Montana's CI-126 and CI-127: Enacting a Top 4 primary and 50 percent election threshold

This November, Montana voters will decide whether to adopt two separate constitutional amendments: CI-126 to require a non-partisan Top 4 multi-party primary system to determine which candidates advance to the general election; and CI-127 to require 50% support to win an election. Montana is currently an "open" primary state, meaning voters are able to choose either a Republican or Democrat ballot during a primary without needing to belong to one of these private political groups.

While there are many examples of states with open primaries across the country, currently only Alaska uses a Top 4 multi-party primary for statewide elections. This primary format has also been combined with Ranked Choice Voting (RCV) in that state. Alaska voters narrowly adopted the Top 4/RCV policy in 2020 by 50.55%, but its use has been so controversial that Alaskans this November will have the opportunity to repeal it with the certification of a new ballot measure.

According to the National Conference of State Legislatures (NCSL), "primaries can be categorized as closed, partially closed, partially open, open to unaffiliated voters, open or multi-party." If CI-126 is enacted, Montana would be moving from an "open" primary that is currently used by 15 states, to a "multi-party primary" that is used by five states.

Though Ranked Choice Voting is not explicitly required by CI-127, Montana's Secretary of State Christi Jacobsen has warned about the problems associated with RCV. Secretary Jacobsen said:

". . . following implementation of RCV in Alaska, my Alaskan election colleagues referred to it as 'the biggest nightmare they've ever had to deal with' – so much in fact, that Alaska is currently in the process of getting RCV repealed. Studies have shown that RCV can decrease voter turnout, create distrust in the process, and disenfranchise voters, specifically minorities. With RCV, you are essentially forced to vote for someone you would never vote for or endorse to begin with."

Also, though a strong advocate for the Evergreen State's Top 2 Primary, Washington Secretary of State Steve Hobbs is adamantly opposed to Ranked Choice Voting.

Concerned about RCV proposals, Secretary Hobbs recently penned an op-ed titled: "Ranked-choice voting sounds good. But here's why it would disenfranchise voters." Secretary Hobbs and Spokane County Auditor Vicky Dalton wrote:

"Before signing onto ranked-choice voting, we ask that you listen to the experts who ensure every Washington voter counts. It is not simple to convert elections from checking one box to ranking several choices . . . Even advocates of changing voting methods have conceded that 29% of voters don't rank multiple candidates in ranked-choice elections. This means nearly a third of ballots have reduced influence, an unacceptable deprivation. In findings released earlier this year, Princeton University professor Nolan McCarty examined ranked-choice elections in New York City and Alaska and found that minority voters are disproportionately shortchanged by this construct."

Taxpayer-funded elections don't belong to private political groups. Although Montana already offers voters an open primary election system, moving to a multi-party primary (preferably Top 2) is a debate worth having. In general, there aren't major policy concerns with a Top 2 primary like Washington and California have (also currently under consideration in South Dakota).

In 2008, Justice Thomas wrote the U.S. Supreme Court opinion upholding that type of multi-party primary because they aren't party nominating processes but instead structured to advance the two candidates with the most support to the general election.

A Top 4 primary is more challenging as a policy, however, as it almost requires by design either a candidate winning without 50% or some type of runoff election. This is likely why supporters of CI-126 also advanced CI-127. Currently, only Alaska uses a Top 4 primary (combined with Ranked Choice Voting) but that system may be repealed by voters this year.