"You know what’ll get people to show up to the grocery store? White bread.”
— Absolutely nobody, ever

Every few years, somebody gets it into their head that what voters really want, deep down, is more moderate candidates. Nevermind the ample evidence to the contrary. Obama was less moderate than Clinton. Trump is less moderate than a fully armed Hunter S. Thompson shaking off a bad acid trip in the middle of the desert. Rep. Steve King has been reelected repeatedly by the same Aryan blond half-sentient corn stalks that get first crack at Republican and Democratic presidential candidates despite — no, because — he’s a racist bridge troll. 

Usually, the person who gets this notion in their head is someone who’s tired of their side losing more often than not, which brings me to Republican state Senator Ben Kieckhefer.

Sen. Ben Kieckhefer has two problems.

First, as far as Republicans go, he’s not particularly dogmatic. His 2019 Nevada Policy Research Institute (a statewide nonprofit that focuses on fiscal conservatism) Legislative Report Card score was only 78.14 percent, which put him near the top for state senators but in the middle of the pack for Republicans overall. That, however, is a marked improvement over where NPRI scored him after his first session as senator in 2011, and his 2013 score was even worse. Since you only get one chance to make a first impression, and as his Senate district is relatively safe by Republican standards (Senate District 16 has the second-most registered Republican voters in the state), his primary election races tend to be much closer than his general election races.

Second, he’s a Republican in the state Senate, a legislative body which is still one vote short of a Democratic supermajority. This makes him the political equivalent of Tiehm’s Buckwheat, especially with redistricting coming around the corner. 

So, if you’re Ben, how do you help get more Republicans elected to the state Senate, or, failing that, get more Democrats to make eye contact with Republicans despite there being little reason to do so? Also, how do you keep Schmidt from befouling your electoral backyard? 

His solution: Copy and paste California’s and Washington’s top-two voting system, which allows everyone to participate in every major party’s primaries and allows only the top two vote recipients to proceed to the general election, and throw it at the voters as a ballot initiative. Of course, when you throw something at the voters, you have to sell the benefits, otherwise they’ll duck and refuse to catch it. 

To Riley Snyder, on behalf of the readers of The Nevada Independent, and to James DeHaven, on behalf of the readers of the Reno Gazette-Journal, Sen. Kieckhefer pointed out that partisan primaries are taxpayer-funded, yet only those registered to vote as one of the major parties are allowed to participate. This means taxpayers are subsidizing the candidate selection activities of the major parties, which are fundamentally private organizations (this is absolutely true). Additionally, by giving non-partisan (and third party voters like me, by the way) something to vote for in the primaries other than municipal and judicial races, the measure will increase participation in the primaries. It also might mean a reduction in the number of noncompetitive races.

Sounds great — but does the system work?

In a word, no. 

The first problem with top-two is that most voters don’t actually know who their representatives are so, instead, they tend to vote party line. That creates problems in primaries where many candidates from one party run for the same office. In a top-two system, a district where several candidates from one party are running for office and only two candidates from another party run for the same office may lead to those two candidates from the other party also running in the general election since that party’s votes are split across fewer candidates, while the majority party’s votes are split across several candidates. This issue nearly kept Democrats out of the general election in certain congressional races in California in 2018 and led to a Republican representing a heavily Democratic congressional district in 2012.

The second problem with top-two is it does not, in fact, encourage voters to participate in primaries. Primary turnout in California before top-two passed in 2010 was, according to California’s secretary of state, usually well over 30 percent. Since top-two passed, primary turnout has only been above 30 percent once, in 2016, and was only 18.44 percent in 2014. 

The third problem with top-two, which is related to the first, is that because voters tend to vote party line, third party and non-partisan candidates seldom end up being one of the top two candidates in the general election. Consequently, because of the second problem, fewer voters get a chance to learn about the policy positions being proposed by third party and non-partisan candidates. There are ways to work around this — the Libertarian Party in California, for example, has achieved some success by focusing more on non-partisan offices, and the Peace and Freedom Party frequently serves as the primary opposition party in heavily Democratic districts. However, unlike California, county races in Nevada are partisan, which reduces the opportunities for individual candidates to build up name recognition outside of the party system.

The fourth problem with top-two is that the reason there are so many noncompetitive (or just generally nonexistent) general election races in Nevada in the first place is because the Legislature passed SB499 during the 2015 session, which eliminated the previous practice of allowing the top two candidates in a primary from running in the general election, even if they were from the same party. This passed the state Senate, which Sen. Kieckhefer served in at the time, unanimously.

The fifth problem with top-two is it does nothing to solve the problem of taxpayer subsidization of major party political activity in Nevada. On the contrary, it just attempts to legitimize it by allowing anyone to participate in a private organization’s candidate selection process whether they’re a member of the private organization or not. Given how major parties are already trying to interfere in each other’s operations, enshrining such behavior in law and subsidizing it with nonpartisan voters’ tax dollars is probably not the wisest idea.

The sixth and most serious problem is that it’s hard to argue that candidates in top-two states are noticeably more moderate than they would be in the absence of a top-two system. Rep. Matt Shea, who wrote a so-called “Biblical Basis for War” that advocated for a violent imposition of Christianity and was found to be engaging in domestic terrorism by his colleagues, repeatedly won re-election in Washington. As for California, it may not be the Hoxhaist-Posadist People’s Republic defended by concrete tower-dwelling pansexual dolphins that some overwrought Republican fundraising emails try to paint it as, but “moderate” is still not the first thing that comes to mind when most people think of California’s politics or policies. 

Top-two is neither fit for purpose nor fit for use. In other words, it doesn’t do what it’s supposed to do — and what it does do, it does unreliably. Fortunately, we have other tools that will meet our needs. 

The first and easiest tool for us to deploy is to demand that our next Legislature overturn SB499. That way all voters, even in “safe” districts, get a say in who their representatives will be in the general election. This measure, which effectively silences non-majority party voters in several districts, never should have passed in the first place. Frankly, given the abysmal turnout in primary elections, they shouldn’t be used to choose an outright winner for municipal elections, either.

The next tool to consider deploying is Instant Runoff Voting, also known as Ranked Choice Voting, which allows voters to choose not only their most preferred candidate, but also their next-most preferred and so on, and then calculates the winner by eliminating last place candidates in order until a candidate receives a majority of the votes. This system tends to discard extremist candidates because extremist candidates tend to be polarizing. (For example, Bernie Sanders might be several Democrats’ first choice, but he’s also many Democrats’ last choice.) Consequently, candidates who are people’s second choices — and who often tend to be more moderate — tend to do better where Instant Runoff Voting is implemented. We may observe this very shortly, as the Nevada State Democratic Party will be using Instant Runoff Voting to process its early caucus ballots this year. 

Another tool I’d love to see deployed (but will not hold my breath in anticipation of) is to just stop paying for partisan primaries with taxpayer dollars altogether. Let Republican and Democratic voters vote in the same taxpayer-funded non-partisan primaries that the rest of us vote in and let them caucus or primary or send blockchains at each other (please don’t) or whatever on their own party’s dimes. Trust me, they can afford it. 

The final tool that we ought to use — whether we want to or not — is a passive one. It is simply to realize that we can change incentives until we’re red or blue in the face, but there are limits to how much we can change voter behavior. We’re not going to change the fact that a majority of Nevada’s registered voters don’t want to vote twice. Heck, in some past election cycles, a majority of Nevada’s registered voters didn’t even want to vote once. Additionally, we’re not going to change the fact (though I stubbornly refuse to give up trying) that voters, even non-partisan voters, have preferred brands that they vote for. Simply put, most voters are short on time and attention and don’t take particularly well to their representatives demanding more of both from them. 

All in all, top-two is a bad idea with several well-documented unintended side-effects. Instead, let’s undo the damage the 2015 Session did to our elections, use Instant Runoff Voting for more than just statewide Democratic Party caucusing, stop paying for major party primaries with taxpayer dollars, or stop trying to nudge voters into voting more than they want to. The best idea of all would be to do all of the above.

Most importantly, remember that no matter how hard you try, no matter what rules you change, no matter how much money you raise, no matter how well you do in PAC-drafted legislative scorecards, sometimes, no matter how hard you try... 

Schmidt happens.

Correction: NPRI's name and status was incorrect in the original version of this column. We regret the error.

David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and an IT professional. You can follow him on Twitter @DavidColborne or email him at [email protected].