelmingly favor one party where an energetic independent runs, perhaps becoming the de facto nominee of the minority party).  But it would avoid the possibility of a D v. D or R v. R primary, and the risk of a party that would probably win a seat in a D v. R general election losing it in the primary because of different turnout patterns and having too many candidates splitting the vote from that party's supporters, as nearly happened in CA-31 and the CA Comptroller's race this year.  This qualifying primary could be held shortly after the partisan primary date (or primary runoff date if the state adopting this method had and was keeping a primary runoff), so as to give a boost to primary winners and make it less likely for independent/3rd party candidates to have a chance to gain traction.  Like I alluded to in the subject heading, it would be likely to have very "Duvergerian" outcomes (maintaining and even reinforcing the two-party system).

This idea might not sound much like electoral reform, but what I'm most curious about is: Would it be legal?  Georgia has runoffs in the General Election if no candidate gets a majority of the vote.  This would be similar to that except that the "runoff" would not be conditional upon no candidate getting a majority and would thus become the General Election (and it would likely be held (it might have to be for Congressional Elections) on the first Tuesday after the first Monday in November).  Do General Elections California's and Washington State under the "top two" primary method allow for write-in votes.  Do General Election runoffs in Georgia (or other states with a General Election runoff)?  If the answer is no in one of the states with either of those two systems, then the General Elections in this method might not have to allow for write-ins either.  As to what happens when only one candidate, from any party and including any Independents, files to run for an office, you could do whatever California and Washington State do in that situation.  I seem to remember reading of a 1% of the vote threshold for the second place candidate to advance to the General Election in one of those two states (or maybe that was in Nebraska for the Legislature and other offices with non-partisan elections but with a "qualifying primary").  Are write-in votes allowed in the General Election in that case?  Probably best to allow for write-ins so you won't have cases of elections where the outcome is predetermined as long as one person votes for the one candidate on the ballot (although I know at least in the 1990s in Louisiana unopposed candidates would be declared elected and no election would need to be held).

I'm not saying this would be a good method (although in Maine in 2010 it would probably have prevented Eliot Cutler's late surge and made it so at least the eventual winner (probably LePage over Libby Mitchell, a terrible candidate for that year) wouldn't have had a vote percentage like between 38 and 39 percent that causes the heads of those who hate the winner to explode).  But I'm curious as to what people think of it's legality.

[jimrtex]

Hello.  This idea is pretty simple.  Have normal party primaries (open or closed, with a runoff or without one), allow Independents or members of parties that don't hold primaries to file (of course), but then, after the primaries for those parties that have them but before the General Election, hold a "top two primary" or "qualifying primary" like in California or Washington State whereby the top two finishers would advance to the general election.

I don't see why it would be illegal.

The version of Top 2 that is on the Oregon ballot this November permits parties to have their endorsement appear on the ballot.  That is, the ballot contains two pieces of information.  The political beliefs of the candidate, and the preferred candidate of the party.   There is no provision for a state-sponsored nominating procedure, leaving that up to the parties as a private matter.

In California, parties may make endorsements that appear in the sample ballot/voter's pamphlet sent to every voter.  The Republicans did not make any endorsements this year, citing timing problems, and not wanting to interfere in intraparty contests.  The Democrats have endorsement procedures, but they might not be triggered unless there is supermajority support for one candidate.

What would be the legal basis for keeping a loser in a partisan nominating contest off the Open Primary ballot?  Should a Lisa Murkowski be prohibited from seeking the votes of all Alaskans, simply because Republicans preferred another candidate?

California does not permit write-ins in the general election.  It does permit write-ins in the primary for declared write-in candidates (they must petition, but they avoid the filing fee).   There is no threshold for nomination.

Washington permits write-in votes in both the primary and general election.  It does but permit a loser in the primary to be a declared write-in candidate, but it does not require a candidate to be a declared write-in candidate.  It does have a threshold for nomination (I think it is 2%).  Washington presumes that undervotes and overvotes might be valid votes, but does not examine them unless it could cause a change in outcome.

The 2% threshold is partially to avoid counting write-in ballots when there is only one candidate on the ballot.  In 2010, a Socialist Alternative candidate ran for both representative positions in a legislative district (Washington has two representatives and one senator per legislative district, with the representatives running by position - Position 1 and Position 2).   Since she couldn't formally run for both positions, even as a write-in candidate, she urged her supporters to write in her name for the position where she was not a formal candidate.  She advanced to the general election for both positions, but then had to choose which position, since she could not appear on the balance twice.

[True Federalist (진정한 연방 주의자)]

The problem with the idea is that people who are nominally in a party, but think they would do better in the general election than in the party primary would choose to opt out so they could run in the top two.  We have that here in South Carolina with a couple of Republicans who opted to run as petition candidates rather than in the party primary.  So while it likely would be legal, it wouldn't really solve the problem you're trying to fix.

[Kevinstat]

The problem with the idea is that people who are nominally in a party, but think they would do better in the general election than in the party primary would choose to opt out so they could run in the top two.  We have that here in South Carolina with a couple of Republicans who opted to run as petition candidates rather than in the party primary.  So while it likely would be legal, it wouldn't really solve the problem you're trying to fix.

But with this method, you could have party enrollment and deadlines for unenrolling/changing enrollment to be an Independent candidate/candidate of a different party in a given election year, like Maine has.  You still might have some of that, but no more than under a "regular" primary system with no "top two" primary after.  And in competitive districts, as long as both parties are decently well organized, they should be able in most cases to both advance to the General Election, shutting out any but the strongest Independents or "renagade" sort-of-members of one of the two major parties in the "top two" primary.

Whichever major party in a given state is less plagued by Independent/3rd party candidates "stealing" votes from that party's candidates, if one is much less plagued by that then the other, would likely oppose this method.  But I still don't see how you can have a much more "Duvergerian" method this, provided that the primaries were closed (I left open either open or closed primaries in my opening post) and the deadlines for changing enrollment were as strict as any other state (you're getting into a different aspect of the election process there, but one which could also influence how "Duvergerian" a given state's electoral system is.

[True Federalist (진정한 연방 주의자)]

Actually, the system you propose makes it likelier that centrist candidates would decide to ditch the two major parties.  The top two primary eliminates one of the major barriers for third party/independent candidates, the wasted vote syndrome.

A centrist who thinks ey has a poor chance in eir party's primary can run as an independent and if ey can make the runoff, ey'll likely win.  At most tough rules for party (de)registration would force them to decide whether to take their chances inside or outside the party sooner, but I would expect to see more decide to do that, and more to win when they do run than would be the case with the ordinary everybody runs jungle primary.

[Kevinstat]

Yeah, that's a good point about centrist candidates, and about how concerns about people wasting their votes would not be an issue in the top-two primary unless there were four or more candidates who seemed capable of finishing first or second (less likely after the primary winnowing process, although if a lot of candidates were to forgo the primary the after-primary top two would become a lot like the California/Washington/Louisiana system).  Also voters might not be as aware of the possibility of two undesirables finishing 1-2 as they would be of one detestable (from their view) candidate winning in a multi-candidate General Election.  The California experience seems to suggest that.  I guess there's no getting around individual candidate ambition.

My method would probably mitigate the problem of spoiler candidates on either party's fringe, though.  It might vary state by state as to whether my method would end up being more Duvergerian or not.

[solarstorm]

I think the CA/WA method would have really been fun in the 2008 election.

Imagine the following match-ups:

• Hillary vs. Huckabee in Arkansas
• Hillary vs. Edwards in West Virginia
• Hillary vs. Obama in California
• Hillary vs. Giuliani in New York
• Obama vs. Paul in Washington
• Paul vs. Romney in Alaska
• Hillary vs. Romney in Massachusetts
• Hillary vs. Thompson in Tennessee

[jimrtex]

Actually, the system you propose makes it likelier that centrist candidates would decide to ditch the two major parties.  The top two primary eliminates one of the major barriers for third party/independent candidates, the wasted vote syndrome.

A centrist who thinks ey has a poor chance in eir party's primary can run as an independent and if ey can make the runoff, ey'll likely win.  At most tough rules for party (de)registration would force them to decide whether to take their chances inside or outside the party sooner, but I would expect to see more decide to do that, and more to win when they do run than would be the case with the ordinary everybody runs jungle primary.

In Caliifornia, Lucy Killea had to get the law changed to permit her to run as an independent in the general election.  Killea had been elected as a Democrat in a special election, but becoming frustrated with the partisanship in Sacramento, had changed her registration to independent.  She then found she could not run for re-election because the deadline for party switching was one year before the primary.  She was able to get a law passed that made the deadline for running as an independent one year before the general election.

It is conceivable that rules could be tough enough for party registration that they would derail a candidacy.

What you are saying about an independent candidate preferring to bypass the partisan primary, but having only to finish 2nd in the open primary may be born out by the candidacy of Marianne Williamson in CA-33, which had 10 Democrats, 3 Republicans, 1 Green, 1 Libertarian, and 3 independents.  Williamson finished 4th behind two Democrats and 1 Republican, with 13.2% of the vote, but the Top 2 only had 21.6% and 18.8%.  There was too many choices to identify her as a viable candidate.  The Green and Libertarian candidates also had the poorest performance for their parties in a congressional race.