California‐​Style Top Two Is a Mistake for Montana

Andy Craig

In Montana, legislators are considering an unusual elections proposal. In an effort seen as targeting incumbent Sen. Jon Tester (D), Senate Bill 566 would adopt a “Top Two” election system, but only for one specific election: the 2024 U.S. Senate contest. Under Top Two, all candidate regardless of party run in a so‐​called jungle primary. Only the top two candidates then advance to the general election in November, even if they’re both members of the same party.

Writing at FiveThirtyEight, Nathaniel Rakich pokes holes in the political theory underlying this move. It’s true Tester has won twice in the past on a plurality of less than 50%, with Libertarian candidates taking a few points in each of those elections. But it is mathematically unlikely he would have lost head‐​to‐​head. As Rakich explains, it can not simply be assumed that all of those third‐​party votes would have otherwise gone to the Republican candidate. Even if the larger share of them had, an implausibly lopsided supermajority would have been needed to change the results. In Tester’s most recent reelection in 2018, it’s a moot point because he won with over 50% of the vote. The partisan advantage provided by knocking spoilers off the ballot is often overstated. In reality, in most cases it wouldn’t matter even if the third party candidate “beats the spread,” that is, exceeded the margin of victory between the Republican and Democratic candidates.

Political motives aside, Top Two is a terrible system, one of the few electoral reforms widely panned on both sides of the aisle. Top Two has been in place for several years in California and Washington state, and it’s recently under well‐​deserved fire in both. No other state has adopted it in well over a decade. There are good reasons it hasn’t caught on, even in an era of rising support for electoral reform.

Top Two was intended to to promote more competitive elections and encourage more moderate candidates. It has done neither. Instead, the system has produced only dysfunction and dissatisfaction. It has created manifestly undemocratic results, such as advancing two Republican candidates in a Democratic‐​majority district or vice versa. It also creates the unseemly spectacle whereby some voters go to the polls in November and see candidates from only a single party on their ballot, more reminiscent of elections in the Soviet Union than the United States. The number of spoiled ballots also increases exponentially under Top Two, with millions of voters refusing to mark either candidate in a one‐​party election.

I wrote more about Top Two’s failures in California here. The Montana proposal is subject to the same critiques and others as well. Making such a change only for one election, targeting one particular incumbent, is an improper way to design election rules and procedures. As noted above, it probably would not accomplish its intended goal of defeating Tester by keeping third‐​party spoiler candidates out of the race. And it could backfire in dramatic fashion. The larger party in a state and the non‐​incumbent party (here, Republicans on both counts) will tend to attract more candidates to run in the primary. This results in a greater risk of the party fracturing and thus failing to advance any candidate to the general election. It puts parties in the untenable and often impossible position of trying to clear the field and discourage too many of their own candidates from running.

While Tester is not seen as likely to face a strong Democratic primary challenger, it’s worth considering the possibility. In a race where two Democrats are splitting, for example, 40% of the primary vote, and as many as six or seven Republican candidates are splitting their party’s 60%, it is entirely possible that two Democrats would take the top two spots. In November, voters would have no Republican option even though Montana voted for Trump over Biden by sixteen points, and even though more primary voters wanted a Republican candidate than a Democrat. Making sure there’s a strong second Democratic candidate in the race might even be a reasonable strategic move for Montana Democrats if Top Two passes.

There are other options to address the problem of spoiler candidates. Runoff elections such as those used in Georgia are one possibility, as is ranked choice voting. But ultimately, electoral rules should not be bent to try to achieve a desired outcome in a specific race. Exploring alternatives to first past the post elections is a worthy goal, but Top Two is a step in the wrong direction.