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.

I won’t repeat all of the previous ELB post announcing this webinar on alternative electoral reforms to improve American democracy, especially in light of increasing partisan polarization. I will simply note that the French legislative elections, the first round of which is this coming Sunday, is a stark reminder of the stakes involved in the choice of an electoral system. The U.S. is hardly alone in facing the dangers of hyper-polarization. France, like the U.S., has tried since the late eighteenth century to make democracy work. Both countries have had their share of difficulties in this regard: France with its Reign of Terror when its revolution spun out of control, the U.S. with its Civil War and failed Reconstruction. The question for both countries now is whether they can draw upon their common heritage of political science about the design of republican government, a heritage stemming from the Enlightenment, to develop and implement to procedures for self-government in order to avoid its demise.

The webinar is on Wednesday at 3pm ET. Here, again, is the registration link.

New Common Ground Democracy essay with this subtitle: “The likelihood that extremist parties on the right and left will gain at the expense of the middle illustrates with hyper-polarization necessitates electoral reform.“

The essay begins: “France is facing a political crisis that it could have avoided if it had adopted an electoral system of the type advocated by its most prominent theorist of electoral system design, the eighteenth-century mathematician and philosopher Marquis de Condorcet.”

The Election Law team at Ohio State University is hosting a thought-provoking webinar on Wednesday, June 26, from 3-4 pm to discuss the possibilities of Structural Reform of U.S. Elections, with a focus on the nuanced differences two different electoral methods: one is commonly called Instant Runoff Voting and known to election specialists as the “Hare method” because of its British inventor, Thomas Hare; the other is best described as “Convergence Voting” because of its mathematical property of identifying the candidate upon whom different majorities of voters converge to elect the candidate who achieves the broadest support within the electorate. Election specialists generally credit the Marquis de Condorcet, an eighteenth-century French philosopher, as proposing the mathematical principle of Convergence Voting (although 500 years earlier a thirteenth-century Majorcan philosopher named Ramon Lull developed the same mathematical principle, but his innovation was lost to history until recently).

Our panel of election reform experts and researchers will explore the pros and cons of these two alternative electoral systems as potential remedies for the problems that currently plague American elections, including the failure of existing electoral structures to produce outcomes that match the overall preferences of voters and, relatedly, the tendency of the existing system to exacerbate the pathology of hyperpolarized politics.
Much more than just a question of technical mathematics, the choice of what electoral system to adopt is ultimately a philosophical decision about what kind of democracy we want. Our conversation will illuminate what’s at stake in making this choice, so that citizens can better understand how to achieve the form of self-government they consider best.

A link for registering for this webinar is available here.

Panelists:

Deb Otis, is the Director of Research and Policy at FairVote. With a decade of experience in research and analytics, Deb is passionate about sharing the data-driven case for why our country needs election reform. In addition to ranked choice voting and proportional representation, Deb’s areas of research include comparative electoral systems, political polarization, redistricting, representation for women and people of color, the electoral college, and election recounts. Deb is a graduate of Boston University with degrees in Economics and Physics and she lives in Washington, DC.

Kevin R. Kosar, is a senior fellow at the American Enterprise Institute (AEI), where he studies the US Congress, the administrative state, American politics, election reform, and the US Postal Service. He edits UnderstandingCongress.org and hosts the Understanding Congress podcast.
 
Edward B. Foley, holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. His writing and teaching focuses, in part, on voting system design, gerrymandering, the Electoral College, and electoral reform. Foley is a 2023 Guggenheim Fellow and, from January to March 2024, a Visiting Professor at the University of Arizona Rogers College of Law. For the 2024-2025 academic year, he will be a Crane Fellow in Law and Public Policy at Princeton University. 

Moderator:

Professor Steven Huefner, C. William O’Neill Professor in Law and Judicial Administration, Moritz College of Law, and Deputy Director, Election Law at Ohio State.

This post has been updated to include the webinar registration link.

Oxford University Press has published a revised and expanded edition of Ballot Battles: The History of Disputed Elections in the United States. It’s also available in a Kindle version for those, like me, who prefer to read (and highlight) electronic copies.

The first edition of Ballot Battles was released in December of 2015, before Trump emerged as the transformative force in American politics that he has since become. (Although my son told me in the summer of 2015 that Trump would win the 2016 election, I did not believe him. When Trump said that John McCain was “not a war hero” and that he only “like[d] people who were not captured,” as he did in July of 2015, I assumed he had no chance of winning the presidency and could be crossed off the long list of Republican contenders at the time. How wrong was I, as were many others!) I’ve been extremely gratified by the first edition’s reception, including the honor of being a finalist for the Langum Prize for books in American legal history.

This second edition of Ballot Battles brings the nation’s experience with disputed elections up to date, with a new chapter focusing on Trump’s refusal to accept his defeat in 2020. In addition, the book’s Introduction and Conclusion have been thoroughly revised in light of the significance that Trump’s evidence-free denial of Biden’s victory has in relation to all previous disputes over the outcome of elections in the nation’s history. Likewise, other chapters have been revised insofar as discussion and analysis of them benefit from comparisons to Trump’s behavior in 2020.

Although I certainly hope that the results of this year’s elections are undisputed in any significant way, to the extent that any of them are–especially the presidential election–or to the extent that anyone wishes to prepare for that possibility in advance, I hope that the availability of this new edition now provides a useful service.

A new Common Ground Democracy post describing a Reform Elections Now event where I discussed the Top-3 Voting proposal.

Jason Willick has a new Washington Post column addressing an issue that I’ve pursued in prior scholarship and other writings–and also raised recently on ELB in connection with a New York Times story.

The issue is what kind of improprieties do, and do not, qualify for undermining the validity of an election. In my work on this work, I’ve endeavored to draw a sharp distinction between improprieties that negate voter choice (and therefore do undermine the validity of the election, because they prevent the exercise of collective self-government by the eligible voters wanting to participate in making an electoral choice) and improprieties that influence voter choice (which, while reprehensible, do not undermine the validity of the election, because they don’t prevent voters from participating and making their own judgments about how to cast their ballots).

Willick’s column pursues this issue in the context of the prosecution’s summation in the Trump “hush money” trial. He writes that the prosecution wrongly argued that Trump delegitimated his 2016 victory by concealing from voters information that they should have received. Whether or not the prosecution went so far as to say that the result of the 2016 election was invalid because of Trump’s alleged misconduct, I agree with Willick that–according to the sharp dichotomy that I draw–Trump’s “suppression” of “damaging allegations of extramarital liaisons” falls into the second category concerning misbehavior that influences voter choice and thus does not undermine the validity of the election.

I wish, however, that Willick’s analysis of this issue was as categorical in its approach as my proposed bright-line distinction endeavors to be. Instead, Willick speaks of a “continuum” of election denialism and asserts that the New York prosecutors engaged in a “soft form of election denial.” I worry that this way of talking about the topic potentially muddies a distinction that should be as crystal-clear as possible.

Like Willick, I believe that politicians can be punished for campaign finance violations, but those misdeeds do not negate voter choice and thus do not undermine an election’s validity. Similarly, disinformation campaigns–like the infamous Swiftboating of John Kerry–may be actionable under civil or even criminal defamation laws under New York Times v. Sullivan, 376 U.S. 254 (1964), and Garrison v Louisiana, 379 U.S. 64 (1964). But as deplorable as deliberate smears about a candidate may be, they too do not negate voter choice and thus do not undermine an election’s validity.

I hope that during this campaign the media can maintain this distinction, so that the public understands what’s an appropriate basis for claiming an election result is invalid–and what is not.

The N.Y. Times this morning has as the top story on the front page of its website a very impressive statistical analysis of Trump’s statements sowing distrust in the legitimacy of the election in 2016, 2020, and so far this year.

In my judgment, however, this piece (like much other public discussions of this topic since 2016) conflates two different types of claims, which need to be kept separate if as a society we are going to have any hope of accepting and respecting the results of an election.

The Times piece, for example, lumps together (1) Trump’s false claim that he, not Biden, won more valid votes in enough states for 270 electoral votes in 2020, once allegedly fraudulent and thus unlawful votes are discounted, with (2) Trump’s complaints that the electoral process is “rigged” against him. Perhaps the most famous example of the first category is Trump’s brazen assertion on Election Night that “frankly, we did win this election.” An example in the second category, which the Times cites (without distinguishing it from the first kind of claim) is Trump’s assertion that this year’s election is “rigged” because of the Biden DOJ’s prosecutions of him.

The reason why it’s imperative (in my view) to keep these two categories distinct is because they relate to the “legitimacy” of an election in importantly different ways. If an election is indeed “stolen” because of enough fraudulent votes added to the tally determined which candidate was declared the winner, that fact–once proven in court–is sufficient reason for the court to overturn the invalid outcome. By contrast, even if it could be conclusively demonstrated that enough voters were influenced by DOJ’s prosecution of Trump to cause him to lose the election this year, that fact would provide no basis whatsoever for a court to declare the outcome invalid: the votes of those voters persuaded by the DOJ prosecution would still be valid votes, just the same as any votes cast by any eligible voters whatever persuaded them to vote the way they did.

Unfortunately, our nation’s public discourse about presidential elections has elided this crucial distinction in recent years. This has been a serious problem since at least 2016, when many prominent Democrats cast doubt on Trump’s victory on the ground that Russia attempted to influence the outcome of the election. Even if it could be shown that Russian disinformation caused Trump to win, that would not negate the validity of the votes cast for him in 2016–just as the Swiftboating of John Kerry did not negate the validity of the vote cast for George W. Bush in 2004.

Voters make up their minds about how to vote based on whatever sources of information, and even disinformation, they choose to believe. The ballots they cast as a result of their electoral choices are valid ballots, whatever the reasoning process they engaged in to make their electoral decision. They are not fraudulent votes that, if outcome-determinative, indeed must be excluded from the final certified result of the election in order to have a valid victory.

If as a society we cannot maintain the clarity of this crucial distinction, we cannot hope to know whether or not we have valid electoral outcomes worthy of respect. And if we cannot know that, we cannot sustain self-government.

There are many reasons to claim that the electoral process is “rigged” and illegitimate. One could argue, as many do, that the Electoral College system itself is unfairly “rigged” in favor of Republicans. One can contend, as many also do, that elections are unfairly “rigged” because of the influence of campaign spending that should be curtailed in ways forbidden by the Supreme Court’s interpretation of the First Amendment. One might also assert, as some do, that the electoral process is unfair because powerful media or social media companies are biased in favor of one candidate or another.

But none of these claims about the legitimacy or illegitimacy of the electoral process in a broad or philosophical sense of political legitimacy affects the validity of votes cast by eligible voters in the electoral system as it currently operates.

I discussed this point more extensively in a 2020 online article for the NYU Law Review as well as a follow-up piece for Politico.

To be sure, Trump himself continues to egregiously conflate this crucial distinction. He wants voters to be confused into thinking that there’s just as much a basis for repudiating the result because of an unfair DOJ prosecution as allegedly stuffing the ballot box with enough fake votes to flip the result.

But the fact that Trump confuses his supporters in this way is no excuse for the N.Y. Times to repeat the same mistake in its coverage of the topic. The Times appropriately views its mission as to inform and educate its readers, so that they can more intelligently understand and perform their essential role as citizens in our electoral democracy. Doing so requires explaining to its readers the distinction between (a) attacking the system because of alleged unfairness and (b) asserting that an election was fraudulently stolen.

Because Trump is attempting to undermine democracy by collapsing this distinction, it is all the more imperative that news outlets like Times carefully clarify this distinction in its coverage of the campaign.

New Common Ground Democracy essay on the Supreme Court’s decision yesterday involving South Carolina’s congressional districts. There’s a way to avoid all the difficulties, and disagreements, over the relationship of race to redistricting: it’s to give the decision of what district a voter is in to the voters themselves, rather than to the government. The essay explains how this could be done, drawing from my Kentucky Law Journal article on the same idea.

The Washington Post has published several responses to the op-ed written by three GOP ex-senators: Danforth, Cohen, and Simpson. In their op-ed, they explained that they are creating a new organization called “Our Republican Legacy” inside the Republican Party. The premise of their endeavor, they said, is their belief that “traditional Republicanism, though currently in eclipse, is no more extinct than the sun was over portions of the country on April 8.” Their plan is for their new organization to “facilitate” the “expeditious return” of old-guard Republicans.

One of the responses to this op-ed that the Post published was mine. My point was that these three ex-senators, while laudable in their motives, are mistaken if they think their “traditional Republicanism” can make a “comeback” without electoral reform along the lines that Eric Maskin and I have been advocating. I cite the examples of Rob Portman and Matt Dolan–their kind of Republican in Ohio–as unable to compete under the existing electoral system, even though the median voter in Ohio would prefer them to the MAGA candidates, like J.D. Vance and Bernie Moreno, that emerge as the nominees of MAGA-dominated Republican primaries. I also cite Nikki Haley’s inability to prevail in this year’s Republican presidential primary even though she would beat either Biden or Trump head-to-head. If traditional Republicans like these three ex-senators don’t learn to embrace the electoral principles of Condorcet, upon whose insights Eric Maskin and I rely, they will become extinct like dinosaurs–leaving Americans only Democrats and MAGA candidates from which to choose.

New Common Ground Democracy column, with this subtitle: “Until electoral reform occurs, the best way to protect democracy is for a bipartisan coalition to join together in a campaign against a would-be autocrat.” The reference to “traditional” Republicans is to this recent Washington Post opinion piece, which (while well-intentioned) fails to recognize that it will be impossible for the non-MAGA wing of the GOP to resuscitate itself without electoral reform according to Common Ground Democracy (in technical terms, Condorcet-based) principles.

Order. Early coverage in the Times, the Post, and Reuters. I’m sure others will want to comment on this complicated case. I note here only that under my self-districting proposal, these messy issues would be entirely avoided.

I’ve posted on SSRN this paper, to be published in the Florida Law Review. Here’s the abstract:

The Madisonian political philosophy upon which the U.S. Constitution rests did not supply the nation with a well-developed theory of electoral procedures. Instead, Madisonian philosophy concentrated on the separation of powers and other elements of constitutional architecture, including federalism, in order to prevent factions from subverting the common good. Subsequent history has demonstrated that Madisonian constitutional architecture, while necessary, is not sufficient for democratic government to operate in the interest of the people as a whole rather than on behalf of a faction and its own interests. Instead, it is necessary to supplement Madisonian constitutional architecture with a well-designed electoral system that accords with Madisonian values.

Maximum Convergence Voting, a method of electing a single winner when there are more than two candidates, is the method that most accords with Madisonian principles underlying the Constitution. Derived from the work of the Marquis de Condorcet, a French contemporary of Madison (and the Constitution’s other Framers), whose electoral theories Madison would have admired if he had studied them, Maximum Convergence Voting is the method that most avoids the election of a factional candidate and instead elects the candidate who achieves the greatest common ground among all the voters in the electorate. This essay describes how Maximum Convergence Voting operates, how it can take several different forms—including a Top-Three electoral system that is a variation of California’s existing Top-Two system (and Alaska’s existing Top-Four system)—and how it also can be used for presidential elections.

This paper, like my other recent work on electoral system design, is a preliminary sketch of ideas I am pursuing in a book on this topic. Comments, both on this specific paper and on the topic in general, are very welcome.

A Common Ground Democracy essay on why, contrary to some recent assertions, Robert F. Kennedy, Jr. would not be the “Condorcet winner” in a well-designed Condorcet-based electoral system.