Danielle Allen-Backed Top-Two Primary Proposal Clears Legal Challenge for Mass. Ballot

Harvard professor Danielle S. Allen’s push to replace Massachusetts’s partisan primaries with a top-two primary system is one step closer to the November ballot, after the state’s highest court rejected a legal challenge to the proposal last week.

The measure — backed by the Coalition for Healthy Democracy, where Allen serves as convening chair — would implement an all-party primary system in which candidates appear on the same ballot regardless of their party affiliation. The two vote-getters would advance to a general election.

Massachusetts Attorney General Andrea J. Campbell certified the measure last year. Because the legislature did not pass the proposal, organizers must submit a second round of signatures by July 1 for the measure to qualify for the ballot. Allen said organizers have already gathered enough signatures and planned to submit them for validation.

Allen said in a Sunday interview with The Crimson that Massachusetts has a “competitiveness crisis,” pointing to data that half of elections in the state over the last decade have been uncontested.

“The point of the ballot initiative is to jump start competition in the state, make sure no voter’s vote was taken for granted, and put power back in the hands of voters,” said Allen.

The initiative is not the first time in recent years that voters have considered reforms to the state’s elections. In 2020, Massachusetts voters rejected a ballot initiative that would have implemented ranked choice voting — a system in which voters rank candidates by preference — with roughly 45 percent voting in favor.

In 2023, the Attorney General’s Office rejected a proposal that would have paired ranked choice voting with a top-five nonpartisan primary, arguing that it was “substantially similar” to the 2020 measure and lacked a “common purpose or unified public policy.”

Harvard Law School lecturer Peter Brann, a former Maine state solicitor, said ranked choice voting is better able to show how much support each candidate actually has. Maine has used ranked choice voting in major elections since 2018.

“It gets you a situation where people are able to vote for the candidates that they want,” he said.

“It’s better gaged, in my opinion, to being able to figure out who are the candidates that have the largest base of support within that election — whether it’s a primary election or the general election,” Brann added.

Many local elections in Massachusetts are already nonpartisan, and preliminary elections for single-seat offices — including Boston mayoral elections — narrow the field to the top two vote-getters before the general election.

Allen, who also serves as board chair of FairVote — a nonpartisan organization focused on advancing ranked choice voting — said that although ranked choice voting remains a priority, the coalition needed to move one step at a time.

“Ranked choice voting is compatible with the all-party primary and can be layered on top of it,” Allen said. “What you can’t do in Massachusetts is take two steps at once.”

“There has to be a lot more socialization still before Massachusetts at the state level to be ready to vote for ranked choice voting,” she added. “Polling is quite clear — state’s not there yet.”

Two members of the state’s Democratic Party governing body sued over the ballot question’s constitutionality in March, arguing it “substantially burdens the right to vote.”

But the Supreme Judicial Court pushed back, ruling that the proposal does not “significantly interfere” with the constitutional right to vote or the related right to seek elected office.

Harvard Law School professor Nicholas O. Stephanopoulos, who advises the school’s Election Law Clinic and researches the American electoral system, said that although the policy could be“depolarizing” compared to traditional primaries, it can also split one party’s vote.

“You can sometimes get the primary vote fragmenting, and so in the worst case, even if it’s a heavily Democratic district, you could get two Republicans advancing if the Democratic vote splinters among three or four or five candidates,” he said, citing cases from California and Washington.

Ahead of California’s gubernatorial primary earlier this month, polling raised the possibility that two Republicans could advance to the general election because of nine major Democratic candidates splitting the vote, despite Democrats’ overwhelming registration advantage in the state. Democrat Xavier Becerra, a former Biden administration official, and Republican political commentator Steve Hilton ultimately advanced.

But Allen said that such outcomes are extremely rare, occurring only twice in more than 2,000 elections.

“Our ballot initiative also has improvements that make it different from the California initiative,” she said. “Those include endorsements, get printed on the ballot, so it’s an information-rich ballot, in contrast to the California ballot, and there’s a write-in provision in the general election.

Stephanopoulos said top-two primaries can incentivize competition from moderate-leaning candidates against incumbents who would typically be favored in traditional primary systems.

“The key is that you can finish second in the primary, and then make it to the general, and then the general electorate is much bigger and has Republicans and independents,” he said. “So then a challenger who would have no hope of winning a Democratic primary may well have a hope of winning a general election in which independents and Republicans are participating.”

If the measure qualifies, voters would consider it in November alongside a firearms-law referendum already certified for the ballot and seven other statewide proposals still pending final certification.

—Staff writer Uy B. Pham can be reached at [email protected] or on Signal at ubp.88. Follow him on X @uybpham.

—Staff writer Alexa M. Schmitt can be reached at [email protected] or Signal at alexaschmitt.15. Follow her on X ​​@alexa_m15_s.