By Daniel H. Stewart

Recently, Republican Senator Ben Kieckhefer filed an initiative petition to reform Nevada’s primary elections, so that the top two vote-getters, regardless of party affiliation, advance to the general election. So far, the response has been surprising. Democrats have largely ignored it, despite the fact that the current system is going gangbusters for them. It is Republicans, conservatives, and Libertarians that have voiced the most public opposition. Some of that criticism, like David Colborne’s, has been thoughtful and persuasive. But some Republicans have rejected the proposal in its entirety. 

This Republican opposition, however, is misplaced, and I hope it does not represent a majority position in the party. In almost any other context, my fellow Republicans would recoil at the type of public-private partnership our primaries have become.  The current system is the political equivalent of a highway in which every lane, at every hour is reserved for HOV’s only. Everyone pays for the road, but only those belonging to HOV Club 1 or 2 can use it.

Under today’s regime, all taxpayers pay for a process that only select taxpayers can use. Disfavored Nevadans, no matter how numerous or how much they contribute to the state, stand by and watch state resources help two private political organizations settle internal fights – even the useless ones. Major-party, general-election cannon-fodder still get the benefit of a state-sponsored June coronation. 

Imagine the uproar if the state paid for and regulated religious, non-profit, or corporate leadership fights. Would we be OK with state funds, state property, and state law aiding Focus on the Family or Planned Parenthood when they pick their champions? 

These are the battlements some Republicans rush to defend. Yet I can think of no Republican “principles” undergirding any idea that the state must bestow public benefits on select private organizations. Worse, Republicans pay for this government favoritism by agreeing to extensive government intervention, sacrificing one stated principle for the opportunity to sacrifice another. 

Although, I do not share the concerns Republican opponents of the proposal have raised, their objections deserve engagement. Two critiques stand out. 

1. This effort helps moderate Republicans win.  

No. What plagues the system is not what it produces but what it is. Even if the current set-up incentivized zealots, it is an irrelevant argument for or against the proposed reform. Governments should not regulate elections to combat the alleged vices of extremism or promote the supposed virtues of moderation. Voters should shape outcomes, not the state. If voters prefer “extreme” candidates, the top-two system will not stop them. Nor should it.  

2. Non-Republicans would interfere in Republican business. 

Nonsense. Even Justice Scalia and Justice Thomas reject that argument on its face. 

While authoring the opinion striking down on actual open primary, Justice Scalia opined about a top-two system. “Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters . . . move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee.” California Democratic Party v. Jones, 530 U.S. 567 (2000). 

Eight years later, Justice Thomas, writing for the majority, approved a top-two system. Justice Thomas said that such a system “does not, by its terms, choose parties’ nominees. . . . The top two candidates from the primary election proceed to the general election regardless of their party preferences.”  Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008). 

RINOS!

Unlike traditional “open primaries” in which any registered voter may participate in a party’s primary, the top-two system has absolutely nothing at all to do with picking party nominees. Parties remain free to select their favorites on their own dime, by their own rules. We already do that for presidential elections in Nevada (or what passes for them). The Nevada GOP tried something similar in 2014 by using pre-primary endorsements for all races. That it failed spectacularly to change any primary voter’s mind is beside the point. The infrastructure is in place; the will is lacking. 

Much of Nevada’s electoral system already works like the top-two proposal. For nonpartisan offices like the judiciary and local government we have primaries if there are more than two candidates. Unless one gets a majority vote at the primary, the top two candidates move on to the general. That process has not stopped political parties, interest groups, political action committees, etc., from telling the world who they prefer. 

In fact, the current system is actually a better target for the party-protecting criticism now leveled at the top-two proposal. It is hard to see what Republicans actually have to do with today’s Republican primaries. By accepting state funds, Republicans accept state rules. The government sets voting hours, days, locations, and procedures. The same officials who many Republicans wrongly believe aiders and abettors of general-election voter fraud run primary elections too. And with same-day registration, any eligible voter can vote as a Republican if he or she really wants to. This is the process supposedly keeping Republican primaries pure?  

Don’t get me wrong; I love things like same-day registration. But most Republicans do not, preferring to run their internal elections (like presidential caucuses), as some kind of airport VIP lounge for longtime, loyal customers only. If Republicans really want that power, they need to step out of the state’s shadow.  

In the end, this specific Republican opposition to Sen. Kieckhefer’s proposal falls short. Change is often hard. But it is never too late to try to get it right. As the population of non-Republicans and non-Democrats grows, excluding them from elections they pay for gets harder to defend, especially on Republican grounds. It is no answer to say they can participate if they just join one of two parties. State-sponsored communion is off limits too, even if people are free to convert. 

There is nothing Republican about the state playing party boss. And I hope Republicans will lead the charge for Sen. Kieckhefer’s long-overdue reform.

Daniel H. Stewart is a partner with Hutchison & Steffen, where he leads the firm’s Election, Campaign and Political Law practice.  He has practiced law in both the public and private sectors, representing elected officials, candidates, campaigns, social welfare organizations, and other political and policy-focused clients.