Ned Foley has posted this draft on SSRN (forthcoming, Fordham Law Review). Here is the abstract:
For presidential elections, America needs a new National Primary, to be held in June. It would be an intermediate stage between, first, the state-based partisan primaries that start in January of a presidential election year and then, finally, the November general election. Any political party or independent candidate could qualify for the National Primary ballot by using a new internet-based system to gather electronic signatures from five percent of the national electorate. In this way, the National Primary would enable third-party and independent candidates to have a genuine chance to compete against the two major-party candidates without the risk of becoming spoilers, a risk that occurs now if they attract significant support in the November general election.
The National Primary would send two finalists on to the November ballot. The simplest and most familiar rule for this purpose would be to permit each voter to vote for one candidate on the National Primary ballot, and have the two candidates with the most votes move on to November. That rule, although significantly preferable to the current system because of its ability to avoid the spoiler problem, does not take advantage of alternatives that could be adopted at the same time as implementing the National Primary. One promising alternative would be to use an “OK” ballot, with which each voter could cast an “OK” vote for any of the candidates on the National Primary ballot whom the voter deems acceptable. The two candidates with the most “OK” votes would advance. A form of so-called Approval Voting, this “OK” ballot would enable a candidate who is the second choice of most voters, although not the first choice of most, to make it to the November election matchup. Similarly, if the National Primary in June had three candidates, with many voters viewing one of them especially unfavorably, these voters could use their “OK” votes to cast in effect a negative vote against the objectionable candidate. (They would do so by casting an “OK” vote for each of the other two candidates on the National Primary ballot.)
While history shows that this kind of National Primary would have been advantageous for the many past presidential elections that involved significant third-party or independent candidates, it would have been particularly advantageous in 2016, a year in which both major-party candidates were viewed unfavorably at unprecedented levels. The existing system made it exceedingly difficult to give the American electorate a realistic alternative to the two major-party nominees. Had this National Primary been in place, by contrast, it would have been easy for an independent or third-party candidate to come forward as a less unfavorable option.