Details Matter: The Oregon Top Two Twist

by Rob Richie, Drew Spencer // Published August 11, 2014

In recent elections cycles voters in a number of states have been presented with ballot proposals that would abolish primary elections for some offices in favor of the “Top Two” system used in California and Washington. That system raises a number of questions and details that must be addressed, which we have covered in the contexts of California, Washington, Arizona, and other states. Most fundamentally, FairVote believes that general elections should not restrict voters to just two choices, and has proposed modifying the Top Two system to advance more candidates, which we call the Top Four system, in which ranked choice voting would be used in November.

This year, Top Two will be on the ballot in Oregon,[1] where approval would implement it for all state and federal elections except president. Last week’s decision by U.S. Senator John Walsh (D-MT) to withdraw from his election bid this fall in the wake of revelations of plagiarism raises an important question for Top Two advocates: how do you handle the death or withdrawal of a candidate? In Oregon’s proposal, the answer is a surprising one.

With partisan primaries, if a candidate drops out of the race after the primary election but before the general election, the political party that nominated that candidate is typically allowed to choose a replacement. That’s what will happen in Montana, where the state’s Democrats will convene to pick a new nominee later this month. In 2002, Sen. Paul Wellstone (D-MN) died in a plane crash less than a month before the election and was replaced on the ballot by Walter Mondale. In 1990, Minnesota voters elected Arne Carlson as governor just nine days after he replaced Jon Grunseth as the Republican nominee.

Using the approach to Top Two implemented in Washington and California, however, the political parties do not officially nominate any candidates for the general election ballot. In California, the candidate’s voter registration is indicated on the ballot, while in Washington a candidate has the option to indicate whatever party or other association they want. In neither case does the party have any control of the candidate’s association. Under those circumstances, it is questionable the political party should have the right to choose a replacement should a vacancy occur.

Still, in Washington, despite the lack of party involvement in a candidate’s choice of association, the law allows the political party preferred a withdrawn candidate to choose their replacement. In California, however, no substitution is allowed. The top two finishers in the June primary will appear on the November ballot no matter what happens. If a candidate has died or withdrawn, voters who want that former candidate’s party to win must vote for the withdrawn candidate with the hope that this candidate will win and thus trigger a special election with new candidates. Both approaches raise questions and complications, but do make at least some sense for those who accept the role of parties in our political system.

Oregon, however, could take a different tack. One the one hand, the Oregon proposal has admirable provisions for upholding freedom of association, including the ability of a party’s endorsement of a candidate to appear on the ballot. Even so, the backers of the proposal decided to ignore these association rights in the event a candidate withdraws or dies. Under the Oregon proposal, a withdrawn candidate will automatically be replaced by the candidate who finished third in the preliminary election in May.

This might seem like an elegant solution, until one considers how it would actually work in practice. In Top Two primary elections, strong incumbents typically scare off challengers from their own party. Further, political parties and other interests play a major role in determining the frontrunners by channeling funding and volunteer support to their preferred and urging other candidates to wait their turn. This helps explain why Top Two, which is often sold as an improvement for unaffiliated or third party voters, has resulted in only Democrat versus Republican races most of them time.

For example, California is a majority-Democratic state that has only elected Democrats in statewide races since 2006. However, in the governor’s race this year, the second, third, fourth and fifth place candidates were all Republicans. This happened because other Democrats accepted incumbent Jerry Brown as the consensus Democratic choice. Only one other Democrat ran, a longshot who earned less than 1% of the vote. Under the Oregon proposal’s rule, if Jerry Brown were to die or withdraw in the time between the primary and general election, then the general election would have featured two Republicans who earned 19% and 15% of the primary vote respectively. Every Californian would wind up being governed by a candidate almost certainly opposed by a clear majority of voters. As mentioned, mid-election vacancies due to scandal or death are far from theoretical. The Oregon rule has the potential to turn such a tragedy into a farce.

Like California, Oregon does not make write-in campaigns a realistic alternative. In California, write-ins are not permitted at all. In Oregon, there is a write-in line, but write-ins are not counted unless there are enough of them to win the election. A write-in line would be a poor substitute for a viable candidate in any case, but knowing that a write-in candidate will not even be included in the reported results makes it an especially poor substitute for a genuine competition among competing viewpoints.

Of course, people should also be talking about the Oregon proposal in terms of how it simultaneously opens primary elections to all voters while it closes off the critical general elections to meaningful competition. An abnormal and highly problematic way of replacing vacancies between the primary and general election date is a smaller detail, but it’s the kind of detail that could have a huge impact – and advocates should be better prepared in the future to come up with measures that better protect the will of the people.

[1] Note that this article is not about Mark Frohnmayer’s Unified Primary proposal that we have discussed in the past. That effort failed to achieve the necessary number of signatures and will not be on the ballot in Oregon this year. The subject of this article is Oregon's Measure 90, which will appear on the ballot in November.