The first in a series of Common Ground Democracy essays on the philosophy of democracy and its implications. This one considers the concept of majority voting on the assumption that voters and candidates can be located along a single blue-purple-red partisan spectrum. The next will start to tackle the concept of majority voting without that assumption.

The recording of this webinar, sponsored by the Election Law at Ohio State program, is now available. I found it to be a very valuable program, with great presentations from Beth Hladick, Deb Otis, and Iris Samuels, on all the relevant reform-related initiatives on the ballot this year. Kudos to Tony Gaughan for putting this program together!

The Election Law at Ohio State program is hosting a webinar on the multiple efforts around the country this year to reform the structure of elections (including the effort in Alaska to repeal that state’s previous reform). Date & Time: Sep 17, 2024 02:00 PM Eastern.

To register for the webinar, click this link.

The webinar will include:

1. A preview of electoral reforms on the ballot across the nation in November.
2. A review and analysis of the jurisdictions that have already adopted ranked-choice voting, open primaries, or other systemic reforms.
3. A discussion of voter perceptions and changing views of electoral reforms.
4. An exploration of the interplay between nonpartisan primaries and ranked-choice voting.
5. A history of first-past-the-post electoral systems and partisan primaries.
6. On-the-ground reports from Alaska and Arizona, two of the leading battlegrounds in the debate over election system reform.

The panel will offer valuable insights into these issues, providing a 360-degree perspective on electoral reform across the country. Don’t miss this opportunity to engage in a robust discussion of current and future possibilities for election systems in the United States.

Panelists:

Edward Foley, Ebersold Chair in Constitutional Law at The Ohio State University Moritz College of Law, where he directs the Election Law Program.

Beth Hladick, Director of Research & Outreach at Unite America.

Deb Otis, Director of Research and Policy at FairVote.

Iris Samuels, Reporter for the Anchorage Daily News.

Pat DeConcini, Make Elections Fair Arizona.

Moderator:

Tony Gaughan, visiting professor of law at The Ohio State University Moritz College of Law.

Dave Roos detailed them at History.com.

A new Common Ground Democracy essay.

“What Institutional Reform Would Most Depolarize Politics?”

A new Common Ground Democracy essay examines, with sympathetic skepticism, the growing interest among scholars in fusion voting, as evidenced by the recent open letter advocating it. The essay explains why, given the stated goals in favor of fusion voting–counteracting polarization and providing a basis for the “politically homeless middle” to express their electoral preferences–Convergence (Condorcet) Voting would be a much more effective way to achieve these goals. Indeed, using the example of this year’s presidential election, the essay shows how Convergence Voting could operate as a form of “super-fusion” to enable an alliance between Democrats and a new centrist party to prevent the election of authoritarian-leaning Republicans like the Trump-Vance ticket (whereas fusion voting of the kind advocated in the open letter would not similarly avoid the election of the Trump-Vance ticket, given the same set of electoral preferences among all voters). If states are to be encouraged to experiment with different potential electoral reforms in an effort to achieve the goals underlying advocacy of fusion voting, shouldn’t states be encouraged especially to experiment with Convergence Voting as a super-fusion electoral method?

The New Yorker writer Susan Glasser, a journalist whom I greatly admire (and read regularly), in her most recent column uses the word “coup” to describe the current effort within the Democratic Party to persuade Joe Biden to step aside and let the party choose another nominee: “The coup against Joe Biden, should it succeed, would represent something as unprecedented in its own way as the fact that the Republican Party has now formally ratified the decision to stake its future on a deeply unpopular, rapidly aging demagogue who was repudiated by voters only four years ago.” The column also uses the word “coup” in its subtitle: “As the Republican Convention anoints the ex-President, the Democratic panic over Joe Biden begins to look like a coup.“

Even accounting for some metaphorical leeway as part of a writer’s creativity (so-called “poetic license”), to characterize what’s going on right now within the Democratic Party as a “coup” is deeply misleading and disserves the public. It suggests that this internal debate within the party is somehow improper, illegitimate and undemocratic (small-d). Indeed, that’s why Chris LaCivita, Trump’s senior campaign adviser, has used the same word “coup” to describe what’s happening among the Democrats.

Whether or not one thinks Democrats should substitute another candidate for Biden as their nominee, that is a matter for the Democratic Party to decide pursuant to its rules, and there is nothing improper, illegitimate or undemocratic (small-d) for members of the party to deliberate among themselves as to the best course for their party to take in light of developing conditions.

To be sure, Biden is the presumptive nominee based on the results of the party’s presidential primaries, and unless he withdraws from the race the delegates to the party’s nominating convention who are “pledged” to his candidacy–according to the party’s rules–“shall in all good conscience reflect the sentiments of [the voters] who elected them.” But if Biden ultimately decides to withdraw based on all the input he’s been receiving from members of his own party, both leaders and grassroots, then there is no “coup” at all. Instead, the party would be deciding for itself what’s best in the circumstances.

In fact, even if Biden refuses to withdraw and an effort is mounted to challenge his continued candidacy based on the proposition that his “pledged” delegates should no longer vote for him “in all good conscience” because of what’s changed since the primaries (including his disastrous debate performance), that effort would not be a “coup” attempt. Although, as a practical matter, I think such an effort would be most likely to fail, it would not be in any way improper, illegitimate, or undemocratic (small-d) under the party’s rules. Rather, it would be following those very rules to hash out a significant disagreement among the party’s members about what the party should do.

A coup, by contrast, is the seizure of power contrary to established rules–the opposite of what Democrats in good faith disagreement would be doing as part of the party’s internal self-governance. The term “coup” therefore is much more appropriate to apply to what Trump attempted in his effort to seize a second term despite losing the 2020 election. In my own writing about the 2020 election, I have often been hesitant to use the term “coup” to describe what Trump did (although I have done so occasionally) based on a belief that using the term tends to cause an emotional response that can cloud analytic reasoning over what actually happened. Nonetheless, insofar as Trump fought to repudiate the outcome of the 2020 election in order to cling to power using improper, illegitimate, and undemocratic (small-d) means–like attempting to pressure Pence into rejecting the valid electoral votes from the states–it is not wrong to use the term “coup” to describe what Trump attempted.

It is wrong, however, to use the same term to describe the current contestation within the Democratic Party. It is a false equivalence to write, as Susan Glasser did, that the attempted “coup against Joe Biden” would be anything like what Trump did in response to being “repudiated by voters” in 2020. Even if it’s a false equivalence that the Trump campaign already has seized upon, journalists should not make the same mistake.

ELB readers might be interested in this Lawfare analysis. Its subheading: “Chief Justice Roberts gives neither Trump nor any future president a green light to tyranny, as some initial reactions to his opinion fear.”

Its opening paragraph:

The Supreme Court’s decision on presidential immunity, Trump v. United States, is not nearly as dire as many commentators have exclaimed. I wouldn’t have written the opinion that Chief Justice John Roberts did. But it does not make the president a king, and it does not give the president a license to act lawlessly.

… the Democratic Party’s rules for what would happen if and when President Biden steps aside, on the latest episode of POLITICO Playbook’s Deep Dive podcast. (I assume ELB readers know of her expertise on this topic.) The discussion is useful especially for explaining that, if Democrats go forward with the planned virtual roll call before the convention, the convention delegates still would have the power to change the party’s nominee at the convention itself. (From what I have observed of media coverage of this topic, there’s been some confusion on this point.)

The discussion also helpfully reminded listeners of what happened in 1972, when the Democratic Party’s vice presidential nominee dropped out after the party’s convention, and the Democratic National Committee chose a new nominee, Sargent Shriver. As a matter of party governance, this post-convention power still exists. What’s different between 1972 and now is the timing of the party’s convention this year (very late in August) and state law deadlines for printing ballots with the nominee’s name (earlier, because of changing rules and practices concerning absentee voting). Still, if a party’s nominee changes after the ballots are printed, and the party’s ticket still wins the popular vote in a state, the party’s electors remains the same, and presumably the party’s electors vote for the party’s new nominee regardless of who is named as the party’s nominee on the ballot. I haven’t research how Chiafalo would apply in this situation, but if a state law mandated that a party’s electors voted for someone who was no longer the party’s nominee, just because that person was named as the party’s nominee on the ballot (before the party made its change), I would think that would raise a serious constitutional question.

Chiafalo itself, in footnote 8 of the Court’s opinion, flagged the possibility that the text of a state’s law might seemingly force the state’s electors to vote for person who died after winning a party’s nomination. The Court expressed hope that states would avoid any such situation. One would think that the same situation would apply if a person was no longer the party’s nominee for some other reason than death. For example, suppose in a revised version of the Eagleton-Shriver situation, Eagleton dropped out of the race after a state’s ballots were printed, but the DNC had replaced Eagleton with Shriver as the party’s vice presidential nominee–and had done so before the popular vote in November to appoint the state’s electors. Suppose, further, that the McGovern-Shriver ticket won the popular vote in a state even though the ballots in the state had McGovern-Eagleton listed as the party’s ticket. (I know that McGovern only won one state, plus DC, in 1972, but stick with the hypo for purposes of considering the relevant legal issue.) Imagine that the state’s law, as written, appeared to require the state’s electors to vote for Eagleton, rather than Shriver, for vice president, even though Eagleton had dropped out as the party’s vice presidential nominee and the party had replaced him with Shriver before the popular vote in November. Given the Court’s footnote 8 in Chiafalo, the canon of constitutional avoidance would lead to considering whether the state statute could be construed as requiring the state’s electors to cast their votes for the party’s new nominee, rather than the person named on the ballot who was no longer the party’s nominee. If the statute could not be construed to yield this result, it might well be deemed unconstitutional by the Court as preventing the state’s electors from voting for the party’s nominee.

This post is a revised version of a nonpublic email I sent yesterday. Several who received the email responded by saying that Lincoln example discussed in the email is useful. Therefore, I’m sharing it here.

Yesterday the Washington Post ran a story under the somewhat misleading headline: Supreme Court’s Trump immunity ruling poses risk for democracy, experts say. The headline is misleading insofar as one of the leading “experts” quoted in the piece, Derek Muller, expressed the opposite view.

For what it’s worth, I largely agree with Derek’s analysis as quoted in the article. I also differ with David Becker, quoted in the same article, when he says : “If a future president sitting in the Oval Office were to want to commit crimes, up to and including subverting an election or remaining in power against the will of the American people, this opinion, in my mind, could provide a road map for that.”

I don’t think the Court’s opinion necessarily greenlights a first-term president’s efforts to gain a second term by unlawful means. I won’t consider here all the possible scenarios one could contemplate, but it suffices to say that the Court’s analysis, based on Justice Robert Jackson’s concurrence in the Steel Seizure Case, would require careful consideration of the facts before concluding either that a president was absolutely immune for any particular action or presumptively immune and if the later whether that presumption could be overcome in the specific circumstances.

If one wants to ponder a difficult case on whether or not a president should be immune from criminal prosecution for attempting to subvert an election—and essentially engaging in a coup d’etat—I suggest considering the plan that President Lincoln had in place if the Speaker of the House election after the 1862 midterms had not gone his way. As I was very surprised to learn during my research for Ballot Battles, and as I recounted in that book (page 112 of the second edition), Lincoln was prepared to send the military onto the floor of the House to make sure his party’s candidate for Speaker was elected rather than the Democrats’ candidate. It was crucial to Lincoln that Republicans keep control of the House after the 1862 midterms; otherwise, funding for the Union’s prosecution of the Civil War against the Confederacy (which was not going well at that point) would have dried up, and “Peace Democrats” would have been able to force a settlement with the South without a Union victory. Fortunately, the Speakership election went in Lincoln’s favor, and he was never required to rely on his plan to use his Commander-in-Chief power to order the military to make his will prevail in the House chamber. 

But what if he had? And what if Lincoln had lost the 1864 election to McClellan and, not assassinated by Booth, had been criminally prosecuted by McClellan’s DOJ for improperly using the military to interfere with the House’s election of its own Speaker? In that scenario, should Lincoln have any immunity, absolute or presumptive? Lincoln would have characterized his use of troops in that context as an official act necessitated by the Civil War. I’d be inclined to say that Lincoln would not have absolute immunity in that context because, per Justice Jackson in Youngstown, Lincoln’s military powers are shared with Congress. But I think it’s fair to consider that Lincoln should be presumptively immune from criminal liability for making his best judgment as president as to how to exercise his commander-in-chief powers in the context of the Civil War. As horrified as I was to learn about Lincoln’s willingness to consider using the military to interfere with the House’s own election of its Speaker—an act if Lincoln had undertaken it would have been a form of coup d’etat in my view—I’m reluctant to think that Lincoln should have been subject to criminal prosecution for that exercise of presidential (mis)judgment. 

All of which brings me back to the main point: we need to figure out a way to make impeachment—and, most essentially, conviction by the Senate—a meaningful constraint on the abuse of presidential power. I’m not at all troubled by the idea that Lincoln might have been impeached and convicted for committing, or attempting, a coup d’etat, against the House’s choice of its own Speaker. Impeachment, removal from office, and disqualification from future office are appropriate responses to egregious misuses of presidential power, whereas incarceration upon criminal conviction is much, much more troublesome in my view. 

The remedy for David Becker’s feared scenario of a future president seeking reelection by subverting the valid election of his opponent (and being successful in this subversion, whereas Trump failed in 2020) is to figure out a way to make the impeachment process meaningful. As I wrote in my essay Presidential Immunity and Partisan Primaries, the way forward in this regard is eliminating partisan primaries and the perverse incentives they create for incumbent Senators.

I wrote the following originally as a nonpublic email but subsequently have been asked to make it publicly available. I do so in the spirit that deliberation among scholars about a new Supreme Court opinion as important as the presidential immunity case will lead to better collective enlightenment on the topic, and thus these preliminary views are necessarily tentative and subject to revision upon further reflection, dialogue, and deliberation.

On Rick’s concern about a president poisoning the Attorney General (or the Seal Team Six hypo, which I obliquely address in my post on Presidential Immunity and Partisan Primaries), I think it’s defensible that the Court did not address specific hypothetical cases not before the Court in this case; after all, anything the Court said about those other circumstances would be dicta.

More broadly, I think that we should not hold the Court responsible for the failure of Congress to disqualify Trump from a return to the presidency. The Court has been criticized, both after the oral argument and now after its decision, for deciding this case based on principles that necessarily apply more broadly than just Trump’s own conduct. But I think that criticism is unwarranted. Whatever one thinks appropriate presidential immunity law should be, the Court shouldn’t distort or shape that law just because Trump’s potential reelection is a threat to democracy (as I, among so many others, believe it is). 

It has been a huge mistake, in my view, to try to rely upon criminal prosecution of Trump as the way to derail his reelection. First, the Senate should have convicted Trump, ending the threat of his return to power. After that failed, Congress should have passed a statute to enforce section 3 of the Fourteenth Amendment. (Even though in the Colorado case, I took the position—and still believe—that a congressional statute of this nature wasn’t constitutionally necessary for the Court to reach the merits of the section 3 issue there, it still would have been much better if Congress had explicitly mandated judicial resolution of the section 3 issue.)  Those two avenues would have been the appropriate way to prevent the potential threat to the Republic from Trump’s reelection. 

Whether the criminal prosecution of Trump for his attempt to subvert the 2020 election should move fast or slow should be determined, in my view, entirely by considerations relevant to fair criminal procedure and not at all with respect to electoral politics. With respect to the substantive merits of the prosecution of Trump in the January 6 case, what posture is it in after yesterday’s immunity decision? Based on my reading of the majority opinion, not in the dire posture that I’ve seen some commentators suggest. Much of what’s alleged in the indictment potentially still can go forward, including Trump’s attempt to pressure Pence. (I agree with Barrett that the Court could have declared itself that Trump’s effort to organize alternative electors was unofficial conduct not entitled to any immunity, but that determination is still open on remand, and so again the only “problem” there is a timing one.) 

Without opining on specific hypothetical fact patterns, the Court needed to articulate an immunity doctrine applicable to President Biden as well as President Trump (and all future presidents). It’s not the doctrine that I would have crafted, but it’s not a crazy doctrine. What will matter going forward is how the Court handles the presumption of immunity it’s created for all official acts and how hard or easy it will be to overcome that presumption. It will also matter how the Court distinguishes between official and unofficial conduct. At some point, I may have more to say about Trump’s and the Court’s invocation of the role of President Grant in the 1876 election, as that’s a matter I know something about from my research for Ballot Battles. And, to Rick’s point, it will be necessary for the Court to clarify how to apply its doctrine of absolute immunity for “core” presidential powers—the kind that Justice Robert Jackson’s concurrence in Youngstown put off-limits for any congressional oversight. But I don’t think immunity from the exercise of even a core power absolutely immunizes conduct related to the exercise of the core power that is not itself within the zone of the core, as the example of accepting a bribe in exchange for a presidential pardon shows. I think it’s fairly straightforward to analyze poisoning the AG in the same way: officially dismissing the AG is core, and there can be no punishment for the dismissal itself pursuant to a corrupt motive; poisoning the AG in order to remove him is not core and should easily overcome any presumption of immunity in connection with an official act, even assuming the presumption would be applicable to a presidential directive to a White House staffer to “rid” the president of this “meddlesome” AG by means of poisoning. 

But exactly how the doctrine should apply to future hypothetical cases should be left to those cases if they ever should arise actually (which of course we all hope that they won’t).

New Common Ground Democracy essay on yesterday’s SCOTUS decision, with this subtitle: “The effort to prosecute Trump criminally is a consequence of the Senate’s failure to convict him in the impeachment case, and why did the Senate fail in this? The fear of being primaried.”

It begins: “You might think that the Supreme Court’s presidential immunity decision has little or nothing to do with the need to eliminate partisan primaries in congressional elections, but in fact they are very much related.”

The essay relies heavily on the important point about incentives that Kevin Kosar made in last week’s webinar. This incentives point is yet another key reason why in this “hair on fire” moment there is even greater need to eliminate partisan primaries.

Here’s the link to the recording of the webinar that Election Law at Ohio State held last week on the topic of structural reform of the electoral process–and specifically the policy tradeoffs involved between Instant Runoff Voting (technically, the “Hare” method) and Convergence Voting (technically, “Condorcet”).

Nate Persily is one of our nation’s leading election law scholars (and a friend), with whom I usually agree on many specific matters in our field, but he is quoted today in the N.Y. Times (in an article today by Michael Wines) making a point with which I strongly disagree. The issue being discussed is whether a move from partisan to nonpartisan primaries, of the type used by California in its top-2 system or Alaska in its top-4 system, would significantly help curb the disproportionate strength of MAGA extremists within the Republican Party, leading to the election of more moderate Republicans whose views align more closely with the median voter in the relevant electorate.

Here’s the relevant passage of the article:

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”

I believe that Nate’s characterization of the potential significance of primary election reform is much more pessimistic than is warranted. Instead, I associate myself with Rick Pildes who in his important Dunwody lecture identified the adoption of nonpartisan primaries as the number one reform priority in order to reduce the distorted power of partisan extremists within government. The same priority is expressed in Nick Troiano’s book, The Primary Solution.

There is substantial evidence that partisan primaries (combined with “sore loser” laws, which prohibit candidates who lose partisan primaries from running as independents in the general election) cause voters in November to make a choice between an extreme MAGA Republican and a Democrat, when the median voter in November would prefer a non-extreme Republican over either of these two alternatives. When forced to choose between the extreme MAGA Republican and the Democrats, voters in red-leaning states and districts elect the extreme MAGA Republican rather than the Democrat. This causes voters to send to Congress more “insurrectionists” when the median voters in these congressional districts (and states) would prefer to elect a non-insurrectionist Republican. Replacing partisan primaries with nonpartisan primaries would be a significant step, contrary to Nate’s quote, in removing this distorting dynamic that causes Congress to be populated with many more insurrectionists than the voters actually want.

I have written extensively on this point, in both law review articles and public commentary, and I won’t repeat (or even cite) those writings here. I will offer two simple illustrations of the basic truth. Arizona’s second congressional district is represented by Eli Crane, a MAGA election denialist who was one of the eight extremists who brought Kevin McCarthy down. The only reason why Crane won his seat is because he defeated a more moderate Republican in the partisan GOP primary, and then went on to win the general election in his red-leaning district. There’s no doubt that Crane’s GOP primary opponent would have been preferred over him by his district’s median voter. (In other words, Crane’s primary opponent would have won the general election by an even greater margin than Crane did.) Indeed, at a recent symposium on primary elections research sponsored by Unite America and the National Institute for Civic Discourse, I saw a presentation of empirical analysis conducted by Georgetown University scholars that confirmed this truth.

A second example is J.D. Vance’s victory over Matt Dolan in the 2022 GOP primary for Ohio’s U.S. Senate seat, after Rob Portman declined to run for reelection. Vance is the ultimate insurrection-supporting politician, saying that if he had been Vice President on January 6 he would not have acted as Pence did, whose election to the Senate is a consequence of the distorting effect of partisan primaries. Ohio’s general election voters in November would have much preferred a non-MAGA alternative to J.D. Vance, like Dolan or Portman, but the institutional effect of partisan primaries prevented them from having that option, causing Congress to be more populated by insurrectionists that it otherwise would be based on the true preferences of the median voter of each state and district.

Thus, my view on this key point is exactly the opposite of Nate’s: I agree with him that it is a “hair-on-fire moment” because of the threat of “insurrectionists” and the “dysfunctional” nature of existing institutions under current conditions, but it is precisely because we are in a “hair-on-fire moment” that I think institutional reform to eliminate partisan primaries is such a high priority. To be clear, since January 6, I have repeatedly stated that I thought the two highest electoral reform priorities were (1) revising the Electoral Count Act of 1887, and (2) a requirement that members of Congress be elected by a majority, rather than a plurality, of votes–a reform that would functionally necessitate the kind of nonpartisan primary that both California and Alaska use. Thankfully, we accomplished the first reform before this year’s presidential election. Regrettably, we did not accomplish the second.

A further point of clarity: those familiar with my work in this area know that while I believe nonpartisan primaries are necessary part of the institutional reform to combat extremism, I also believe that in many circumstances nonpartisan primaries alone will not be sufficient and must be coupled with Convergence Voting (in technical terms, Condorcet-based electoral procedures). Depending on the degree of polarization within an electorate, candidates closest to the electorate’s median voter–like Dolan or Portman in Ohio–cannot win even if there is a nonpartisan primary, unless there is also a voting procedure geared to electing the candidate closest to the median voter, as Convergence Voting is. (For those interested in learning more about Convergence Voting and how it differs from the “instant runoff” form of Ranked Choice Voting, tomorrow’s webinar on this subject is very timely.) But to say that Convergence Voting must be part of the prescription to combat the ill of unrepresentative insurrectionism (along with nonpartisan primaries) is no reason to deny–as Nate apparently does–that the use of nonpartisan primaries is effective medicine. Instead, it just needs to be administered as part of an overall treatment plan.

This is why the Arizona reform effort, which the New York Times article describes, is so important (as I’ve written previously). If adopted, it will complete the first essential step of eliminating partisan primaries in that hyper-polarized state–where extremist Crane was able to win his congressional seat, despite his district’s voters preferring the more moderate Republican he beat in the primary–and leave open the next step of adopting Convergence Voting as the way to assure that insurrectionists disfavored by a majority of voters do not prevail.

Finally, it is worth noting (as the Times article does) that the extreme MAGA wing of the Republican Party is doing its best to hold on to partisan primaries. This is because the extremists instinctively know that they need the distorting effect of partisan primaries in order to be able win office. They don’t want any reform that will let voters have their true preference of non-extreme Republicans. Their behavior is additional reason to believe Nate incorrect on this crucial issue.