All posts by Ned Foley

NCC’s Guardrails of Democracy Project

On Wednesday, the National Constitution Center is hosting a webinar as part of its Guardrails of Democracy project. The specific topic is “Election 2022: Are We Ready?” David French, Ilya Somin, and I will be participating on behalf of the three teams that NCC created to prepare reports for the Guardrails project.

In addition, Ilya recently hosted a symposium of blog posts at the Volokh Conspiracy on the Guardrails project. Here are links to the symposium pieces:

Lana Ulrich, The National Constitution Center’s “Restoring the Guardrails of Democracy” Initiative

Edward Foley, Three Reforms to Protect Democracy from Election Denialism

Walter Olson, Restoring the Guardrails of Democracy: A Libertarian View

David French, An Upgrade, not a Rebuild

Walter Olsen, Guardrails of Democracy, Extended: Comparing Notes On The Team Libertarian Report

Edward Foley, Three Points of Agreement on Democracy Protection

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Recording of Webinar on Alaska’s Ranked Choice Voting

Now available on the Election Law at Ohio State website. Well worth watching for those unavailable to see it live. Among the many interesting and informative points discussed by the panel was the fact that the candidate who won the election based on Alaska’s new “instant runoff voting” is not the candidate who, based on all the ranked preferences on the ballots cast, would have beaten every other candidate one-on-one—in technical term, the Condorcet Winner.

In this Alaska special election, the Condorcet Winner was Nick Begich, one of the two Republicans on the ranked-choice ballot (the other being Sarah Palin). Mary Peltola, the Democrat, was the instant runoff winner. This divergence is an example of the issue addressed in my previous work on “round-robin voting,” which asks whether other states contemplating the adoption of Ranked Choice Voting should consider the possibility of a Condorcet-compliant version rather than IRV.

I expect that Alaska’s experience with this special election will prompt further examination of this issue, and the webinar is a valuable contribution to that conversation.

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“Webinar | Alaska’s 1st Ranked Choice Voting Election”

Election Law at Ohio State is hosting this webinar, with registration at this link:

Alaska’s First Ranked Choice Voting Election

Monday, September 12
1:30 – 2:30 p.m. (ET)

Alaska’s special election on August 16 to fill the US House seat of the late Rep. Don Young was the first test of the state’s new electoral system adopted by voters in 2020. The new two-round system with its ‘nonpartisan’ Top 4 primary and ranked choice voting general election has captured the attention of election reform advocates and many others. 

Our panel of experts will take stock of what happened in the final round of the special election as well as in the Top 4 primaries taking place on the same day for other key races in Alaska. Beyond the election results, we’ll ask our panelists to share what they’ve observed about how the new electoral system may have changed the behavior of political parties, candidates, and voters in Alaska. And just as we did in our related webinar in April, when we explored the question of how Alaska’s new system might work in other states, we’ll delve into how Alaska’s experiment impacts the broader landscape of electoral reform. 

James Brooks, Alaska-based reporter for the Alaska Beacon

Lisa Manheim, Charles I. Stone Professor of Law, University of Washington School of Law

Michael Parsons, Senior Legal Fellow, FairVote, and Program Affiliate Scholar at NYU School of Law

Benjamin Reilly, Adjunct Senior Fellow, East-West Center (Hawaii), and Professor of Political Science and International Relations, University of Western Australia

My Ohio State colleague Steve Huefner will be moderating the discussion. I’m very much looking forward to it, and my Election Law class this semester will be watching along with me as part of our unit on Ranked Choice Voting and related electoral systems.

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Mitch McConnell and Alaska’s new RCV system

As a follow-up to yesterday’s post about Henry Olsen’s column on the potential effects of Alaska’s new electoral system (and how it can help non-MAGA Republicans like Lisa Murkowski), there’s new reporting on how dissatisfied Senator Mitch McConnell is with some of the GOP nominees that emerged from traditional party primaries in this year’s Senate races. Pennsylvania is mentioned as a specific example, where Trump-endorsed Dr. Oz squeaked out a very narrow victory over David McCormick for the Republican nomination and is now way behind in the polls against John Fetterman, the Democrat. There is even reporting that the National Republican Senatorial Committee is pulling money out of Pennsylvania at the same time that McConnell is forced to pour more money into Ohio to bolster the struggling campaign of Trump-endorsed J.D. Vance, who is facing a much tougher campaign than anticipated against Tim Ryan, the Democrat.

Given this situation, it is worth speculating how McConnell would feel right now–and what GOP campaign spending plans would be–if Pennsylvania and Ohio had used Alaska’s electoral system this year. While the primary would have been different, as Alaska uses a nonpartisan primary in which the top four candidates regardless of party advance to the November general election (and thus campaigning among candidates in that system might have been different from the beginning), we can identify who the top four candidates were in both the Democratic and Republican primaries in each state this year. In Pennsylvania, the top four candidates were: Fetterman (D) 751,521; Oz (R) 419,834; McCormick (R) 418,868; Lamb (D) 336,606. In Ohio, the top four were: Ryan (D) 359,941; Vance (R) 344,736; Mandel (R) 255,854; Dolan (R) 249,239.

Continue reading Mitch McConnell and Alaska’s new RCV system
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Henry Olsen on Alaska’s RCV system

I hope Mitch McConnell and other GOP Senators read Henry Olsen’s new Washington Post column. As regular readers of his columns know, Olsen is no RINO. (See, for example, his GOP-promoting column of August 15.) What’s distinctive and important about Olsen’s latest piece is that he makes the argument that electoral reform along the lines of Alaska’s new RCV system would help McConnell and the GOP become the majority leader and party, respectively, in the Senate. It would do this by avoiding binary choices in November between an MAGA-extreme GOP nominee and a conventional Democrat, where the Democrat is more likely to win; instead, opening up the November competition to a non-extreme Republican (like Alaska’s Lisa Murkowski), along with the Trump-endorsed MAGA candidate and the conventional Democrat, increases the chances of a GOP winner in November. This not only gives McConnell a greater chance of the Senate having non-MAGA Republicans more like him, it also means it more likely that the Senate will have Republican members period, appealing to McConnell’s self- and partisan- interest of becoming Majority Leader again.

Here’s how Olsen puts the point, using Arizona as an example–and although he mentions specifically the state’s gubernatorial race, the point applies to the state’s Senate race as well, where MAGA candidate Blake Masters might lose to Democrat Mark Kelly, but a more moderate Republican, who would be among the top 4 finishers under Alaska’s new system might have a better chance:

The forced choice between extremes in other states is the only reason Trump-backed Republicans such as Arizona gubernatorial candidate Kari Lake have a prayer in the general election. Many Republicans who backed Lake’s erstwhile opponent, Karrin Taylor Robson, will hold their noses and vote for the crude demagogue to avoid electing the Democrat. Robson would still be on the ballot under Alaska’s system — and could have defeated Lake when votes for other GOP candidates or independents, who don’t normally vote in primaries, decide whom they like best.”

Continue reading Henry Olsen on Alaska’s RCV system
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“Revalidating the Electoral Count Act”

Steven Bradbury, who headed OLC during President George W. Bush’s second term and served as General Counsel of the Department of Transportation in the Trump administration, has written on Substack an extensive analysis of constitutional and statutory issues relating to Electoral Count Act reform. Its bottom-line conclusion:

“Happily, there’s biparti­san legis­la­tion cur­rently pend­ing in the Senate that would achieve all of these needed reforms: the Elec­toral Count Reform Act of 2022, co-spon­sored by Sena­tors Susan Col­lins and Joe Man­chin.

Con­gress should move this bill for­ward at the earli­est oppor­tunity so that up­dated elec­toral count pro­ce­dures are in place well in advance of the 2024 Presi­den­tial elec­tion.”

I highly recommend reading the whole essay, which presents the relevant issues thoroughly and accessibly, in a style that is very reader-friendly. (I only wish there were links or citations to some of the sources; in this respect, it’s more like a New Yorker article than a law review essay.) From my own research and analysis of the topic, I think the piece does a particularly good job on these key points:

  1. analyzing the constitutional ambiguity caused by the use of the passive voice in the Twelfth Amendment, and ascribing the most sensible construction of that ambiguity in light of the relevant constitutional history, especially the period between the adoption of the original Constitution and the ratification of the Twelfth Amendment.
  2. explaining why a sound interpretation of the relevant constitutional provision entitles Congress to invoke the Necessary & Proper Clause to enact a statute that clarifies and implements the Twelfth Amendment, consistent with the basic constitutional framework that Article II and the Twelfth Amendment establish (as supplement by subsequent constitutional provisions, including the Fourteenth Amendment);
  3. showing how the 1887 Electoral Count Act fits within that constitutional framework but urgently needs revision because of its now-antiquated and convoluted language, as well as misunderstanding and abuse of its provisions in recent years, most especially by the efforts of Trump and his allies;
  4. and detailing how the proposed Electoral Count Reform Act appropriately revises and updates the 1887 Act, especially to take account of the changing relationship between state and federal court litigation over vote-counting disputes, including Bush v. Gore.

For anyone, especially members of Congress, who might be harboring any lingering doubts on any of these matters, this essay is a very timely and valuable contribution to the topic of ECA reform.

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“A Tale of Two Primary (Systems)”

Echoing Aaron Blake’s analysis in the Washington Post, which I blogged about yesterday, Amy Walter, Jessica Taylor, and Dave Wasserman, all of the Cook Political Report with Amy Walter, jointly highlight the importance of the difference in electoral systems in evaluating the results of this year’s primaries. Although their analysis is behind a paywall, here’s a key snippet:

“For years, advocates for ranked-choice voting and top-two (or four) primary system have argued that these reforms will help to moderate our polarized political system. Instead of having to cater only to one’s base voters, candidates can build cross-party coalitions that appeal to a broader (and more representative) swath of the electorate. Given the results of this primary season, those advocates have a stronger case than ever.”

For the same reasons I mentioned yesterday, this Cook Political Report analysis is further support for the idea that Congress should adopt a majority-winner requirement that would permit states to choose among different versions of majority-winner systems–top 2, or top 4, with or without RCV–while at the same time preventing further use of the polarizing plurality-winner system currently in use in most states. In other words: come on board; there’s plenty of room on the majority-winner bandwagon, and the more who join the better!

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“Round robin” versus “instant runoff”

As Rick Pildes observed a few days ago, Alaska’s at-large House seat may show the significance of using different versions of ranked-choice voting. Now that we have some preliminary returns in both the special election and the first round of the regular election, this point is even more salient. As the New York Times is showing this morning, Sarah Palin is in second place in both the special and regular election: 32% and 31% respectively. Nick Begich is in third place in both: 29% and 27%.

Continue reading “Round robin” versus “instant runoff”
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“What surviving GOP impeachment backers have in common: Alternative primaries”

Aaron Blake for The Washington Post, contemplating Lisa Murkowski’s potential survival against her Trump-backed challenger because of Alaska’s new Top Four with RCV system, observes that the only two House Republicans who voted for Trump’s impeachment to survive did so in a “top two” primary election. From this admittedly “small sample size,” Blake entertains the possibility that these alternative electoral systems–in contrast to the conventional method of partisan primaries followed by a plurality-winner general election–may be a factor in enabling pro-democracy Republicans to withstand Trump’s attack.

Continue reading “What surviving GOP impeachment backers have in common: Alternative primaries”
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ECA reform must comply with the Constitution, as the bipartisan Senate ECRA bill does (but as some proposals to revise it would not)

The bipartisan Electoral Count Reform Act has no “fatal flaw,” as some incorrectly argue. Rather, the Senate bill is well-designed to suit its essential purpose of requiring ballots cast in presidential elections be counted according to the rules established before the ballots a cast—a point emphasized by President Obama’s White House counsel Bob Bauer, and others, at a hearing held last Wednesday.

It’s essential that any reform of the flawed 1887 Electoral Count Act comply with applicable provisions of the federal Constitution.  Yet some commentators seemingly wish for Congress to enact a new law that would exceed congressional power in the context of presidential elections and, in turn, contravene powers that the Constitution explicitly granted to the states whether we like it or not. 

I, too, wish we didn’t elect our presidents using an antiquated Electoral College system better suited for the eighteenth century than the twenty-first, favoring smaller states conceived as separate sovereigns assembled in a federated league rather than one unified continental country that elects its shared chief executive by a national popular vote in which each citizen from shore to shore participates equally. But until we amend the Constitution to jettison the outdated Electoral College, we need to conduct our presidential elections within its framework, and that includes the counting of both the popular and electoral votes that are components of the overall system. 

The fear of some is that state legislatures might enact laws that give themselves a role in counting the ballots that citizens cast to appoint their state’s presidential electors. To some extent, it’s a well-founded fear given what some state legislatures have done, or threatened to do, since Trump’s “Big Lie” claim that the 2020 election was stolen. 

But we need to be clear-eyed about what, consistent with the Constitution, Congress can—and cannot—do to combat this threat. Insofar as it’s suggested that Congress disallow state legislatures from making themselves, or one of their legislative committees, the ultimate authority to canvass and certify the count of the popular votes for president in the state, that’s a constitutional non-starter. Congress clearly lacks that power, no matter how desirable it would be for Congress to have it. (Even if one thought this constitutional issue debatable, amending the bipartisan compromise bill to provoke this debate would surely derail its chances of passage in the Senate.)

Continue reading ECA reform must comply with the Constitution, as the bipartisan Senate ECRA bill does (but as some proposals to revise it would not)
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“Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism”

My article, part of the AALS conference on Rebuilding Democracy and the Rule of Law, is now published. Here’s the abstract:

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that anti-democracy extremism currently poses in America.

Apart from reforming the Electoral Count Act, which I wholeheartedly advocate (as ELB readers know well), a new federal law that adopts this majority winner requirement for congressional elections is the reform that I would have Congress make its top election-related priority. Because it would help the Republican Party (as well as the nation as a whole) protect itself from far-right extremism, it ought to be able to secure 10 GOP votes in the Senate along with all 50 Democrats to overcome any filibuster. And because it lets states choose whichever form of majority winner elections they prefer, it’s the opposite of a one-size-fits-all federal micromanagement of how states run elections.

As the primaries in this year’s midterms have unfolded so far, the danger to democracy of plurality-winner elections has only become clearer. Winning a fractured plurality in a primary, then beating the opposition in a plurality-winner general election, is the way extremist candidates can come to power even though a majority of voters in November would have preferred a non-extreme alternative. If we don’t adopt a reform to counteract this problem, Congress soon may become populated with enough “election denialists” willing and able to repudiate the results of future elections that their party loses. Thus, if one is concerned about the risk of election subversion (as one should be), one ought to advocate for Congress to enact a majority winner requirement as the most direct means to safeguard against this threat. Even a well-reformed Electoral Count Act would be vulnerable to manipulation if election denialists control Congress.

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BPC conversation on ECRA

Last week, the Bipartisan Policy Center hosted a Twitter Space discussion of the new bipartisan Senate proposed Electoral Count Reform Act. Lisa Desjardins of PBS moderated the conversation, and I participated along with Kevin Kosar of AEI and Michael Thorning of BPC. There was Q&A from attendees. I found it a valuable discussion and am pleased to learn that a recording is available (at the above link) for anyone interesting in listening to it.

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“Correcting Misconceptions About the Electoral Count Reform Act”

Bob Bauer and Jack Goldsmith, at Lawfare, have a comprehensive, organized, and point-by-point response to various critiques of the bipartisan Senate ECA reform bill that have emerged since the bill was introduced on Wednesday. Anyone interested in this topic is encouraged to read the entirety of their thorough analysis (which is available to all), and thus I won’t endeavor to excerpt it here. Rather, to set their Lawfare piece in the context of analysis of the ECA reform bill that has appeared on ELB over the last few days, I’ll simply note that the piece itself links to a number of items that, in its own words, it “builds upon,” including the joint ELB blog post of which I was a part, as well as additional analysis from Derek Muller, as well as one of Derek’s relevant law review articles.

Jack’s and Bob’s Lawfare analysis also fully accords with a couple of additional ELB posts I’ve done in the last few days, including one that focuses on the bipartisan bill’s welcome replacement of the “failed election” provision of 3 U.S.C. 2, and another that explains why the obligation of Congress to accept as “conclusive” the appointment of electors that conforms to the rule of law, as enforced (if necessary) in state and federal courts, is the essential core of the bipartisan bill. Indeed, Jack and Bob make it their mission to defend the bill’s “core design” and leave for potential legislative consideration the possibility of some technical adjustments that would even better achieve the fundamental goal of presidential elections based on law (“not via post-election manipulation”) that the bill is already well-tailored to serve.

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“On the Docket: Atlanta v. Trumpworld”

N.Y. Times deep dive into the Georgia criminal investigation includes this on the alternate electors dimension of the probe:

In a legal filing, the electors’ lawyers likened their clients’ actions to those of electors in Hawaii during the 1960 presidential election, when Richard M. Nixon beat John F. Kennedy in the initial voting by a mere 141 votes, but Kennedy prevailed after a court-ordered recount. As this unfolded, Kennedy electors submitted their votes (as did Nixon electors) before the recount was finished. “Appropriately, no one suggested that they were criminals,” Ms. Debrow and Ms. Pierson wrote.

But when Kennedy and Nixon electors cast their votes on Dec. 19, 1960, there was a court-ordered recount still underway, and the Hawaiian governor later directed the winning Kennedy slate to be recognized. By contrast, 60 years later in Georgia, the Trump electors signed their certificate on Dec. 14, a week after the results were recertified. By then, four of the original Georgia Republican electors had bowed out and had to be replaced, with one expressing reservations about “political gamesmanship.”

“In the Hawaiian case, it was the appropriate certifying authority, the governor of the State of Hawaii, who certified the Kennedy electors,” said James A. Gardner, a professor at the University at Buffalo School of Law. “These people we’re talking about in Georgia were not certified by any executive authority,” he said, adding that “in 1960, none of this occurred in the context of a fairly widespread attempt by a sitting president to conduct a self-coup.”

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