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Analysis: What Georgia and Maine could teach Utah about the Chaffetz special election

FILE - In this May 20, 2017 file photo, U.S. Rep. Jason Chaffetz waves after addressing the Utah GOP Convention in Sandy, Utah. Chaffetz, a five-term Republican, says he doesn't feel compelled to talk about what he may do after leaving Congress next month
FILE - In this May 20, 2017 file photo, U.S. Rep. Jason Chaffetz waves after addressing the Utah GOP Convention in Sandy, Utah. Chaffetz, a five-term Republican, says he doesn't feel compelled to talk about what he may do after leaving Congress next month. But he told The Associated Press on Tuesday, May 23, 2017, that the business "” Strawberry C"” may become a reincarnation of his former public relations and marketing firm. (AP Photo/Rick Bowmer, File)
Rick Bowmer, AP

Georgia's 6th special congressional election ended up being an easy GOP win Tuesday night, but not before both parties combined to spend $55 million battling for the seat, the most expensive House race in history.

The previous record was just over $29 million, set in 2012 in Florida.

Explanations for the fierce battle in Atlanta's suburbs for a long-held GOP seat once occupied by Newt Gingrich include Trump fatigue in a district where the president underperformed. But some observers also pointed to a divided Republican base whose leading candidate only got 20 percent of the vote in the fractured special election primary in April. The rest of the GOP vote split among 10 other candidates in that open primary.

Utah's Republican Party moved to limit the risk of a fractured primary in the race to replace retiring Rep. Jason Chaffetz. Delegates at the GOP convention in Sandy in May had voted to change longstanding convention rules, sending just one candidate to the primary, rather than the usual two.

On Saturday, delegates met again and pushed former House Rep. Chris Herrod to face Provo Mayor John Curtis and local attorney Tanner Ainge, who both already qualified for the primary using the new signature gathering process to get on the primary ballot.

The rule change could have significant consequences, according to Jason Perry, director of the University of Utah's Hinckley Institute of Politics. Had the convention also sent the second-place finisher, state Sen. Deidre Henderson, R-Spanish Fork, Perry suggests, she may have split the moderate vote with John Curtis, which might have allowed much more conservative Herrod to win the primary.

"Any time you have multiple candidates," Perry said, "the two who are most closely connected tend to take votes from each other, and that can easily propel a third and very different candidate to victory."

The rule change was not designed to help Curtis. Quite the reverse. It was intended to focus primary support for the convention's choice rather than divide it by choosing two. If Perry is right and Curtis benefits, it will be a case of unintended consequences.

The rule change at the convention was a result of a 2014 change to Utah's election law, SB54, which opened up broader candidate access to the primary ballot, said new state party chairman Rob Anderson.

"There was a lot of arguing on the floor at the convention when the bylaw was passed," Anderson said, "and the Legislature also wrestled with the plurality problem earlier this year, but was unable to reach a consensus."

The spoiler effect is on a lot of people's minds at the moment. The 2016 Green Party candidate, Jill Stein, told Politico this week that she had no regrets about taking votes from Hillary Clinton in Michigan, Wisconsin and Pennsylvania.

"In Michigan," Politico notes, "Stein garnered more than 51,000 votes, while Clinton lost by fewer than 11,000. In Wisconsin, Trump’s margin was 23,000 votes while Stein attracted 31,000. And in Pennsylvania she attracted 50,000 votes, while Trump won by 44,000."

Trump is not the first president to win in such circumstances. Bill Clinton won in 1992 with 43 percent of the vote, as maverick Ross Perot took 19 percent. And George W. Bush won in 2000 by squeaking through in Florida using narrow headroom carved out by Green Party candidate Ralph Nader. Nader took over 97,000 votes in a Florida election that Democrat Al Gore lost by 537.

Testing the system

SB54 was signed into law in 2014, but the race to replace Chaffetz is the first major test of the new system, with no incumbent and three candidates in an open primary field. Previously, the state party conventions nominated candidates, sending the two with the most convention votes to a primary if neither got 60 percent of delegates at the convention.

But Perry emphasizes that he does not see an election where the winner gets less than a majority as illegitimate. "That's the nature of the system," he said.

Utah's new election law was designed to change the system, so assessing its effects will be fair game in the coming years, Perry said. "If you change the way they get there, that does change the process dramatically," Perry said, "and in many cases (it) could change the winner."

Signed into law in 2014, SB54 was generally understood to be a reaction to the 2010 election, when incumbent GOP Sen. Bob Bennett failed to get on the general election ballot after coming in third at the state party convention.

The result was a Senate primary between challengers Tim Bridgewater and Mike Lee, leaving the sitting senator on the sideline. This led many to argue that the convention system favored candidates who appealed to a self-selected niche of voters who attended caucuses and chose delegates.

Opponents of SB54 included the Utah Republican Party, which challenged the government's right to dictate the party's nomination process. Proponents argued that using petitions with voter signatures to allow more candidates onto the primary ballot would enhance legitimacy and turnout, while also appealing to a different type of voter than those engaged in party caucuses and conventions.

"The American electorate has historically been willing to accept candidates who win by plurality," Perry said. He notes that in 1988 and in 1992, Utah Govs. Norm Bangerter and Mike Leavitt were elected with less than majorities.

One thing to watch, Perry said, is whether the barrier to entry of Utah's signature option for ballot entry is high enough avoid ballot clutter. In the race to replace Chaffetz, the requirement had some influence, as only two of the four candidates who set out to qualify made the cut. "We'll have to see after this election whether that barrier was high enough," Perry said.

Much will also hinge on how strong a race Ainge can run. The political neophyte is primarily known as the son of BYU and Boston Celtics basketball legend Danny Ainge. If Ainge draws a strong following of 10 points or more, a three-way split with a close race at the top could pull the winner into the low 40s or lower.

There is precedent for the possibility of an even split among the top two vote getters. In the 2010 Maine governor's general election, the new governor, a Republican, was elected with just 36 percent of the vote, edging out the Democrat at 35 percent, with an independent challenger taking 28, an outcome that helped spur Maine voters to change their election system.

Alternate models

If Utah does end up revisiting its election laws to adjust the signature requirement, it might gain inspiration for further changes from Maine and Georgia.

Ironically, Georgia is one of the few states that would normally not field a candidate who attained less than majority support from his or her party. Under normal circumstances, Georgia law requires both party primaries and general elections to be won by majority vote.

"There's normally a primary and a primary runoff, if necessary, and a general election and a general election runoff," said Trey Hood, a professor of political science at the University of Georgia." Only in special elections, like the one this year, does the state use the "jungle primary," in which 18 candidates from all parties were on the ballot, leaving the GOP field fractured.

The parallel between Georgia and Utah may not be obvious at first blush, but Hood points out that Georgia’s runoff rule stems from the post-Civil War century when only Democrats were elected in Georgia, and the primary effectively determined the election. Georgia then, like Utah now, was effectively a one-party state.

“The primary runoff rule was designed to prevent a fringe candidate from winning in a crowded primary,” Hood said.

The downside of the runoff, Hood notes, is that fewer voters typically show up for the second election, both from election fatigue and often because their first choice is no longer on the ballot.

In Maine, the state is trying to get around this problem with an automatic runoff, also known as a “ranked choice” primary. Under the law passed by voters in 2014, instead of selecting just one candidate, voters are allowed to rank candidates in order of preference, and the system then drops the lowest candidate and repeats the count, shifting losing ballots to the voters' next choice, until a majority is won.

Utah and other states have long used a similar process to select candidates at state conventions, but there the process is even more rigorous. Conventions use rounds of voting, with the lowest candidate eliminated in each round and delegates returning to vote again on the remaining field. Maine's "ranked choice" approach approximates this process, but in a single vote.

Ranked choice voting has been used in several cities, including San Francisco and Portland, Maine. Supporters argue that it empowers voters by allowing them to express their true choices, while also heightening civility because candidates are vying for second-choice ballots. Detractors argue that it tends to confuse and discourage less-educated voters.

Maine has a long history of strong third-party candidates, which sometimes leads to strange results, such as the 2010 race for governor where the winner took just 36 percent of the vote.

Maine’s law faces a court challenge, based on the language of the state’s constitution, said Kyle Bailey, who served as manager for Maine’s Yes on 5 campaign, which drove the push for ranked choice and is helping defend it in court. That legal challenge, Bailey said, only applies to state-level races in general elections, and the law will still be implemented for primaries and federal House and Senate general elections.

“In what aspect of life do we accept only one choice?” Bailey asks. “If I go into an ice cream shop and they are out of chocolate, I’m not forced to accept vanilla.”