Top Two (With a Twist) for Oregon?

// Published October 18, 2013
OregonCapitolnight2

The American electoral system is highly dysfunctional. One of its most basic problems is that districts and states often have lopsided partisan preferences, meaning that general elections between the nominees of the two major parties are overwhelmingly formalities. Consequently, representatives may be effectively chosen in low-turnout partisan primaries that are paid for by all taxpayers, but are often limited to only a portion of the electorate. A number of reforms have been proposed to address this problem, including open primaries, redistricting reform and forms of ranked choice voting. One reform, the so-called "Top Two" system, has generated support among some, but also a great deal of controversy.

In 2008, Oregon voters rejected a ballot initiative for a Top Two system by a nearly two-to-one vote. In 2014, Top Two may be back on the ballot, but this time tied to a famous Oregonian name and with a twist: the ability to vote for multiple candidates in the preliminary election, increasing the chance that many general elections will shut out candidates from all but one party.

Under Top Two, as used in Washington and California, partisan primaries are replaced with a preliminary election to determine who can appear on the ballot in November. All candidates run in the preliminary election irrespective of political party preference. Every voter has one vote, and the two candidates with the most votes advance to the general election, even if both have the same political party preference.

We have written on Top Two extensively:

  • Our 2013 policy perspective on fixing Top Two in California
  • Our report on election results in Washington
  • Our analysis of California's Prop 14 prior to its implementation
  • Our reporting on Arizona rejecting Top Two in 2012

Most of our writing about Top Two has been critical of the system as Washington and California have chosen to implement it. Political science scholars have presented evidence that current forms of Top Two have not accomplished much. Top Two limits voters' general election choices and occasionally renders absurd results, such as the 2012 race in California's congressional district 31, where Top Two advanced only two white conservative Republicans to the general election in a majority-minority and majority Democratic district.

The backers of the new Oregon proposal seem to acknowledge that the Washington/California Top Two model has been less than satisfactory, and so they have added a twist likely to generate controversy of its own. Under the Oregon proposal, voters would not be limited to voting for only one candidate in the preliminary election; they could cast equally weighted votes for as many candidates as they want to. This system, called approval voting, is intended to help resolve the sort of vote-splitting that allowed two candidates of the minority party to advance in California district 31 (although FairVote has expressed doubts about its ability to do so as well as ranked choice voting).

The new Oregon proposal is backed by Mark Frohnmayer. Although Mark Frohnmayer is relatively new to politics, his family is not. His father is Dave Frohnmayer, former Oregon attorney general and gubernatorial candidate. His uncle is John Frohnmayer, former chairman of the National Endowment for the Arts. The Frohnmayers were known as moderate Republicans. That this proposal is attached to the Frohnmayer name gives it a boost of momentum. 

Frohnmayer apparently believes that the issues with Top Two should be largely addressed by the use of approval voting in the preliminary election. If voters vote honestly and enough candidates run, this proposal should result in two candidates from the same party appearing on the general election ballot nearly every time. If a district is majority Republican, for example, then the majority will likely approve of two or more Republicans, such that both the first and second-place finishers in the primary will be Republicans. The same would be true for Democrats in Democratic-majority districts. Even statewide races could often end up with two people of the same party, as even a slim partisan advantage in the preliminary could easily result in two Democrats or two Republicans being the only candidates on the ballot for governor or U.S. Senator.

In theory, such outcomes in highly partisan districts would give voters a contested general election choice between the only candidates who had a real shot to win - that is, such districts are likely to elect a member of the majority party anyway. The proposed Top Two system would allow all voters in the general election to choose which member of the majority party will ultimately win.

There are a couple problems with this result, though. First, as the infamous Sherman-Berman race in California's congressional district 30 in 2012 demonstrates, when candidates are too similar in terms of policy positions, they may just resort to mean-spirited personal attacks to win, hardly a result promoting moderation. Second, even if the system did result in more "median" candidates being elected, it would come at the cost of a lack of diverse viewpoints in the debates and a lack of choices outside the majority party preference on the ballot. It would be as if the 2008 presidential race in November had presented voters with a choice of only Barack Obama or Hillary Clinton.

Further, there are reasons to think that candidates, parties, and voters will engage in strategic behaviors that undermine the goals of the system, just as they do under Top Two in Washington and California.

Consider the 2010 race for Washington's state senate seat in legislative district 38. Union-backed interest groups wanted to unseat moderate incumbent Jean Berkey and replace her with the more progressive Nick Harper, but they knew that in a one-on-one race, Berkey would likely beat Harper. Fortunately for them, former Republican Rod Rieger, a long-shot candidate running under the "Conservative" party label, was also running in the preliminary election. The groups managed to propel Rieger to the general election by campaigning for his election alongside their ads for Harper. They thus squeezed Berkey out of the general election entirely, and Harper went on to easily win.

Strategies like these would still be possible with approval voting in the preliminary round. In a Democratic district, backers of a particular Democrat would prefer not to face another Democrat in the general election. With approval voting, they could simultaneously vote for their favorite Democrat and for a weaker non-Democrat in the field. It would be as if Harper supporters could not only send out mailers for Rieger, but actually vote for him as well. As long as that candidate also gets support from others, such a strategy could be viable for strategically manipulating who makes the general election.

Top Two definitely can be altered in a way that would make it a powerful reform in Oregon and elsewhere, but this proposal misses the mark. The issue is less about how people can vote in the preliminary election, and more about what choices are available in the general election.

For example, advocates of this proposal could simply change their calendar. They could move the first round to November and elect the top candidate provided that candidate receives at least 60% approval. If no candidate achieves that threshold, there could be a December runoff between the top two. This approach would preserve voter choice in the critical autumn election and minimize some of the most common concerns about approval voting.

Alternatively, as we demonstrated using California and Washington election results, if the California and Washington primaries remained the same but advanced four candidates instead of two and adopted ranked choice voting in November, it would enhance intraparty competition while giving voters more choices and avoiding split vote outcomes. You'd be far more likely to have a spectrum of real choices advance - often including two or three candidates of the majority party, but always other perspectives as well.

With four candidates and a ranked choice ballot in the general election, voters could indicate their first, second, and third choices to ensure a final winner with majority support compared to their top rival after an instant runoff. It's a proposal we call Top Four. Taking ranked choice voting into multi-seat elections would then allow for real representation of the diversity of political viewpoints people actually hold. 

Mark Frohnmayer and other Top Two advocates are absolutely right about one thing: the polarization and dysfunction we see in legislative bodies today trace back to how we choose to conduct elections. Abolishing traditional primaries and experimenting with approval voting represent the kinds of creative thinking that can help us to make that connection and seek a real solution. Our analysis suggests that Top Four is a better approach, however: one that would generate real competition and real choices while paving the way for real representation.