Robust Third Parties Requires Electoral Reform

I very much appreciate Tabatha’s follow-up to my earlier post, and I especially appreciate her discussion of the new article Dismantling the Party System: Party Fluidity and the Mechanisms of Nineteenth-Century U.S. Politics by Rachel A. Shelden and Erik B. Alexander, which I found very interesting although not entirely persuasive.

I’m not sure there’s much disagreement between Tabatha and me. As she says, she doesn’t take issue with my basic point. To the extent that there appears to be some difference of opinion, it may be based on different understandings of the key sentence that I quoted from the Washington Post explainer that prompted my initial post. Here, again, is that sentence: “For much of U.S. history, there were more than two major political parties, and that could emerge again.” 

I interpreted this sentence as meaning that for a large portion of U.S. history there was a major third party and perhaps even additional major parties. I based that interpretation in part on the end of the sentence saying what occurred before, but doesn’t exist now, could occur again. Because we currently have minor third and fourth parties, like the Libertarians and the Greens, I assumed that the author of the explainer intended to mean that third (and perhaps more) parties in much of the past were major rather than minor competitors in electoral politics. Given that interpretation of the sentence, my contention was–and remains–that it is inaccurate.

But perhaps it is possible to interpret the relevant sentence as meaning only that for large chunks of American history, more than two parties existed even though these additional parties were not major electoral competitors. This interpretation would require treating the minor parties that exist today as insignificant in a way that minor parties in previous eras, even though minor in comparison to the two major parties, were not insignificant. If interpreted this way, the sentence is not inaccurate. It is indisputable, as Tabatha and the Sheldon-Alexander article describe, that in the nineteenth century minor parties were more of a factor in electoral competition than subsequently.

Even so, it remains true that the plurality-winner rule that has dominated American elections since the Jacksonian era has not permitted third and other minor parties to become major parties unless and until they replace one of the two previously existing major parties. Insofar as the Sheldon-Alexander article takes issue with this point, I think it is mistaken. The article argues that it is wrong to think of a “party system” existing in nineteenth-century America. The article contends, instead, that there was much more fluidity in nineteenth-century political competition than is suggested by the idea of a party system.

I agree that there was much more fluidity in partisan dynamics in the nineteenth century, but I don’t think that truth undermines the basic point that party systems existed as a result of the plurality-winner rule and related election laws and, as a consequence, no more that two major parties were sustainable at any given time.

If this is correct–and remains so as long as the plurality-winner rule stays in place–then we need to ask what possible roles exist for minor parties within the existing system. One possibility is that the presence of minor-party candidates can determine which major-party candidates wins. Whether or not we use the term “spoiler” to describe this role, we must understand that substantively it describes a negation of majority choice: the key point when this occurs is that the other major-party candidate would have received a majority of votes if the election had been limited to solely the two major-party candidates; but with the additional minor-party candidates in the race, a different major-party candidate receives a plurality (but not a majority) of the votes. It is important to appreciate the consequences to collective self-government from letting minor parties play this outcome-determinative role.

In the existing plurality-winner system, minor parties also (at least theoretically) could play the role of a power broker or “kingmaker” by throwing their support behind one of the two major-party candidates. This is the kind of role that is envisioned by advocates of fusion voting. But this kind of role can exist even if laws are not changed to facilitate fusion voting on the government’s ballot. There is currently nothing stopping the formation of third (and more) parties, and for those new parties to tell their members to support their preferred major-party candidate.

Moreover, Tabatha’s call for “relegalizing fusion” (so that minor parties can show their support for major-party candidates directly on the government’s ballot) is a confirmation of my most basic point: that the only way for third (and more) parties to play a truly robust role in American electoral politics is if election laws are changed to facilitate that. To be clear, I too want the enactment of some of those reforms, although I’m dubious that fusion voting alone is enough. Some forms of ranked-choice voting, in my judgment, would do much more to invigorate the possibility of electoral competition from third (and other) parties. Ultimately, I think it is important to be realistic about the role third parties will continue to play without this kind of reform.

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“Republican Party sues over absentee ballots, voter rolls in battleground states”

USA Today reports. The article begins: “The Republican National Committee and its lawyers are going state to state seeking to influence what laws and procedures will govern the November election.” I think it’s only fair to point out, which the article doesn’t do, that this is something that Democrats did in prior election cycles. To be sure, Republicans ask the courts for different election rules than Democrats do, but it’s still going to court to get more favorable laws than what existing procedures provide.

This article is also misleading in other ways. For example, it states: “If the [RNC’s] cases are successful, fewer people will be allowed to vote in November, and fewer absentee ballots will be counted.” This sentence strongly implies that the RNC seeks, and may persuade courts to mandate, wrongful disenfranchisement of eligible voters. But farther down in the piece, the litigation that is described seeks only the enforcement of the NVRA’s list maintenance requirements. The RNC’s NVRA claims may–or may not–have merit. Both Nevada and Michigan vigorously contest the validity of its NVRA claims in their respective states. But if they do have merit, enforcement of the NVRA won’t constitute wrongful disenfranchisement but instead proper enforcement of existing election law. The idea that a successful lawsuit could cause the wrongful denial of the right to vote is inaccurate–and presents the danger of breeding just the kind of distrust in the rule of law that the article says would damage democracy.

Also, although the article and its headline highlight the cases where the RNC is a plaintiff, many of the cases the article discusses are those in which the RNC is or seeks to be a defendant-intervenor. It’s hard to say that those cases qualify as ones in which “[t]he Republican National Committee and its lawyers are going state to state seeking to influence what laws and procedures will govern the November election,” to quote the opening sentence again.

All in all, this piece in my judgment is a very sloppy job of reporting and, rather than educating the public on election law and litigation, does a disservice to readers attempting to understand how the electoral system operates and the prospects that this year’s election will be conducted in a way that voters can be confident that the candidates who are declared the winners are the ones for whom the participating and eligible voters actually cast their ballots for.

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Top New York Election Lawyers Cannot Recall Anyone Ever Prosecuted for the NY Election Law Being Used to Try to Turn Trump’s Hush Money Payments into a Felony

Business Insider confirms what I suspected:

Now, Manhattan prosecutors now say an old, rarely used section of the state election law is their favorite on the menu of potential underlying crimes.

“As the court is aware, falsifying business records in the first degree requires an intent to commit or conceal another crime,” prosecutor Joshua Steinglass told New York State Supreme Court Justice Juan Merchan on Tuesday.

“The primary crime that we have alleged is New York state election law section 17-152,” Steinglass told the judge, lifting into prominence an arcane measure that had previously played only a supporting role in the case.

“There is conspiracy language in the statute,” the prosecutor said, “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016.”

Business Insider asked two veteran New York election-law attorneys — one a Republican, the other a Democrat — about the law, also known as “Conspiracy to promote or prevent election.”

Neither one could recall a single time when it had been prosecuted.

“I’ve never heard of it actually being used, and I’ve practiced election law for 53 years,” Brooklyn attorney and former Democratic NY state Sen. Martin Connor said of section 17-152.

“I would be shocked — really shocked — if you could find anybody who can give you an example where this section was prosecuted,” agreed Joseph T. Burns, attorney for the Erie County Republican Committee in Buffalo, New York…

Falsifying business records requires proof of at least an attempt to commit an underlying crime to be a felony.

But what if that underlying crime is section 17-152 — conspiring to mess with an election through “unlawful means?”

Things will get “twisty,” Connor said, when prosecutors try to show that Trump’s falsified business records are felonies because of an underlying crime — 17-152 — that itself needs proof of a conspiracy to do something “unlawful.”

“You’re having an underlying crime within an underlying crime to get to that felony,” Connor told BI….

Proof of an intent to violate any of these three laws would be sufficient to satisfy Section 17-152. And once you prove 17-152, you have the underlying crime you need to raise misdemeanor falsifying business records to a felony.

It’s important to remember that Trump is only charged with 34 counts of this one crime: felony falsification of business records, said election-law scholar Jerry H. Goldfeder.

Trump is not charged with actually committing any of the underlying state and federal laws required to prove felony falsification.

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So prosecutors have no legal obligation to prove he’s guilty of any of these underlying laws, 17-152 included, said Goldfeder, senior counsel at Cozen O’Connor and author of Goldfeder’s Modern Election Law.

“They only have to prove he intended to commit these underlying crimes,” which is a far lower bar, said Goldfeder, who also directs the Fordham Law School Voting Rights and Democracy Project.

“I think it’s a very viable case,” he told BI.

“And the testimony so far demonstrates that Trump intended to pursue this catch-and-kill scheme and to falsify business records to cover it up — and did so to influence the election,” he said.

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“Trump camp plans sit-down with outside groups after FEC relaxes coordination rules”

POLITICO:

“On Tuesday, the Trump campaign sent a letter to pro-Trump, external organizations asking them to attend an “entirely off-the-record, private,” and “invite-only” meeting with senior campaign officials, according to a copy of the letter obtained by POLITICO. The sit-down, which the letter describes as a “meeting of the political minds,” is aimed at discussing “collaborat[ion]” and “priorities and plans” for the general election. …

“There have long been tight restrictions on how federal campaigns and political committees can coordinate. But a recent Federal Election Commission advisory opinion, dated March 20, relaxed limitations on how they can collaborate on paid door-knocking efforts.

““We will share our macro view of the electorate with you and discuss new opportunities (in light of a recent FEC ruling) for our organizations to collaborate more effectively than we have been able to in the past,” according to the invitation. “We also ask you to come prepared to share any information you legally can about your priorities and plans with us.”

“The letter indicates that Trump campaign officials and outside groups will be treading carefully legally during the meeting. It notes that Republican National Committee chief counsel Charlie Spies and Trump campaign counsel Dave Warrington “will oversee this meeting to ensure legal compliance.”

“Trump officials appear to be placing a premium on the new FEC decision. Last week, Blair spoke before a meeting of the Rockbridge Network, a secretive gathering of conservative donors. During his remarks, Blair alluded to the advisory opinion, which he described as a game-changer, according to two people familiar with the remarks who were granted anonymity to discuss the matter.”

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Virtue and Institutions

A new Common Ground Democracy essay, drawing upon Rick Pildes’s work, to discuss why it’s wrong to rely solely on a hope for increased civic virtue, among either politicians or voters, to protect democracy from authoritarianism. Instead, institutional reforms of the kind that Rick advocates in his recent Dunwody lecture are necessary to restore a Madisonian equilibrium to America’s political system. As the essay explains, a Madisonian equilibrium exists when the system’s institutions are well-calibrated to the society’s political culture, including its degree of civic virtue. The problem in the United States today is that, although a Madisonian equilibrium of this nature exhibited for several decades after World War II (when partisan polarization was low and civic solidarity high), this equilibrium has been destabilized by various cultural forces including the rise of intense partisan polarization. To remedy this problem, we must endeavor both to reinvigorate civic virtue within our political culture and make institutional adjustments suitable for the amount of civic virtue–and, its enemy, partisan tribalism–prevalent in our present political culture. Rick’s lecture prioritizes the institutional reforms that have the greatest change of being most effective in the near term on this front.

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“Cyberattack forces Georgia county to sever connection to state voter registration system”

Disturbing development as reported by CNN:

“Georgia’s Coffee County suffered a cyberattack this month that forced the county to sever its connection to the state’s voter registration system as a precautionary measure, three sources familiar with the matter told CNN.

“Investigators believe the incident was a ransomware attack, in which cybercriminals typically lock computer systems and demand a ransom, the sources said.

“The federal Cybersecurity and Infrastructure Security Agency (CISA) informed the county of the incident on April 15, and federal and county officials are trying to determine who carried out the hack, according to the sources.

“A spokesperson for the office of Georgia’s secretary of state confirmed the cyberattack and the county’s response.

“The voter registration system, known as GARViS, is a relatively new technology that state officials have touted as a way of ensuring millions of Georgian voters are registered accurately. There was no indication that GARViS was infiltrated by the hackers, and Coffee County’s network connection to GARViS was severed as a precautionary move, the sources said.”

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