FIGHTING ABOUT THE OPEN PRIMARY
Montana  1919 to 2016

How We Got Here --

Long ago a people as rugged as the mountains and big-hearted as the plains made their home in Montana. They governed themselves so all could thrive. But the day came when eastern financiers coveted  Montana's wealth.  Corporate thugs arrived with the intent of bending the people to their will and shipping the wealth back East.

At first, the people didn't fight back.  Which was curious since they liked to tell and retell the stories of the Vigilantes. But the corporate thugs crossed the line when they tried to steal Montana's government. Almost instantaneously, the people rose in opposition. Their spirit caught the financiers off guard.  In 1912, four initiatives were passed to quell corporate power -- Corrupt Practices Act, Selection of U.S. Senators, Presidential Preference Primary, and the Open Primary.

The people leveled the playing field as much as possible without resorting to bloodshed. But they never  lowered their guard. Constant vigilance was still required. The story that follows covers the more memorable altercations and the surprising ways Montana was affected.

If You Are Not a Lawyer --

Events that happened toward the latter half of the century hinge on a Constitutional right called the Freedom of Association. It's our ability to join together to recreate, travel, socialize, vote, govern, etc. The U.S. Supreme Court described it best in [NAACP v. Alabama, 357 U.S. 449 (U.S. 1958)]

The freedom of association is an essential part of the freedom of Speech because people can engage in effective speech only when someone listens and responds.

Today, the Montana Republican Party believes that the Freedom of Association includes the Freedom to Exclude. Therefore, they call Montana's Open Primary unconstitutional. Why? Because it allows the occasional Democrat, Libertarian or Independent to select a Republican ballot in the privacy of the voting booth without anyone knowing they are voting for Republican candidates. So after 103 years, Montana voters are being  chastised for violating the U.S. Constitution.

Timeline

1. As minorities and women demanded equal opportunity, lawyers claimed the right of association to protect members of organizations from harassment from political entities. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461 (1958)
2.  Sanders County Republican Central Committee
  Ravalli County Republican Central Committee
  Stillwater County Republican Central Committee.
  Dawson County Republican Central Committee
  Gallatin County Republican Central Committee
3.  Ravalli County Republican Central Committee etal v. Linda McCulloch, 6:14-cv-58. Complaint for Injunctive Relief, filed 09/08/2014
4.  Ellis Waldron and Paul Wilson, Atlas of Montana Elections 1889-1976, UM Publications, Missoula, MT (1978)  and Revised Codes of Montana 1913 - Party Nominations by Direct Vote Act, pp. 570. Initiative Act, November 1912

A.     The Montana Legislature tried three times to end the open primary in 1919 but failed. One time involved the Montana Supreme Court.

The 1919 Montana legislature, following the lead of Anaconda Mining Company lobbyists, passed bills to repeal the open primary laws. Montanans responded by gathering signatures from 15% of the voters on petition referenda to suspend the laws.  This meant that the laws  could not go into effect until voted on in the 1920 general election.5

When Governor Stewart called an emergency session of the legislature to address problems caused by a drought,  the Company lobbyists convinced him to add bills that would close the open primaries. Once again, Montanans eagerly signed petition referenda suspending the closed primary laws. At the same time, Progressive Republicans asked the Montana Supreme Court to rule that the “emergency legislation” was a sham.  If it was truly emergency legislation, the Montana Constitution said it could not be the subject of a referendum6.

The court ruled that open primary elections posed no emergency. When all four petition referenda went to a vote in 1920, the voters retained the Open Primaries.7

Historical Fact:  In 1920, Joseph Dixon, a Missoula publisher who had served as U.S. Congressman and U.S. Senator, won the Republican Primary as candidate for governor.  In the general election, he ended a 24-year winning streak of Democratic governors.8  The voters also gave Governor Dixon a Republican majority in both the House and Senate.  Adding them up, the Republican legislators overwhelmed the Democrats by 139 to 23.5

In 1924, the resilient Company lobbyists changed their tactics and convinced legislators to humbly ask the voters to end the Open Presidential Preference Primary. The legislative referendum barely passed. But, voters liked being asked to decide the fate of this particular primary and once again elected Democratic governors for the next 16 years.

5.  Ellis Waldron and Paul Wilson, Atlas of Montana Elections 1889-1976, UM Publications, Missoula, MT (1978) page 77
6.  Goodman v. Stewart, 57M 144,187 P641
7.  Ellis Waldron and Paul Wilson, Atlas of Montana Elections 1889-1976, UM Publications, Missoula, MT (1978) page 78
8.  Ellis Waldron and Paul Wilson, Atlas of Montana Elections 1889-1976, UM Publications, Missoula, MT (1978) page 98

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B.     Crossover voting takes more effort in a closed primary, but studies show it occurs at about the same rate in all primary elections held in the United States.

Ravalli County Republicans cried foul in June 2014. More votes were cast for the Republican candidates than predicted. In knee-jerk fashion, they blamed Democrats. The committee claimed a 20 to 30% crossover.9  However, there was no explanation as to how the alleged crossover vote was calculated.  Nor were other reasons evaluated that could have explained an increase in voter turn out .

Following is a simple method to calculate a potential crossover vote in Ravalli County. In looking at the results of the 2012 General Election in Ravalli County for U.S. President and Montana Attorney General, 64% voted for the Republican candidate in both offices. Therefore, of the 28,687 registered voters in Ravalli County, 64% or 18,360 voters could be said to favor the Republican Party.

The total number of Ravalli County residents who cast ballots in the 2014 primary was 10,538.  If 64% voted the Republican ticket, the number would be 6,744 voters. The actual Republican vote was 8,210. Ravalli County Republicans blamed the unexpected number on crossover voting by Democrats. If they are right, the crossover vote was 18%.

In 1958, Republicans decided to champion the return of the open presidential preference primary and put it on the ballot for the consideration of the voters. It passed by 69% and the voters rewarded the Republicans with control of the governor's office for 16 years -- Gov. Hugo Aronson, Gov. Don Nutter, and Gov. Tim Babcock. Perhaps Montana governors would still be Republican but the party experimented with statewide crossover voting. In 1965, the public learned of the Republican error in judgment and suddenly Democrats were back in the governor’s office for 20 years -- Gov. Forrest Anderson, Gov. Tom Judge, and Gov. Ted Schwinden.

So is 18% likely to be enough to swing an election?  Montana history suggests the answer is "no."  In the governor’s election in 1964, Democrats charged Republicans with crossover voting.  Governor Babcock was asked by reporters if the Democrat's allegation was true. The headline read: “Babcock Says There Was GOP Crossover.”9  A 21% statewide crossover of Republican voters tried to promote the weaker Democratic candidate but failed to elect Mike Kuchera, “Polka Mike." With the help of Republican voters, Kuchera actually got more votes than Gov. Babcock in the primary election.10 The Republicans demonstrated that a crossover vote greater than 20% was needed to alter the results of a primary race. The Ravalli Republicans seem to know this and, accordingly, made the 20 - 30% claim in their lawsuit.

A national survey of primary election results “Analysis of Crossover Voting and Strategic Voting”11 concluded that there was very little crossover voting in primary elections in the United States, that the difference in the amount of crossover voting in states with open primaries was not substantially larger than crossover voting in closed primaries, and that the amount of strategic behavior on the part of voters in primary elections rarely affected the election results.

However, crossover voting is not the only explanation for the unusual number of voters choosing a Republican ballot. The Republican races in Ravalli were hotly contested and voters knew some of the races would be close. Candidates urged voters to get to the polls to support them. Competing candidates worked hard to get out the vote. These efforts could easily convince an additional 1,466 Republicans to vote in the primary. That number is a mere 8% of the pool of Republican voters in Ravalli County.

Historical Fact: The 1968 elections that followed the crossover vote revelations opened a new era in Montana politics.  Democrats reorganized the Executive Branch and then supported a call for a Constitutional Convention.  The voters agreed and gave Montana a new constitution with expanded civil rights.12

 9.  Independent Record. Vol. XXI #162. “Babcock Says There Was GOP Crossover” p. 1 (June 3, 1964)
10.  Ellis Waldron and Paul Wilson, Atlas of Montana Elections 1889-1976, UM Publications, Missoula, MT (1978) page 229.  Gov. Babcock won the Republican nomination with 56,425 votes.  Mike Kuchera lost the Democratic nomination with  56,710 votes.  The winner of the Democratic nomination was Roland Renne, MSU President, Bozeman.
11.  R.M. Alvarez and J. Nagler, Analysis of Crossover and Strategic Voting, The Society of Political Methodology, Vol. 3(1991)
12.  Constitution of the State of Montana, 1972, Art. II Declaration of Rights
        Section 1  Popular Sovereignty
        Section 2  Self Government
        Section 4  Individual Dignity
        Section 7  Freedom of Expression
        Section 10 Privacy  

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C.     A political party’s right to associate does not equal a closed primary. If it did Montana would have adopted one after a U.S. Supreme Court ruling in 1981.

I witnessed first-hand the action in the legislative committee hearings and floor debates of the 1985 Montana House of Representatives.  My all-time favorite headline describing the progress of legislation that year was published in the Independent Record:

"Primary bill is stuck in big House mudhole"

"A series of 50-50, party-line votes showed the House unable to pass it, kill it, or get rid of it in any fashion in an hour of wrangling. It was the second time in two days and the third time in a week that Republicans and Democrats had dead-locked on the issue."13

The disagreement was about something so very simple.  How can the Democrats gently break it to the voters that each one will have to make a public declaration of their party preference in order to vote on presidential candidates?  The Democrats were in a vise between the interests of their National Party and the ecstatic Montana Republicans.  

Ecstatic?  I was there and the description is correct.  Republicans suspected that the uproar over the open primary would put Republicans back into the governor's office.  And, that's just what happened -- 16 years with Gov. Stan Stephens, Gov. Marc Racicot, and Gov. Judy Martz.

Historic Speculation:  If Gov. Martz had not laundered evidence from an accident investigation, she may have had a second term.  Then Montana might have elected Gov. Brown followed by Gov. Hill.  These Republican candidates lost their races by less than 2% of the vote. 

For those who wonder why a U.S. Supreme Court decision in 1981 did not result in a "closed" primary after such a heated floor fight, the simple answer is: a 50-50 tie at legislative transmittal means a bill is dead.  But this floor fight was so heated and prolonged that the National Democratic Party decided to give the Montana Democrats an exit strategy.

The court decision that the Nation Democratic Party won against Wisconsin said that the Democrats enjoyed a constitutionally protected right of political association under the First Amendment, and this freedom to gather and advance their shared beliefs was protected by the Fourteenth Amendment.  The party has the freedom to identify the people who constitute the association and to limit the association to those people only. The party rules define their associational rights.15

So it all depends on: the party rules.  The National Democratic Party had a fallback exception16 in their rules that let Montana keep the open presidential preference primary.  Montana's population is small and sends only a few delegates.  So little to no harm is done if non-Democrats in Montana vote on national candidates.

Democratic Party v Wisconsin (1981)
      The Wisconsin Supreme Court considered the question before it to be the constitutionality of the "open" feature of the state primary election law, as such. Concluding that the open primary serves compelling state interests by encouraging voter participation, the court held the state open primary constitutionally valid.
      The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and ... both interests can be preserved. 14

13. Independent Record. Vol. 41 #98. “Primary bill is stuck in big House mudhole” p. 1B (February 27, 1985)
14. Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981)
15.  Pp. 450 U. S. 120-122.
16. Delegate Selection Rules for the Democratic National Convention, Rule 18.C.

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D.     A political party exerting its right to associate can choose to be either inclusive or exclusive.

Our neighboring state, Idaho, often influences Montana politics.  "As in Idaho, so in Montana" is often heard as a rallying cry.  The contest to close Montana's open primary has taken the same trajectory.   Early in its history, Idaho established an open primary that required voter registration but not a declaration of party preference.  It was a model for Montana's Open Primary Initiative in 1912

Election Fact:  Idaho allows both registration and voting on election day.  "As in Idaho, so in Montana."

Idaho Republicans grew wary of the open primary and it's potential for crossover voting by non-Republicans.  Idaho chose not to legislate the change.  Instead, Republicans went to Federal Court for redress.17

The Federal judge noted that the State made no real attempt to show that Idaho election statutes were narrowly tailored to serve a compelling state interest.  Instead, the State only said it had an important regulatory interest in continuing an open primary.  No wonder the State lost.  And yet, don't forget the Party Rules from 1981.

The following announcement appears on Idaho's  Secretary of State website. 

"Beginning in 2011, a law went into effect that restricts an elector to voting only in the primary election of the political party for which he or she is registered, unless a party notified the Secretary of State in writing that the political party elects to allow additional voters (unaffiliated voters and/or voters registered with another party) to participate in the party’s primary election."18

17.  ID Republicans v Ysursa CV-11-165-BLW
18.   Idaho Code  34-904A.
http://www.sos.idaho.gov/elect/primary_election.htm

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E.     The real power to choose precinct committeemen and committeewomen rarely involves a primary election ballot.

The Ravalli County Republican Central Committee states in its complaint to the Federal Judge19  “A party’s precinct committeemen must be elected during primary elections and candidate names must appear on the party ballot.” The names of most individuals running in the Montana primary for precinct committeeman or woman never appear on the primary ballot. Names only are voted on when there is a contested race and few races are contested. Instead the nominees are elected by acclimation of the county governing body.20 A certificate of election for precinct committeeman or woman may be and usually is issued without their names ever appearing on the primary election ballot.

Most Montanans become a precinct committeeman or woman by appointment.21 These appointments occur by acclimation of the county committee at any time during the year other than the primary election.  A state central committee can even appoint an entire county central committee where none now exists.22

While it’s true a county central committee must accept the results of the primary vote, that does not render it powerless to control its membership or influence the outcome of a primary election. The county central committee and the state central committee has the power to appoint new members and, in some instances, expand the number of committee members,23 they are adept at recruiting the candidates that will run for office in the primary, and they engage in a spirited get-out-the-vote effort.

Election Fact: the Montana Libertarian Party does not select candidates via a Primary Election. Parties that wish the State to run and fund a primary election for them must request the privilege through petition or legislation.

19.  Ravalli County Republican Central Committee etal v McCulloch 6:14-cv-00058-CCL Complaint for Injunctive Relief, filed 09/08/2014
20.  13-38-201 (4) MCA
21.  13-38-202 (5) MCA
22.  13-38-203 (2) MCA
23.  Montana Republican Party Bylaws, C-III-A

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F.     CONCLUSIONS

In 1912, Montana voters passed a set of Initiatives that were designed to quell the near absolute control that a single corporation exerted over Montana Government. Two were Party Nomination by Direct Vote and the Presidential Preference Primary Acts (the Open Primary Elections). There were many attempts to get rid of or at least modify the elections during the 103 years of their existence. Through it all, the "open" primary survived. But will it still serve Montana after 2015?

It all comes down to the political parties and the Montana voters.  The political party controlling the governor's office has changed eight times.  The length of time a party controlled the governor's office averaged 12 years.  Five party transitions were triggered by some uproar over the Open Primary Elections.

It's all about Party Rules and Party Control -- party control of its outspoken and unreasonable members.  In 2015, the Republicans may win a lawsuit but lose their influence over state offices and policies for the foreseeable future.   But, no matter how the lawsuit plays out, the Republicans can take the higher ground and continue their support of the Open Primary Elections.  

Montana voters have shown they will retaliate against a party that tampers with cherished values.  They also can hold a grudge for 16 or more years or until the party in power forgets Montana history and takes another swipe at the Open Primaries. 

   

Acknowledgements

The final word goes to the brave men who risked life and livelihood to fight for electoral rights between 1910 to 1912.  Their warnings tell of events that would be intolerable to us today.

"The substitution of direct party nominations of every candidate from constable to president in lieu of the old-time corporation-ridden caucuses and convention system will revolutionize the political status of this state...It will be impossible for the agents of the great copper trust, who boast of the employment of half the men in the state, to coerce or buy a majority of the voters in any given county, or the state as a whole."
Miles Romney, Hamilton Western News (1912)

"(P)rogressivism in Montana presupposes and embraces opposition to the Amalgamated and all its works. In fact to all of us who call ourselves Montanans, it is really of more importance that the tentacles of our Octopus be clipped,... Montana cannot, must not, stand for any further extension of the influence of the big copper combine. The revelation of its sinister power in the far outlying counties, in the presidential convention campaign this spring, must have been a surprise to many and a warning to all who hope to live free men in this state."
Sam Gordon, Daily Yellowstone Journal (1912)

"The basic principal upon which our republican form of government rests is that the inherent right to govern lies with the people themselves. But the growth of the caucus and convention system of party nominations has so far removed the government from the people, that an impartial observer today is able to recognize very little democracy in our politics."
L. W. Pierson, Havre Promoter (1911)

 "Nothing except a thorough going primary law, which will effectively eradicate the last trace of boss control, will be satisfactory to the people of this state... There will be endeavors to compromise and emasculate the proposed primary law. We will be foolish in Montana if we permit any compromise of whatever nature to be made...If our present day politicians want to stand well in Montana, they had better get right with the public, because the public is going to rule."
A.M. Anderson, Livingston Post (1911)"

" Primary legislation is, of course, a crude way of making nominations, but under the present control of the legislative assemblies by the big interests, it is the only way left to restore representative government to the people themselves."
Joseph Dixon     J. A. Karlin, Joseph M. Dixon of Montana (1911)

"Just now the people of Montana are in a somewhat belligerent frame of mind toward the Amalgamated Copper company, but the grievance proceeds only from the unwarranted and unnecessary attitude of that corporation in its effort to control the politics of the Treasure State. They resent having the big company controlling political conventions of both the leading parties in the state, dictating the selection of public officials and brazenly attempting to block legislation which is desired and needed by the people of Montana....its continued interference in the exercise of independent political rights of these people is arousing a righteous wrath, which may, ere long, reach a point where, in sheer self defense, reprisals may be necessary to bring the corporation to its senses."
Tom Stout, Fergus County Democrat (1911)

Please send your comments to the Website Administrator: 
CAROLE MACKIN
open.primary@peoplespowerleague.info

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