“Can an independent candidate like RFK Jr. win the presidency?”

There is much that’s accurate in this explainer in The Washington Post. But there is one sentence that jumped out to me as highly inaccurate and misleading: “For much of U.S. history, there were more than two major political parties, and that could emerge again.” That’s just not true. To be sure, third (and fourth, etc.) parties have attempted to compete against the two dominant parties since fairly early in the nineteenth century, and the upstart Republican Party was able to replace the Whigs as the second dominant party before the Civil War. But never has there been a period when three or more “major political parties” have been competitive amongst each other at the same time. The closest the nation came to that was 1912, when Teddy Roosevelt’s Progressive (Bull Moose) party eclipsed the GOP to come in second for the presidency (in both the Electoral College and the national popular vote). But the Progressive Party was not able to sustain itself as a “major” third party. The role of minor parties in the nineteenth century, like the Greenbacks, was much the same as the role of minor parties, like the Greens, today.

The Post’s explainer correctly observes that the “plurality” winner rule that states to award their electoral votes prevents third parties from effectively competing. But the piece fails to discuss the kind of electoral reforms that would enable third parties to compete without simply serving as spoilers for one of the two major parties. Instead, the explainer concludes by saying: “So until there is a popular rejection of the two major parties, or an official divide in one of them, the two-party system dominates.” Instead, a better conclusion would have been something like this: “So unless election laws are changed to adopt procedures that would enable third parties to compete effectively, like various forms of ranked choice voting, the two-party system dominates.”

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“Trump is a co-conspirator in Michigan’s 2020 false electors plot, state investigator says”

Detroit News:

Michigan prosecutors consider former President Donald Trump and some of his top aides co-conspirators in the plot to submit a certificate falsely claiming he won Michigan’s 2020 election, an investigator for Attorney General Dana Nessel’s office testified Wednesday in court.

Howard Shock, a special agent for Nessel, said Trump; Mark Meadows, who was Trump’s chief of staff; and Rudy Giuliani, who was his personal lawyer, are “unindicted co-conspirators” in Michigan’s false elector case. That means prosecutors believe they participated, to some extent, in an alleged scheme to commit forgery by creating a false document asserting Trump had won Michigan’s 16 electoral votes when Democrat Joe Biden had won them.

Shock’s testimony came on the sixth day of preliminary examinations in Ingham County District Court as Nessel’s office pursues felony charges against a group of Republican activists who signed the certificate of votes claiming Trump won….

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“A Distinct System for Presidential Succession on Inauguration Day: Getting the Most Out of Section 3 of the Twentieth Amendment”

Brian Kalt has this important new article, forthcoming in Cardoza Law Review (of which I was fortunate to read an earlier draft). Here’s the abstract:

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not–and should not–be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place.

Significantly, Section 3 gives Congress much more flexibility for inauguration-day double vacancies than Article II allows for middle-of-the-term ones. But Congress has never fully embraced its Section 3 powers: When Congress wrote the current succession law in 1947, it chose a monolithic system that ignored the distinctive needs of inauguration-day succession and left Section 3’s flexibility unused. The time for Congress to make full use of its Section 3 powers is long overdue.

Moreover, Section 3 has been largely neglected by scholars. The time for a full-length published treatment of Section 3 is overdue as well.

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“Trump’s New Legal Bills Are Hiding an $8 Million Mystery”

Daily Beast reports on a financial arrangement that may violate federal campaign finance laws. From my perspective, with all the serious threats facing American democracy, this particular story is not a high priority. (Maybe the media could devote some more attention to how the structures of electoral competition need to be changed, so that extremist candidates are not able to convert partisan primary victories into general election victories when general election voters would prefer a more moderate candidate from the same party.)

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“Biden, Trump will be on November ballot, DeWine says”

A more optimistic note on Ohio’s handling of the Biden ballot mess (h/t Derek Muller):

‘DeWine told 10TV that he doesn’t think anyone should worry.

“We’ve got some technicalities that are going on, but it’s going to get worked out so no one should really have any concern,” DeWine said. “They’re going to have a choice this November. They’re going to be able to pick one of these two to be our president.”’

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