Nate Persily is one of our nation’s leading election law scholars (and a friend), with whom I usually agree on many specific matters in our field, but he is quoted today in the N.Y. Times (in an article today by Michael Wines) making a point with which I strongly disagree. The issue being discussed is whether a move from partisan to nonpartisan primaries, of the type used by California in its top-2 system or Alaska in its top-4 system, would significantly help curb the disproportionate strength of MAGA extremists within the Republican Party, leading to the election of more moderate Republicans whose views align more closely with the median voter in the relevant electorate.

Here’s the relevant passage of the article:

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”

I believe that Nate’s characterization of the potential significance of primary election reform is much more pessimistic than is warranted. Instead, I associate myself with Rick Pildes who in his important Dunwody lecture identified the adoption of nonpartisan primaries as the number one reform priority in order to reduce the distorted power of partisan extremists within government. The same priority is expressed in Nick Troiano’s book, The Primary Solution.

There is substantial evidence that partisan primaries (combined with “sore loser” laws, which prohibit candidates who lose partisan primaries from running as independents in the general election) cause voters in November to make a choice between an extreme MAGA Republican and a Democrat, when the median voter in November would prefer a non-extreme Republican over either of these two alternatives. When forced to choose between the extreme MAGA Republican and the Democrats, voters in red-leaning states and districts elect the extreme MAGA Republican rather than the Democrat. This causes voters to send to Congress more “insurrectionists” when the median voters in these congressional districts (and states) would prefer to elect a non-insurrectionist Republican. Replacing partisan primaries with nonpartisan primaries would be a significant step, contrary to Nate’s quote, in removing this distorting dynamic that causes Congress to be populated with many more insurrectionists than the voters actually want.

I have written extensively on this point, in both law review articles and public commentary, and I won’t repeat (or even cite) those writings here. I will offer two simple illustrations of the basic truth. Arizona’s second congressional district is represented by Eli Crane, a MAGA election denialist who was one of the eight extremists who brought Kevin McCarthy down. The only reason why Crane won his seat is because he defeated a more moderate Republican in the partisan GOP primary, and then went on to win the general election in his red-leaning district. There’s no doubt that Crane’s GOP primary opponent would have been preferred over him by his district’s median voter. (In other words, Crane’s primary opponent would have won the general election by an even greater margin than Crane did.) Indeed, at a recent symposium on primary elections research sponsored by Unite America and the National Institute for Civic Discourse, I saw a presentation of empirical analysis conducted by Georgetown University scholars that confirmed this truth.

A second example is J.D. Vance’s victory over Matt Dolan in the 2022 GOP primary for Ohio’s U.S. Senate seat, after Rob Portman declined to run for reelection. Vance is the ultimate insurrection-supporting politician, saying that if he had been Vice President on January 6 he would not have acted as Pence did, whose election to the Senate is a consequence of the distorting effect of partisan primaries. Ohio’s general election voters in November would have much preferred a non-MAGA alternative to J.D. Vance, like Dolan or Portman, but the institutional effect of partisan primaries prevented them from having that option, causing Congress to be more populated by insurrectionists that it otherwise would be based on the true preferences of the median voter of each state and district.

Thus, my view on this key point is exactly the opposite of Nate’s: I agree with him that it is a “hair-on-fire moment” because of the threat of “insurrectionists” and the “dysfunctional” nature of existing institutions under current conditions, but it is precisely because we are in a “hair-on-fire moment” that I think institutional reform to eliminate partisan primaries is such a high priority. To be clear, since January 6, I have repeatedly stated that I thought the two highest electoral reform priorities were (1) revising the Electoral Count Act of 1887, and (2) a requirement that members of Congress be elected by a majority, rather than a plurality, of votes–a reform that would functionally necessitate the kind of nonpartisan primary that both California and Alaska use. Thankfully, we accomplished the first reform before this year’s presidential election. Regrettably, we did not accomplish the second.

A further point of clarity: those familiar with my work in this area know that while I believe nonpartisan primaries are necessary part of the institutional reform to combat extremism, I also believe that in many circumstances nonpartisan primaries alone will not be sufficient and must be coupled with Convergence Voting (in technical terms, Condorcet-based electoral procedures). Depending on the degree of polarization within an electorate, candidates closest to the electorate’s median voter–like Dolan or Portman in Ohio–cannot win even if there is a nonpartisan primary, unless there is also a voting procedure geared to electing the candidate closest to the median voter, as Convergence Voting is. (For those interested in learning more about Convergence Voting and how it differs from the “instant runoff” form of Ranked Choice Voting, tomorrow’s webinar on this subject is very timely.) But to say that Convergence Voting must be part of the prescription to combat the ill of unrepresentative insurrectionism (along with nonpartisan primaries) is no reason to deny–as Nate apparently does–that the use of nonpartisan primaries is effective medicine. Instead, it just needs to be administered as part of an overall treatment plan.

This is why the Arizona reform effort, which the New York Times article describes, is so important (as I’ve written previously). If adopted, it will complete the first essential step of eliminating partisan primaries in that hyper-polarized state–where extremist Crane was able to win his congressional seat, despite his district’s voters preferring the more moderate Republican he beat in the primary–and leave open the next step of adopting Convergence Voting as the way to assure that insurrectionists disfavored by a majority of voters do not prevail.

Finally, it is worth noting (as the Times article does) that the extreme MAGA wing of the Republican Party is doing its best to hold on to partisan primaries. This is because the extremists instinctively know that they need the distorting effect of partisan primaries in order to be able win office. They don’t want any reform that will let voters have their true preference of non-extreme Republicans. Their behavior is additional reason to believe Nate incorrect on this crucial issue.