OK, how many people do you know who vote for a party, a platform, the values of a party, etc. vs. how many people look at, for instance, the 5th Cong. District primary and decide they like Kurt S. or Steve M. and will tell you the reason why? If they don't want to choose between Mannix and Erickson, are they being nefarious in voting D? If they know Marks or Schrader from way back, are they being nefarious in voting D in that primary?

Roemer was both R and D at sometime in his life. Which part of the platform, values, etc. made him change his mind?

Too much of this debate is theory--a fact-based debate would discuss what would have happened if the HD 25 GOP primary in 2004 had been top 2. All those folks who were really upset Thatcher beat Backlund (only about 250 margin in Marion County, regardless of how much organizational strength was left from the Measure 30 campaign). Just think how history would have changed if the top 2 were Backlund and Pike and Thatcher were left in the dust as the 3rd candidate. But that could never happen because ever voter in Oregon is strongly liberal, moderate, conservative---and no voters say that ideology gets in the way of solving problems? People who think that need to get out more among people who aren't political activists.

The very people who would agree with John Dean that the right wing has dangerously subverted the Supreme Court are largely the same uninformed people who passed Reed's "Open Primary" in WA, and then cheered the Supreme Court decision that let this plan that disempowers any attempt by working people to have a powerful voice through an organized political party stand.

The Supreme Court's decision was clear: Let the provincial fools in the NW help hasten the downward course this nation by setting up a system in which a vigorous party with many challengers for a seat (ie. Democrats) could easily find itself bumped from the November ballot by a high-disciplined authoritarian party (ie. Republicans).

And before all of you Keisling droids start making la-la land arguments in favor of this stupid system, the rest should know that in WA Reed, a Republican, teamed with a populist Grange to pass this in WA. Populism is not progressivism (progressive populism was a historical anomaly and even that movement had an uncomfortable flirtation with the eugenics movement and some suprisingly authoritarian ideas.) Just take a look at how many right-leaning ballot initiatives supported by the Grange fare in WA and OR in Grange country. Of course, some measures that do well in liberal urban areas are just as bad as those that do well in Grange country and shouldn't be on the ballot either. The Grange knew they had an issue in I-872 with which they could dupe the unusually large contingent of ignoramuses in NW urban areas who have a very backward, self-indulgent notion of "progressivism". Reed has certainly proven that in WA, while Keisling and Paulus seem poised to prove the same is true in OR.

So we have a mess on our hands here: Politically regressive populist emotions combined with a situation in which both major parties, and most notably the DPO, have become twisted backward shadows of the best both parties once stood for. This approach won't fix the problems with our parties and it won't give us good elected representatives. It will give us exactly what we deserve, though.

This is a bad idea for lots of reasons. The first two that come to mind are that the parties have the right to control who votes in their party, and more important, at least to me...what if you have two neocons and seven progressives all on the ballot, which seems more likely to occur than the reverse. Say goodbye to the state.

I'm glad to see folks are paying attention to this misguided measure. The measure is supported by big business because it will elevate the expense of primaries (more voters that need to be talked to), helping candidates who can get early big money support.

Nick -- Thanks for your post. First of all, I'm a big supporter of same day voter registration. Second, I'm stuck on your David Duke example. That 1991 Louisiana race is cited all the time by critics of a nonpartisan blanket primary.

However, can you give me a few other examples of bad runoffs under the LA system since then? And more importantly, what were the lasting policy implications of the people ultimately elected.

It seems to me that any electoral system is bound to have examples of extremists/corrupt people/idiots making it to a runoff once every decade or so. In fact, I think you could cite several examples of those type of people being nominated and elected under the more traditional primary system used in all the other states in the U.S.

Under Oregon's current system, we nominate Democrats and Republicans every primary that, by definition, do not represent the ideological center of their districts. In the general election, they then must stick to those out of step positions or miraculously change/moderate their views in the course of just a few months.

Unlike your 1991 example, my example occurs every election cycle and directly effects the quality of legislation passed at the local, state, and national level with implications for generations to come. I personally find that to be a much greater problem than the 1991 Louisiana primary.

By the way, the best election reform package in Oregon would include same-day voter registration, robust public financing of campaigns, and blanket primaries.

I'm so tired of people calling it an "open primary," it is not. It's a top two primary system.

from progressive trail:

"Why do proponents of the proposed ballot initiative to restrict the general election to two–and only and always two--candidates (a top-two primary system) keep trying to sell the idea this is an “open” primary?

The Oregon Supreme Court rejected their argument that their measure should be called an “open” primary. The US Supreme Court has explained the system is not an open primary which allows voters to vote in either parties’ primary, but what is called a “blanket” primary, instead."

However, can you give me a few other examples of bad runoffs under the LA system since then?

"Bad runoffs" is not why even LA has dropped this system, Jake. For all of you (and particularly Sal, one of the most pseudo-informed commentators who "graces" this blog). LA abandoned this system about a year ago now because for Federal congressional elections, the NOVEMBER election was the PRIMARY. They then had to run a runoff (if one was needed) in DECEMBER. This was costly, and left LA in a position where only the most well-connected (read party approved) candidates even bothered to run.

Now if people who think they know so much would bother to study the actual court rulings, they would learn the reason is that the courts in Love v. Foster and Foster v. Love found that a fundamental federal voting statute from the 1800s barred a state from declaring a winner in a race before the first Tuesday after the first Monday. Reed and Kiesling argue the WA and proposed OR version don't actually declare a winner in the pre-November primary and so there is no problem.

What they DON't point out though, is the REASON the courts cited in ruling against LA based on that statue, and then took control of LAs system for Federal election with the aforementioned result. Namely, the deeper issue, as explained by the courts citing the statute, they ruled against LA for declaring a winner before the first Tuesday after the first Monday because this would announce which PARTY had won before a unified voting day, exactly the issue Nick is in effect citing here. Congress was trying to prevent this because they felt it could upset elections in other states who had a genuine competitive general election between parties in November. The reason is that control of the House and Senate has nothing to do with individuals, but is solely determined by which party gets a majority.

Aside from the sociopathic tendencies of the current Court, for those who think this is off the mark or it would have been cited by the Court --- wrong again. Because we live in such narcissistic times, and populist jungle primaries are examples of that, the geniuses in WA made a FIrst Amendment argument and not the statutory argument that at least put LA on the path of finally dumping their version of this system. As we saw, the Court looks at First Amendment arguments in a chaotic and cynical way: Everybody thinks they have one because they didn't learn to play nice, or more likely to respect arbitrary authority in the current Court's view, in kindergarten. The Court saw no need to take up substantive issues that weren't raised in this situation where a navel-gazing majority in WA wanted to cut their nose to spite their face, as they have.

I can't believe this is a serious proposal in Oregon, what next? undemocratic cacuses? someone is putting Baileys in their latte'. How can you possibly see this elimination of the party system as good for voter turnout? If you end up with 2 candidates from the same party as the only choice, you've eliminated participation by the voters in the "out" party, and diminished incentive in the "in" party. NO-this is a non-starter

SCOTUS says this is not an “open primary.” In the Washington State Grange decision the US Supreme Court explained that the kind of system is a “blanket” primary (quote at bottom, as well as part of an earlier post on BO from Richard Winger, someone we all can agree actually knows the ballot access process).

In Keisling v. Myers, the proponents argued that the ballot title should include the term “open primary.” Oregon’s Supreme Court called their description “inaccurate.” “[P]etitioners' assertion that adoption of the proposed measure would simply set up a “parallel” primary system is inaccurate. * * * [T]he new system would obliterate the old." The Court added that the system would radically alter the general election ballot as well.

What’s an “endorsement” anyway? This is not a term defined in statute or the ballot measure. Keisling’s measure allows party “endorsements” (not defined anywhere), but uses both the terms "nomination" and "endorsement" in various sections, which strongly implies each word means something, but not the same thing.

In Washington State Grange SCOTUS did find that WA law allowed for parties to nominate candidates, but OR law does not have a separate nominating process for the major political parties (currently only Rs and Ds are “major”). In OR the defined nominating process for Rs and Ds is the partisan primary that this measure would replace [ORS 248.007(7)]. In addition to not providing for a major party nominating process separate from the new blanket system, the only actual process for nominations which would be left in the statutes if this measure becomes law is the nomination process for minor parties (ORS 248.009), which the measure fails to mention at all, so presumably does not disturb or replace (drafting error, intentionally targeting only the Ds and Rs, presumption that Rs and Ds can adopt some bylaws without state approval to conduct “endorsement” caucus??)

Failure to provide for a true party nominating process would likely be a fatal Federal Constitutional flaw. In 2 recent cases which considered forcing parties to allow any voter to vote in their party primary by choosing that partisan ballot (true open primaries) courts held that there had to be specific alternative nominating process with the open primary merely an option.

In Miller v. Brown, 503 F3d 360, 368 (4th Cir 2007) (Virginia case), the trial court held that forcing a political party to select its candidates through an open primary severely burdened its right of free association. The court rejected the state’s arguments that it had such compelling interests in forcing the First Amendment deprivation upon the parties. The 4th Circuit upheld the decision, all times for appeal have lapsed earlier this year, and State of Virgina will amend law.

On March 5, the 5th Circuit in New Orleans heard Mississippi Democratic Party v. Barbour. Mississippi's only method of nomination is their open primary, and last June a U. S. district judge declared the state-mandated open primary unconstitutional. (However, it did not enjoin the recent Miss primary, which was held under the “old” rules).

The district court (trial court) held:

In order to correct this constitutional problem, the State of Mississippi can either (1) keep [the challenged statute], require mandatory party registration (with the option for a voter to designate him or herself as unaffiliated) * * * and consider the option of authorizing the parties to allow unaffiliated voters to vote in their primaries but not registered members of an opposing party; or (2) the State can fashion some other form of primary system that does not infringe on political parties' right to disassociate opposing-party members from possible party-raiding

Mississippi State Democratic Party v. Barbour , 491 F.Supp.2d 641, 661 (N.D. Miss. 2007)

SCOTUS on correct terms:

“The term 'blanket primary' refers to a system in which 'any person, regardless of party affiliation, may vote for a party’s nominee.' California Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A blanket primary is distinct from an 'open primary,' in which a person may vote for any party’s nominees, but must choose among that party’s nominees for all offices, ibid., and the more traditional 'closed primary' in which 'only persons who are members of the political party . . . can vote on its nominee,” id., at 570.'”

The top-2 primary is not an "open primary." That should be clear from the SCOTUS note, political science texts and the opinions of election law experts. As Richard Winger of Ballot Access News has repeatedly explained, here in a post to BlueOregon about an Oregon legislative version of the blanket primary which failed:

"BlueOregon would do a service to everyone, if it would use the vocabulary used all across the U.S. The type of primary defeated in the Senate yesterday should not be called "open primary". "Open primary" is defined in many political science textbooks, and in US Supreme Court opinions. It means a primary in which parties each have their own primary ballot." I think the Oregon Independent should also do its readers the "service" of using the correct terms for this process.

BTW--the Independent Party of Oregon has not taken a position on the blanket primary measure.

If you don't like caucuses as a primary selection method, you can just about be assured the the Parties will go to self financed caucuses in the face of such nonsense. You cannot MAKE them play your way, you can bribe them with state financing, but that's about it.

Why am I not surprised to see Peralta coming down where he does? That's not to indicate there's a lick of sense in it...

Jeez, Jeff, you usually make very cogent arguments, but this one is really out to brunch. Maybe too much energy going into digestion?

You state: "The Green Party's platform could therefore easily be ignored if two Dems regularly win the top two seats: what's in it for them to talk to the 10% of enviros?"

The major party candidates already ignore the Green Party platform most of the time, anyway. And when they embrace part of it, perhaps it's because that plank is the right thing to do.

The argument that "this system would virtually stop any minor-party candidate from ever seeing a general election" is totally backwards. What is being called a primary in Keisling's proposal is really the first general election (which, it occurs to me, is one meaning of the word "primary"), after which the top two vote getters go on to a run-off election. Thus any minor party candidate who can qualify for the ballot will be able to make his or her case to the entire electorate.

In our current system, the state has decreed that only the Republican and Democratic parties are legitimate. There are only Republican and Democratic primaries. The state does not conduct a Libertarian Party primary election, or a Green Party primary election, or an Independent Party primary election. These minor parties have to select their candidates through other means, such as nominating conventions or caucuses. About a third of Oregon's citizens are not affiliated with the two major parties. Why should their tax money go to pay for closed primary elections of the two major parties? If the parties want an election to select their candidates, they should pay for it themselves.

The Keisling proposal would definitely make more legislative elections competitive. I'm not so sure they would all become more centrist. In my Southeast Portland enclave, I could definitely see an articulate and engaging Green Party candidate mounting a serious challenge to a conventional Democrat.

I suppose the biggest change is that the Keisling proposal would render party affiliation less relevant. And that's why is most vociferous opponents have deep financial or emotional stakes in their parties.

In Washington State Grange SCOTUS did find that WA law allowed for parties to nominate candidates, but OR law does not have a separate nominating process for the major political parties (currently only Rs and Ds are “major”).

If this is an accurate rendition of the decision (and I have no reason to believe it isn't), it further illustrates the problem with the WA decision. Namely, SCOTUS is condoning a primary that can occur before the first Tuesday after the first Monday in November so long as it is NOT really intended to choose party nominees (an "open primary"), but instead winnow down the list of contenders for a seat (a "blanket primary").

They have directly, but presumably purposely and apparently relatively unnoticed, struck at the SCOTUS precedent at the heart of the Love v. Foster and Foster v. Love in LA already discussed above.

If WA holds a Federal congressional primary before the first Tuesday after the first Monday in November, that primary inherently has the possible outcome and statutory of intent, of moving an election to a point where a party is declared as a winner if the top two are from the same party. The statutory intent of this outcome is undeniable: The very idea of the blanket primary is to reduce the number of contenders and the law prevents new challengers from being on the ballot in the general election even if the primary winners are from the same party.

That state statutory intent runs directly counter to the intent behind the Federal statute cited by SCOTUS in the LA cases of preventing any state from making known which party will hold their seats in Congress before a single national, unified election day.

If we get to the point that the blanket primary has to be challenged in OR, I hope the lawyers launching the lawsuit are swift enough to focus illegality of this system for at least Federal congressional offices, rather than the navel-gazing but clearly flawed and irrelevant First Amendment argument. Reed and Keisling, with legal advice from decidely non-progressive sources, have been careful, and now obviously successful, in traversing the First Amendment argument. Most of you need to spend some time thinking about why you don't get that rather than making up essentially nonsensical First Amendment arguments. Some of you of course are just anti-party, which is a separate question that indicates a fundamental ignorance about the complex series of real-world balancing mechanisms that are the real genius of our partisan, representative, democracy

"If you don't like caucuses as a primary selection method, you can just about be assured the the Parties will go to self financed caucuses in the face of such nonsense. You cannot MAKE them play your way, you can bribe them with state financing, but that's about it."

Where will the funding for self-financed caucuses come from? How many county, cong. district or state central committee meetings regularly attract more than 50 voting members?

My guess is this is more about theory than about how folks act in the 21st century.

First, why would this have been worse in the 2004 HD 25 situation than what happened (Thatcher defeated Backlund, from all appearances, no organizational support for Pike the Dem. nominee that year)? Or does no one want to talk about that because of what an old friend describes as "a brilliant theory mugged by a brutal gang of facts"?

Does it not matter that over 20% of the population is not eligible to vote in primaries unless they register partisan and then re-register NAV after the primary?

The people who oppose this idea because by golly parties have rights!! don't do their cause any favors.

"Election" is defined as an event at which someone can be elected. No one can be elected in the May primary in Phil Keisling's initiative. So, the May event is not an "election". Even if someone gets 100% of the vote in May, he or she still must run in November with write-in space on the ballot. Under the initiative, the May event is only a device for severely winnowing out all but two candidates for the "election".

"Election" is defined as an event at which someone can be elected. No one can be elected in the May primary in Phil Keisling's initiative.

I'm not sure what point Winger is trying to make here: An attempt at being precise to further illuminate an argument in support of the initiative or not. Regardless, this is not correct. "Election" may be defined in a simple dictionary definition this way, but this is not a complete definition and one that is misleading at best even in the present case.

First, we talk about union elections in which rank-and-file "elect" to be represented by a union. Also we talk about an election on an initiative in which people are "electing" to enact what ever law is embodied in the initiative.

Keisling's brain dead initiative does in fact have the explicit intent of "electing" a party in the primary because it not only allows two candidates from the same party to be the only options in the general. As a winnowing election it's intent is also to prevent by a law any party which was eliminated in the primary from having any other path onto the general ballot.

So Richard, you need to clarify your point, because your comment is simply false on it's face.

Currently, minor parties can get their candidates on the ballot for general elections in the same way the major parties do--by nominating and running them. But this system would virtually stop any minor-party candidate from ever seeing a general election.

This is not so.

Currently major parties must use the partisan state-supported vote-by-mail primary exclusively [ORS 248.007(7)] and potential candidates file certificate or petition of candidacy with SoS (SEL 101). The measure eliminates the current primary process and requires a blanket primary only for those parties which are “otherwise required “ to hold a primary (which in fact are only Rs and Ds).

Minor parties have an entirely separate statutory nominating process [ORS 248.009], their candidates do not file anything with the state, and the party itself files a certificate of nomination, unlike the certificates and petition for candidacy for the primary, filed by the candidate. These particular statutes are left undisturbed and while the top-two from the blanket must be on the general election ballot, the measure does not expressly prohibit the minor nominees from being on the ballot (regardless of what Vance Day or whoever says what about minor parties, the words of the measure trump anyone’s idea of an op-ed or Voters Pamphlet argument). Whether just bad drafting or a strange desire to invite lawsuits, who knows?

The measure does not itself forbid minor parties from nominating candidates, while it allows only “endorsements” by the majors, as it eliminates their nominating process. At most, an endorsement is an expression of approval or preference, such as a union endorsing a candidate, it does not currently have any legal significance. "Nomination," however, does have legal effect as it is a process which assures ballot access for the nominee of a qualified party in the general election. An “endorsed” candidate has no such assurance.

Also, SCOTUS, in deciding Washington St Grange merely showed its new reluctance to find statutes facially unconstitutional, but invited and seems to expect another challenge to WA primary system “as applied,” if and when the parties can show that there was actual voter confusion about who party nominees were-- which they will.

As for Foster v. Love, SCOTUS held only the portion of LA blanket primary which did not allow for a top-2 runoff and declared a winner in a race for a federal office when a candidate in the blanket primary received 50% +1 votes. In such a case, this winner would be determined prior to the date of the election called under the Elections Clause of the Constitution (1st Tues after 1st Mon in Nov). This is how OR conducts elections for nonpartisan races where a candidate can win outright in May if she gets 50% +1 (happens very often in judicial races), but it is not the system proposed by Keisling’s measure–there is always a top-2 runoff, so I just don’t see vulnerability under the Elections Clause for federal races.

Jenni, my point is this: "the party" doesn't pay for anything. A vote of the central comm. or whoever authorizes and expenditure (sometimes after heated discussion). The Treasurer or whoever is authorized, writes the check, and that is listed on the C & E for the party as an expenditure.

There are a lot of logistical questions to be raised about the procedure of caucuses. And if the individuals in any central comm. decide there is a better way to spend the money than holding a caucus, no amount of theory could force those folks to spend the money and other resources to put on a caucus.

But then, in the downstate legislative districts, often folks are glad to get one candidate to run, much less have a contested caucus.

As for Foster v. Love, SCOTUS held only the portion of LA blanket primary which did not allow for a top-2 runoff and declared a winner in a race for a federal office when a candidate in the blanket primary received 50% +1 votes. In such a case, this winner would be determined prior to the date of the election called under the Elections Clause of the Constitution (1st Tues after 1st Mon in Nov). This is how OR conducts elections for nonpartisan races where a candidate can win outright in May if she gets 50% +1 (happens very often in judicial races), but it is not the system proposed by Keisling’s measure–there is always a top-2 runoff, so I just don’t see vulnerability under the Elections Clause for federal races.

Linda, your reading of Foster v. Love is typically superficial of supporters of Keisling's system - whether that is intentional or indicates the limits of your intellectual skllls is something only you can decide. Your critical thinking skills are poor here, and it is important to show people how facility with language, which is relatively easy to attain, is not representative of critical thinking ability, which is not nearly as easy to attain, as you demonstrate.

The reason for the Federal statute cited in Foster v. Love, as I've already indicated, is because the real concern of the Congress behind the Federal statue was stopping the possibility one state could influence elections in another state by declaring what PARTY had actually won a seat in Congress before the designated election day BECAUSE control in Congress is determined by whichever Party has the most seats. This is exactly the pathological outcome Nick is discussing here.

Remember too that these people were still had keen knowledge of pluralistic Parliamentary government in which people specifically vote for a party by voting for the party representatives. Our Founders explicitly rejected this type of parliamentary style government, while trying to retain representative government, and since early on Congress did what was necessary to sustain the distinction between our form of representation and parliamentary-style representation. In this case that means setting an election day so that no state could influence another by declaring a winner for a state and therefore declaring what PARTY held the state's seats in Congress.

So your argument is irrelevant to the deep issue the Court was deciding, and your dismissal of the challenge on the superficial issue is simply flat-out wrong. They simply did what Courts are bound to do: Go to issues as presented and find the clearest issue on which to rule. Through just reading one part of the statue and congressional record, the could prohibit LA from declaring what party had won before the November election day by simply prohibiting declaration what person had won in a pre-November primary without getting any deeper into the matter.

Of course, it would be up to plaintiffs challenging the law to bring this issue up to the appeals court (SCOTUS can do whatever it wants). Your argument would be borne out in court, however, if those arguing against the blanket primary shared your particular superficial and misleading analysis of Love v Foster. In WA they choose to make a First Amendment case in the appeals system because they thought was the easy win, and couldn't bring up anything beyond that in SCOTUS that they weren't asked about.

And by the way, for those who think "write-in" is a valid and good way to the ballot, I'll remind you that WA state's most proximate experience is ultra-right-winger Linda Smith (R) from the WA district just north of PDX. The "Hazel Dell Housewife" demonstrated the results populist democracy most commonly delivers and that the Founders actually recognized was inimical to good government that preserved liberty.

I am not a supporter of the ballot measure; I think it poorly drafted, but I do know how to read a SCOTUS opinion. The decision is not about some hidden legislative intent, it clearly is based on the wording of the LA statute (since amended).

It is useless to discuss anything further with someone so completely divorced from civil discourse. But in case anyone else cares about the actual holding in Love v. Forster, the only aspect of the LA open primary found unconstitutional was the declaration of a winner outright in the October primary in a race for federal office This is also clear in the 5th Cir order on remand [synopsis of Love v. Foster, 147 F.3d 383 (1998) follows]. LA "solved" the problem by moving the blanket primary to Election Day, and moving the run-off (if no one got a majority) to later.

Scalia, et al, in majority opinion state:

The State's provision for an October election addresses timing quite as obviously as § 7 does. State law straightforwardly provides that “[a] candidate who receives a majority of the votes cast for an office in a primary election is elected.” La.Rev.Stat. Ann. § 18:511(A) (West Supp.1997). Because the candidate said to be “elected” has been selected by the voters from among all eligible office-seekers, there is no reason to suspect that the Louisiana Legislature intended some eccentric meaning for the phrase “is elected.” After a declaration that a candidate received a majority in the open primary, state law requires no further act by anyone to seal the election; the election has already occurred. Thus, contrary to petitioners' imaginative characterization of the state statute, the open primary does purport to affect the timing of federal elections: a federal election takes place prior to federal election day whenever a candidate gets a majority in the open primary. As the attorney general of Louisiana conceded at oral argument, “Louisiana's system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day.” Tr. of Oral Arg. 6.

On remand: The Court of Appeals, Politz, Chief Judge, held that: (1) Louisiana's practice of holding, and in most instances deciding, congressional elections prior to the federally established uniform election day is in direct conflict with federal law, but the remainder of Louisiana's election code, including open primary system, is not in conflict with the Constitution or with any federal statute, and (2) unconstitutional provision is severable from the remainder of the legislation.

Lindependent: Your comment about hidden legislative intent demonstrates you don't know how to actually read and properly understand an appeals court opinion, SCOTUS or otherwise.

First, be clear I pointed out how LA ended up with a bad system from the outset and how that is an undesirable outcome.

Second, and think real hard about this, the question is not whether the specific finding in Love v Foster for the specific facts in that case are precedent for this case since I never asserted that. The question is whether the underlying issue that led to the specific finding in Love v. Foster and Foster v. Love this case also applies to the WA primary or Keisling's dumb plan. Just to make the point clear to you: The Federal statue in fact doesn't even directly and specifically prohibit what LA did. It only establishes a Federal election day without and words stating why.

As Scalia's own words you cite show, the Court had to logically reason to the conclusion that the LA system had to be illegal because it produced results that they interpreted as conflicting with Federal law, after actually going into why the Congress had passed the law. Although LA only declared in a candidate to be a winner in specific contests which can't be forseen, just as the blanket primary would declare a party to be a winner in specific contests which can be forseen, it was up to the Court to apply their interpretation this conflicted with the statute declaring a Federal election day. And don't forget, the Court could even have decided the Federal law was an improper burden on LA. So your comment essentially just focused on the specific finding for the LA case is irrelevant and vacuous for purposes of the debate on whether the blanket primary is legal (whether it is constitutional is irrelevant since the constitution doesn't specify time, place, and manner specifics of election such as the election day.)

Third, no matter how you want to go off in the weeds with your irrelevant point, it is still just irrelevant. Just as in the LA cases, the courts would have to look at the blanket primary in terms of whether one can reason to the conclusion it leads to consequences that violate the Federal law, whose meaning has to be informed by what Congress expressed as the reasoning for passing the law. Referring to this as some hidden "legislative intent" is simply childish, but typical of the kind of stupidity that is all too common today. There is nothing "hidden" in the record about what the Congress intended way back over 150 years ago when they passed the law, even the court discussed it in their rulings. The Congress said their intent was to establish a single national election so the results in a state didn't in anyway effect the results in another state, even though they didn't put that intent in the statue setting a single national election day. If a state declares a party will hold one of it's seats in Congress, that is expressing a result to the other states before the designated election day in November that is nor more or less substantively prejudicial than saying which representative of the party will occupy the seat.

So you're right. There is no use in YOU debating the point because you don't have anything intelligent to say. And note, you were treated quite civilly, whether you understand and accept what that term means or not, because you were given the courtesy of having the substance of your dumb and irrelevant point acknowledged and refuted. Too bad if you don't like it.

And just to demonstrate why declaring a party to be a winner before the Federal uniform election day is actually more informative and potentially prejudicial than declaring a candidate to be a winner, try this thought experiment (you're excused Lindependent because this is probably beyond you):

If I were to randomly name 10 states, would you even know the names, much less party affiilations of even a large minority of Representatives and Senators from those states? So if you were told those people had won on the first Tuesday after the first Monday or a month before, would it have even meant anything to you?

But now if you had been told which parties had won seats in those 10 states a month before the election, would that be informative? And if you were told, given the current composition of the Senate, that 10 seats had switched parties in say May, tipping the balance back to the Republicans, would that be informative and potentially even effect how or whether you bothered to vote? Would it affect the business of the Senate?

Except for boneheads like Lindepdent and Linda, is the point clear now why the underlying issue raised in Love v Foster about a Federal uniform election day is applicable to a blanket primary that could declare a party as the winner well months in advance of the fall election?

Dan, do you support Keisling's measure or not? I think that is all that matters right now, your other comments nothwithstanding.

What I laid out is why SCOTUS, if the current court actually respected precedent and the law, would strike down the blanket primary in a heartbeat. Since, as I pointed out in earlier comment, as John Dean and many of us recognize they don't. So I have no confidence SCOTUS will do the right thing with the result being the very negative consequences outlined in the thought experiment. After all, as I also pointed out, they are quite content to stand by if Washingtonians and Oregonians want to cut their nose to spite their face with jerky primary systems.

What I also laid out is why Lindependent and Linda's statements, which are obvious statements about Love v Foster and Foster v Love, added nothing of substance to the debate because their obvious point had already been assumed at the outset. It was NEVER asserted that the specific decision for the specific facts in Love v. Foster and Foster v. Love would directly invalidate the blanket primary. Instead, the unambiguous point from the outset was that underlying issue raised by the LA cases applies to the blanket primary. The thought experiment demonstrates why.

So what point are you're trying to make? That's significant because your subsequent comment about the effect on access to the general ballot by minority versus major parties is an incomplete point, which begs the question if you were making it just for the sake of being heard or to actually make a point that matters to average folks as they decide how to vote.

One the one hand, if indeed the measure allowed minor parties to have direct access to the general election ballot through another nominating process, but major parties could not similarly opt out of the process, they would have a pretty persuasive unequal treatment case that only a truly corrupted appeals system could ignore. (No comment whether our dumb system of electing judges, as in making judges politicians, would get it right.)

On the other hand, if every party could opt out, what would be the point of the measure except to eliminate public participation in the nominating process via a primary? That is, does anyone believe any party would subject themselves to even the chance of being bumped from the general election ballot? And since a party would only opt out, as a practical matter, by going to a closed convention or caucus process that is dominated by party activists, how would that in the end make the process less dominated by parties?

So Don, what contribution are you trying to make here, either for or against the measure that matters where the rubber meets road? It's fine if people want to simply talk for the sake of talking, but they are just repeating talking points and focusing on details that most folks I've asked could care less about. My SO has asked me repeatedly why anyone would bother even interacting with the kind of people here who debate points that don't matter and who seem unconcerned with what really does matter. That question is starting to look wiser and wiser.

The way I see it, the major parties are perfectly free to nominate whatever candidate or candidates they wish to be on the ballot by whatever rules they choose. They'll just have to do it on their own dime as opposed to the current system where the D's and R's get to have their respective nomination processes subsidized by the state.

(I'm a liberal who votes Democratic 95% of the time (Greens and the rare left-leaning Libertarian make up the other 5%), but I stubbornly refuse to register as such because of the special treatment the major parties get under the current system)

Party members should decide who they want their party's nominee to be, not those outside the party.

This point was made by a number of commenters, but fails to address the real problem here: More than 30% of Oregon voters are PAYING for a primary in which they have no say, and they are stuck with the results in November. Your freedom of association is sacrosanct. . . until you require me to pay for it. At that point, I get a say.

Regarding minor-party access to the general election, I'm curious why that matters? Seriously, why is it important to maintain general election ballot access for those who lose elections 99.9% of the time? They'll still have access to the primary ballot, along with everyone else, and under this system minor parties will actually have a better chance of winning in ideologically homogeneous districts.

We already restrict general election ballot access. In the upcoming Portland Mayoral and City Council races, I have an unlimited choice in the primary, but only a choice of two in the general election. Am I somehow disenfranchised because I can't vote for Pavel Goberman in November?

Last point. I like that Kiesling's proposal takes away the impact of spoilers in the general election. By limiting the general election to the top two, all the game-theory stuff is confined to the primary. There's no Nader or Frohnmayer problem. Voters will have to choose between the two top candidates.

Regarding freak ideological outcomes, this same possibility exists under our current, winner-take-all party primary system. If four Democrats run for the party nomination, with three moderates and one hard-core leftist, it's possible for the leftist to win with 26% of the Democratic vote even though 74% of Democrats preferred a different candidate.

The downside to this proposal is that in some extreme hypotheticals, you could end up with two Democrats or two Republicans in the general election. I think voters are strategically smart and such a situation will be exceptionally rare. The real question is this: Do the benefits of this new system outweigh the small possibility of a bad outcome? My answer is yes.

The Top Two election system seems to be getting used more by candidates to pander to NAVs than to seriously address specific inadequacies of elections in Oregon.

The Top Two method seeks to deny parties the ability to nominate their vetted candidates to the general election, which would spite the established major parties (which some want although the states have no right to do so) while trampling on the final rights spelled out in the the First Amendment:

"Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

While the Founding Fathers hoped to prevent the sectarianism fostered by political parties, human nature and the cold realities of the "plurality takes all power" political system which they set up quickly dashed their idealistic hopes on that score. The two-major-party system is the inevitable result; to change that would take more than fiddling with the ballot.

In a representative democracy, in order for an assembly of citizens with a common set of grievances to effectively petition the government, they must be allowed to form a political party which can nominate candidates responsible to them to stand in the general election. That political reality guarantees that the Top Two system will be mired in legal challenges that will ultimately invalidate it.

Second, I'm PAYING for school systems downstate in which I have no say. I also PAY for roads I don't drive on, parks I don't go to, and libraries I've never been to.

The key difference being, of course, that you don't have to join an ideological group in order to take advantage of those roads, parks, and libraries. Your suggestion that it's okay for the government to force NAVs to join a political party if they want to participate in the nominating process is anathema to the First Amendment's freedom of association clause. Freedom of association also means freedom from association. And the government shouldn't limit your franchise because you refuse to join a political party.

Kiesling's proposal is one way to make the system more fair. We could also allow candidates to run as "non-affiliated" and let the NAVs nominate someone, while also allowing all minor parties access to the primary ballot. Or you could let NAVs pick which partisan ballot they want on election day (a true "open primary"). But the current situation is untenable.

Keisling told me that tax payers should not pay for the process of nominating a party candidate. With the cost of a primary at more than10x what a party can raise, the result will be a change to a caucus system. Caucus systems are good but participation drops from 40 to 10 percent which can hardly be called progress for those who want to expand participation.

Further, the state pays for party registration because of the primary. Without a partisan primary, the state has no interest in party registration and could save money by eliminating all party affiliation on voter registrations. And, with vote by mail, there is no need for any precinct size limits. Counties could save money by eliminating precincts and leave only voter required districts, i.e. ones with different ballots. With the elimination of precincts, one can eliminate the cost of electing precinct committee persons for which the state would no vested interest.

Basically, if you believe the state support of party nomination to be the problem, this ballot measure is a half measure.

SH, it's not that the questions have gotten too hard, but that the post has been up for over a day, and is slipping down BO's front page. That's usually the end of wide discussion here. I was wanting to discuss the proposed election system change, but was offline Sunday and missed much of it. More's the pity.

Miles is taking the position is one worthy of discussion; although I disagree with it, I recognize it is widely held. The idea that the government is forcing one to join a party to avoid disenfranchisement seems to be a basic misunderstanding of the political process.

The idealized form of democracy where everyone has the right to vote on every political decision made is obviously unpracticable, which is why the framers of the Constitution resorted to representative government. The sheer numbers of concerned citizens necessitates the choosing of representatives of like-minded constituencies to hash out the decision that best serves the citizenry as a whole. The political party must be allowed to operate as distinct polity to push their specific agenda. Those who do not ascribe to the party ideology must find another forum to take their concerns to come to action.

SH wrote: There are various theories as to whether it would allow other routes to the general election ballot. So far the Oregon SC has said no. SCTOOR has not "held" anything about the substance of the measure, it has ordered revision of a ballot title based n what the proponents and opponents claimed about the effects of the measure and what it would do.

Everyone seemed to think the measure was as Keisling, et al., described it, but what the drafters "meant" and the opponents' arguments about what the drafters say they meant, is entirely different from what the words actually say--that waits for another day in a courtroom, if themeasure qualifies for the ballot, no doubt.

The sheer numbers of concerned citizens necessitates the choosing of representatives of like-minded constituencies to hash out the decision that best serves the citizenry as a whole. The political party must be allowed to operate as distinct polity to push their specific agenda.

I agree, Ed. So why do the two major parties insist on enforcing their duopoly at the exclusion of other parties? Why not allow the Greens and Socialists and Libertarians to use the primary for their nominating process? And as I noted above, there's also nothing stopping us from allowing an "unaffiliated" category with unaffiliated candidates running for major offices.

The problem that those espousing the civic virtues of the party primary have is explaining away things like HB 2614. The parties like the current system because it keeps them in power, and 2614 proves that they'll do anything to retain that power. So as a lifelong Democrat, I'm telling you that I don't trust my own party on the issue of the voting franchise. Open primaries aren't perfect, but they're better than what we currently have.

With the passage of this blanket primary ballot measure, I would expect the parties to change to the caucus system to nominate candidates for office. Several states have perfectly workable systems and they are cheap to administer. The key difficulty is credentialing and this seems to be solved by holding all caucuses on the same day. Same-day caucuses may need a bit of legislative help to enforce, but for you the-parties-are-the-problem bunch, such legislation would be free.

Without same day caucuses, we’d need some sort of public announcement of party affiliation. Just think how interesting that would be, especially when someone challenges a registrant, as not being a true party member. However, with well established caucuses, virtually everyone in the room is known. They work on campaigns and party events and are part of a loosely knit group. And, they are neighbors so strangers are instantly recognized and mercilessly recruited for numerous political jobs. I’d expect crossovers to be extremely rare under these circumstances and I certainly never heard of one.

The average voters are cut out of the process and only one candidate for the party ever makes it to the ballot. Occasionally, a rogue might try to overcome the party endorsement but the result is almost always the same. The fractured party does not recover for the general election.

The biggest loss is the ability of the party to see how the candidate campaigns and how well their message resonates with voters. I believe that the quality in a politician that wins in caucuses and conventions is very different from that which wins in an election. I also believe we are better served by the moderating effect of voters who are not party activists.

As much as I enjoy the caucus system, I would rather not see Oregon go this way.

The Keisling ballot initiative provides for an “endorsed” label on one of the candidates of a particular party. The process for such endorsement is not specified but it is very clear that the Democratic Party cannot raise the money for a partisan vote so the likely choice would be a caucus process. The result of an opportunity to endorse a candidate would be a convention and there are plenty of examples of how to do establish such a process. Basically, a few dedicated party activists will engage in this kind of endorsement activity and we’d lose the validation of average voter.

My belief about the effects of the blanket primary comes from my experience with the Minnesota caucus system. The legislative elections there were non-partisan and the endorsed label was extremely valuable. We fought bitterly over the endorsement and only rarely did anyone run to contest the endorsement. Of course there were some who tried but I think you all know exactly what kind of candidate they were.

This discussion is very valuable and the topic is very important for the state. I’m sorry this is now buried so deeply in the blog as there is still much more for us to discuss.

Dan, I have heard you speak and think highly of your reasoning but I am perplexed that you would advocate for a system that encourages ringers. However, such ringers are easy to spot and unlikely to succeed. A successful candidate for the legislature will need >$200K and a large number of dedicated volunteers. Ringers cannot marshal this kind of support but some endorsement-challenging candidates can.

I believe the endorsement process, at least within the Democratic Party, would not be the whim of party leaders. I know my peers in the party and they support open, transparent and inclusive processes. I am confident we would offer a process that is open to all Democrats that want to attend but even with recruitment, only 10% of self-identified Democrats will participate.

The root of the problem for liberal candidates is the money needed to run for office. The blanket primary increases the spending needed for a successful campaign and further strengthens the PACs with their large sums of money. What we need is an effective party to elect someone to office without the PAC money. I believe the partisan primary is an important tool to regain grass roots control of elections.