California and Washington state have adopted the Top 2 primary system in the last few years, and now business interests are putting up lots of money to fool Oregonians into implementing it too. However, in crafting it they have attached a poison pill that, when exposed, should convince any Democrat to oppose the ballot measure. Below I will explain.
I am going to just go over the key sections of the ballot measure that concern me, but the whole thing is linked below if you'd like to read it. Now you might want to go grab some snacks and a beverage because shit's about to get real.
I want you to read the actual ballot measure's text so you know I'm not trying to pull the wool over anyone's eyes. I'll show the relevant sections below.
Section 3 describes the intent of the law:
Section 4 defines the term "voter choice office", which are the offices that the ballot measure will change the election process for:
What are those two laws? ORS 171.051 deals with what happens when there's a vacancy in a state legislative district. It applies in certain circumstances listed under subsection (1), and subsection (2) determines what happens. (2) requires that the appointee must have been a member of the same political party for 180 days, and lays out processes for nominating and appointing candidates described further in ORS 236.100, ORS 171.060, and ORS 171.064. It establishes that county commissions where the vacant district exists are to make the appointment. The remaining sections deal with when a special election will be used rather than an appointment, or when the county commission fails to appoint someone.
ORS 171.064 (and ORS 171.062) simply describes how multiple county commissions vote on an appointment when the district crosses county boundaries. They do it by share of the voters of the district: counties with more people in the district get a disproportionately large vote, counties with fewer people in the district get a smaller share.
ORS 236.100 is important to note: it requires that when the person who created the vacancy was elected in a partisan election, the appointee to replace them must be of the same political party as them. This ballot measure removes that requirement.
ORS 171.060 is also important but I'll address that after Section 17 of the ballot measure because it directly addresses it.
ORS 171.060(1) determines the process when:
When any vacancy as is mentioned in ORS 171.051 (Filling vacancies in Legislative Assembly) exists in the office of Senator or Representative affiliated with a major political partyORS 171.060(2) determines the process when:
When any vacancy as is mentioned in ORS 171.051 exists in the office of Senator or Representative not affiliated with a major political partySo the ballot measure replaces the process for filling vacancies to replace Democrats and Republicans (and potentially other party members) with the process for filling vacancies of unaffiliated officials. That makes sense if we're taking party out of the equation. I think that the current system we have for filling vacancies of party members is good, though, because it as closely as possible fulfills the will of voters at the last election.
The current process under ORS 171.060(1) is one in which a democratic process within the political party of the person who created the vacancy nominates people for the appointment. The practice is for precinct committee persons from the same party and in the district of the person who has created the vacancy are the people who vote to make nominations to the county commission(s), who then vote among the nominees to make the appointment.
Under ORS 171.060(2) there seems to be no nominating process other than whatever rules the Secretary of State establishes for the meeting of the county commission(s). It seems like the county commissioners can select whoever they want in this process that the ballot measure would extend to all appointments.
Okay, that's a lot of laws and stuff. Take a breath.
I already started explaining an idealistic reason why changing all of this is a bad idea: it thwarts the will of voters who elected the person in the last election. And if we aren't going to go to the expense of having an extremely low turnout special election to fill the vacancy, why not empower the local party members to choose the nominees, as they are more likely to choose someone who is well-connected to the district and a loyal party member, someone who knows the district and will continue representing it in a way like the elected official they are replacing was elected to do. That's the current process. I like it.
But there's more to this than just what would ideally be a better system. There are practical effects to consider. Putting the decision in the hands of county commissioners, with no requirement that they appoint someone from the same party, can be dangerous, particularly to Democrats. This is because there are only 2 of the most populous counties in the state where I know have county commissions with Democratic majorities. Now, its hard to track in many counties because many have nonpartisan county commissions, but even in some of those cases party membership is known. So for example in the biggest county, Multnomah, we know there is a Democratic commission. I know that the 11th biggest, Benton County, is run by Democrats.
However, I also know that every county between them, Washington (2nd biggest), Clackamas (3rd), Lane (4th), Marion (etc.), Jackson, Deschutes, Linn, Douglas, and Yamhill are run by Republicans or will be by next year (in the case of Douglas County). As are many of the smaller counties, but we'll focus on the big ones.
There are 60 districts in the state house and 30 in the state senate and Democrats hold 34 house seats and 16 senate seats, majorities in both chambers. Every seat held by a Democrat is a seat that Barack Obama won in 2012, while Republicans hold another few seats in each chamber that Obama won.
There are 8 senate districts which President Obama won that are predominantly in counties run by Republicans where they could be able to cause trouble in the appointment process in cases of vacancies, and only one of these is held by a Republican (and it might not be after this fall's election). Six of those districts are only in counties run by Republicans. In Clackamas County district 19 also crosses into Washington and Multnomah counties, and so Republicans could really screw with the appointment. In Washington County districts 14 and 17 cross into Multnomah County, but are mostly in Washington, so Republicans could screw with the appointment, and if we pick up district 15 this fall Republicans would decide on their own, because it does not cross into another county. In Marion County Reublicans would have the total power of appointment should Democratic Senate President Peter Courtney (district 11) leave his seat vacant. In Lane County Republicans would be able to choose successors to Democratic senators in districts 4, 6, and 7. In Jackson County Republicans would be able to replace Democrat Alan Bates in district 3 with their choice, should be leave his seat vacant.
In the House, 21 districts won by Obama are predominantly in big counties run by Republicans where they could screw with the process, only 4 of them held by Republicans. 15 of those districts are only in counties controlled by Republicans. In Clackamas County there is only one of those state house districts that doesn't cross into another county (HD40), but there are three that cross into R-controlled Washington County (HDs 26, 35 (also in Multnomah), and 37), and five more that cross into Multnomah County (HDs 38, 41, 48, 51, and 52). In Washington County there are those crossovers, plus four more wholly contained districts (HDs 28, 29, 30, and 34) and two others (HDs 27 and 33) that cross into Multnomah County. In Lane County every district would be at stake, as not only is there Republican control there but in Douglas and Linn counties, where other districts cross over (risking HDs 8, 9, 11, 12, 13, and 14). In Marion County there are two districts entirely within the county (HDs 21 and 22) and another that is also in what looks to me to be another Republican controlled county, Polk (HD20). In Jackson County there is HD5, which is entirely within the county, and in Deschutes County there's HD54, which is just confined to Bend. Democrats don't hold all of these, but we do almost all, and the ones we don't have we are targeting and may win this year or another. And if this ballot measure passed merely a vacancy would likely mean handing them over to Republicans. And that doesn't even go into the possibility of Democrats picking up a Republican-leaning district, where it would likely be a foregone conclusion that a vacancy would be filled by a Republican should this measure pass.
Even where some of the district goes into Dem-controlled counties like Benton and Multnomah, Republicans could screw with the process. Don't believe me? It's happened before here, when Suzanne Bonamici was elected to congress and the Washington and Multnomah county commissions came together to appoint her replacement. In a move unprecedented in recent history commissioners chose Elizabeth Steiner Hayward over State Rep. Chris Harker, who had the support of most precinct committee persons and was already a sitting member of the legislature. And it was on the votes of the Republican-controlled Washington County Commission that it happened.
That was just a couple years ago. But there's a more recent example. Just across the Columbia in Clark County, Washington, Republican county commissioners had to fill a Democratic vacancy on their very own board of commissioners. Democrats made nominations, and at the top of their list was Craig Pridemore, who was actually running for the county commission. He's who Democrats really wanted. Who did Republicans pick?
A vocal critic of Madore, Mielke and Department of Environmental Services Director Don Benton, Barnes was seen as a dark horse candidate for the appointment. Pridemore, a former county commissioner and state senator, was the Democrats’ top pick for the appointment and had the backing of both Love Parker and Barnes. Pridemore is also the only candidate running an election campaign for the position’s next term. He’ll face Republican Jeanne Stewart, a former Vancouver city councilor.This isn't to say Steiner Hayward or Barnes were not good choices, but it seemed the intent of local Democrats that Harker and Pridemore were appointed.
Barnes said he had been skeptical of the appointment process, which he believed was stacked against appointing Pridemore. Upon accepting the nomination, Barnes vowed to continue being his outspoken self on the board.
Mielke responded to accusations that he had told his supporters that he wouldn’t appoint Pridemore under any circumstance, saying he had deep respect for Pridemore. “People have to be careful about rumors,” he said.
These occurred in processes that required an appointment of someone from the same party as the person they're replacing. What would occur if it didn't? Can we really trust people from the other party when there are no limits on what they can do?
And sure, in some of these districts a Republican appointee would get crushed in the next election. But in some it would grant them the inherent strengths of incumbency, and a chance to entrench themselves in swing districts like house district 40 in Oregon City and Gladstone, or senate district 3 in Ashland and Medford, both held by Democrats, where Republican majorities on the commissions would have total control over the appointment. And in recent years we have seen where during the legislative session one seat flipping could make the difference.
I have other problems with the idea of a Top 2 primary, like how it can create absurd results like in California's 31st congressional district. In 2012 two Republicans won the primary and advanced to the general election, locking Democrats out of any chance at winning the seat, in a district that President Obama went on to win comfortably, simply because more Democrats had run than Republicans, and split the vote. And it almost happened again in the same district this year! My objection to the general idea of top 2 is nothing compared to removing the requirement that appointees be of the same party as the person they'd replace.
Don't let a ballot measure whose aim is supposedly to open up the primary, in reality give Republicans chances to steal legislative seats from us.