A short Common Ground Democracy post with this subtitle: “Post-inauguration, there continue to be misunderstandings of the election.”

Democracy: A Journal of Ideas published this piece that I wrote on the failure of the electoral system to produce an outcome corresponding to “the real preference of the Voters” (Madison’s term for when a third candidate is preferred by a majority of voters compared one-on-one against each of the top two candidates).

The piece emphasizes our nation’s inability to understand correctly Trump’s victory over Harris in November because Trump won the national popular vote, unlike in 2016. Trump’s second term certainly cannot be considered an Electoral College mistake, but as the piece explains “a difference in the outcomes of the Electoral College and the national popular vote is not the only way that the existing electoral system distorts the results.” Instead, partisan primaries block a candidate less popular within a party from demonstrating in November that she would be more popular among all the nation’s voters than either her own party’s nominee or the opposing major-party nominee. The piece contends that Nikki Haley is that kind of candidate (technically, a Condorcet Winner, which is the same as a Madisonian “real preference of the Voters”), but you don’t need to be convinced of that point to believe that the existing system is flawed insofar as it doesn’t let a candidate like Haley demonstrate whether or not in fact she would beat either major-party nominee one-on-one.

On the eve of Trump’s second inauguration, the media is replete with stories reflecting this pervasive misunderstanding of Trump’s popular vote victory over Harris. In The New York Times, for example, Peter Baker writes today: “Mr. Trump arrives at 1600 Pennsylvania Avenue not as a fluke Electoral College winner who fell short in the popular vote. He takes the oath on Monday with a burst of momentum propelled by a victory in the popular vote.” Baker’s point is that Trump’s popular vote victory has caused even his opponents to believe that the country is now “on Mr. Trump’s side.” Baker quotes Patrick Gaspard, president of the Center for American Progress (a progressive think tank): “‘The humbling reality of a popular vote victory for him requires a lot of self-reflection and inward looking.'” Indeed, there are at least two other pieces on the front page of the Times‘s website today attempting to grapple with the significance of Trump’s popular vote victory: one concerning how it deflated popular resistance to Trump, and the other (an opinion essay by Ezra Klein) on the magnification of Trump’s victory as a cultural force.

To understand Trump’s popular vote victory properly, I believe that it’s essential to imagine what it would be like if tomorrow Nikki Haley’s presidency were beginning rather than Trump’s second term. Some things I think would be the same, as they should be assuming that Nikki Haley also would have beaten Kamala Harris head-to-head in the national popular vote. For example, many commentators have observed the corporate abandoning of DEI programs in the wake of Trump’s victory, interpreting it as a backlash against excessive wokeness. I suspect that if a Haley presidency were commencing tomorrow, this curtailment of DEI excess would be essentially the same, as Haley’s campaign on this point would have been substantially similar to Trump’s (although more measured in tone).

In other respects, however, a Haley presidency would be very different from Trump’s second term. No Kash Patel. No threats of revenge. No risk of Orban-style authoritarianism.

The correct way to understand Trump’s popular vote victory is to understand that it represents a mandate to the extent, but only to the extent, that Nikki Haley would be pursuing the same agenda. It is not, however, a mandate for all that distinguishes Trump from Haley–especially his dictatorial aspirations.

I’ve written this Common Ground Democracy [Substack] essay to summarize what’s important about James Madison’s 1823 letter that I analyze in the new law review article posted on SSRN, to be published in the Wisconsin Law Review. The key point is that America’s Madisonian democracy faces its current crisis because it failed in its essential purpose of preventing a would-be authoritarian from gaining power when that potential autocrat is not even “the real preference of the Voters,” to use Madison’s phrase in the letter–and further failed to have the Senate serve its role as a check against an abusive president because the Senate too is elected in a faulty system that does not reflect “the real preference of the Voters.” If Madisonian democracy is to survive this crisis, we must understand what’s significant about his letter and implement the necessary change to the Madisonian system we’ve inherited.

I have posted this new paper on SSRN. It will be published in the Wisconsin Law Review as part of a symposium held last September. The paper focuses on an 1823 letter written by James Madison, the significance of which has not been previously appreciated.

Here is the paper’s abstract:

Madisonian democracy, as James Madison himself propounded it and as it has subsequently become to be practiced in the United States, has been viewed as different from the democratic theory developed by the French philosopher Marquis de Condorcet and the many subsequent scholars of social choice working in Condorcet’s wake. A letter that Madison wrote late in life, however, shows that Madison comprehended and embraced Condorcet’s insights on the mathematics of majority rule. Recognizing the significance of this letter should shape not only our understanding of Madison’s own political thought but also our ideas about the ongoing evolution of Madisonian democracy in America.

Madison’s letter described a Condorcet-based electoral system that, if put into effect, would enable election results to achieve what Madison termed “the real preference of the Voters.”  Adopting this electoral system, moreover, would protect Madisonian democracy from the threat of an authoritarian demagogue who is able to prevail currently by first winning a partisan primary and then being more popular than the opposing party’s nominee. Madison’s Condorcet-based system, by contrast, would enable a third consensus-building candidate, who is unable to beat the authoritarian demagogue within their party’s primary, to demonstrate that a majority of the whole electorate’s voters prefer that third candidate to either major-party nominee.

The New York Times has a big piece posted this morning by Jesse Wegman and Lee Drutman advocating for using proportional representation (PR) to elect members of the federal House of Representatives (and expanding the size of the House to accommodate PR). The piece is definitely worth a read; it has some very snazzy graphics. But to my mind it oversells PR as the solution for our nation’s currently dysfunctional democracy.

If you’d like to read more on PR in the context of an overall discussion of potential electoral reforms that would address the current dire conditions of American democracy, I encourage you to read the new book co-edited by Larry Diamond, Rick Pildes, and me (available at no charge here). There’s a chapter on PR by Lee Drutman, where he makes a more extended case for the argument summarized in The NY Times essay. There is also a chapter by Rick Pildes, making a contrary argument that PR might make conditions even worse. There is even a short note by me that is more neutral on the topic of PR, pointing to the “self-districting” system that I’ve proposed, which would operate as a form of PR in the context of single-member districts with which Americans are familiar–and thus has the advantage of not requiring the elimination of the single-member district requirement for seats in the federal House of Representatives. One of the main points of the Wegman-Drutman NY Times essay is the need to eliminate this federal law in order to adopt their proposal. But that wouldn’t be necessary to pursue the self-districting form of PR.

My main concern about the Wegman-Drutman piece and its emphasis on PR as a cure for the nation’s electoral ills is that it essentially ignores elections for the Senate and the presidency. There is a single sentence in the entire piece, towards the very end, devoted to those two other elected parts of the federal government: “Elections for the Senate and the presidency would remain as they are.”  Wegman and Drutman seem to think that wouldn’t be a problem as long as the House is transformed by PR into what they call a “multiparty legislature” (although it would be just a single chamber within the bicameral legislature).

I’m not nearly as optimistic. Even if multiple parties flourished in the House in the way Wegman and Drutman envision, there’s every reason to believe that the same two-party dynamic would dominate elections for the Senate and the presidency as long as the procedures for those elections remain the same: partisan primaries followed by plurality-winner general elections. Indeed, as Wegman and Drutman acknowledge when describing why the current two-party competition exists for House elections, it’s this existing electoral system–which they label “the electoral software”–that inevitably “generates two dominant parties and relegates third parties to playing the role of spoiler and wasting their supporters’ votes.” Changing the procedures for House but not Senate and presidential elections will still leave the nation with the same two-party system for the Senate and presidency.

We need no reminder this week why reforming presidential and Senate elections is every bit as important as reforming House elections. It is the existing electoral system that led to the reelection of Donald Trump, even though he almost certainly would not have prevailed in an electoral system designed to elect the Condorcet Winner among all the candidates in the race. Likewise, it is the existing electoral system that led to the election of the Senate that will vote on, and according to news reports, likely confirm Trump’s controversial nominees. The 53 Republicans in the current Senate include some who, like Trump, would not have won in a Condorcet-based electoral system. A Senate elected with Condorcet-based procedures would be much less likely to have enough votes to confirm Pete Hegseth for Defense Secretary, for example (because the Republicans who would have won those races would come from the traditional, non-MAGA wing of the party.) Even without Condorcet-based procedures, all of the Republican senators would feel less fearful of being primaried by a Trump-endorsed opponent if the system for Senate elections were modified to eliminate partisan primaries. Accordingly, a Senate elected with different procedures would be much more likely to block some of Trump’s most extreme nominees.

The future of American democracy will be affected at least as much, if not more, by how we continue to elect the president and the Senate as by how we elect the House. So, by all means, let’s consider ways of improving elections to the House, including the possibility of using a form of PR to do so. But let’s not neglect the necessity of pursuing electoral reforms that will enable Americans to have the presidents and senators they prefer, rather than being limited by the choice offered by the existing two-party system. The fate of the nation depends on our capacity repair these elements of our flawed system as well.

Reform Elections Now hosted a webinar on Electoral Reform in the United States:
Proposals for Combating Polarization and Extremism (edited by Larry Diamond, Rick Pildes, and me.). This webinar offers a useful introduction and overview of the book’s content and includes a valuable discussion on how best to achieve the kind of reforms that would be most useful.

As noted in this new Common Ground Democracy post.

On Tuesday, December 10 (one week from today), AEI is hosting an event to discuss the forthcoming book Electoral Reform in the United States: Proposals for Combating Polarization and Extremism. Details on the event, and a link to RSVP for either in-person on online attendance, are available here. (There was an ELB notice shortly before Thanksgiving, but in the aftermath of the holiday a reminder is perhaps useful.)

UPDATE: the electronic version of the book is now available, at no charge, at this link.

You’re Invited to an AEI-hosted Book Release:

Electoral Reform in the United States: Proposals for Combating Polarization and Extremism
Edited by: Larry Diamond, Edward B. Foley, and Richard H. Pildes

Tuesday, December 10, 2024 | 8:30 AM to 12:15 PM ET
AEI Auditorium
1789 Massachusetts Avenue NW, 
Washington, DC 20036

Registration & Livestream
This event will be held in person and livestreamed.
Please RSVP here.

Join us for the release of Electoral Reform in the United States: Proposals for Combating Polarization and Extremism (Lynne Rienner Publishers), a comprehensive new book that explores critical reforms to enhance the U.S. electoral system. The book is the product of a multi-year Task Force on Institutional Reforms to Combat Political Extremism, which involved political scientists, legal academics, and other scholars deliberating on what available evidence shows to be the most effective means for redressing the distortions within existing electoral procedures that cause the overrepresentation of political extremism among officeholders. 

The discussion on December 10 to highlight the book’s analysis and recommendations will provide an opportunity to engage with the book’s authors, other scholars, and other thought leaders on reform strategies for reducing polarization, enhancing democratic responsiveness, and addressing the challenges facing American democracy. 

About the Event
This special event is designed for journalists, policymakers, and members of the public with an interest in improving the U.S. electoral system. Key contributors will present insights from each of the book’s chapters and discuss the collaborative efforts of the Task Force that shaped the book’s proposals.

Agenda

8:30 – 9:30 AM | Introduction and Overview
Speakers: John Fortier and Richard H. Pildes

9:00 – 10:30 AM | Panel One: Electoral Systems

• 9:00 – 9:15 AM | Ballot Structures – Edward B.  Foley
• 9:15 – 9:30 AM | Proportional Representation I – Lee Drutman
• 9:30 – 9:45 AM | Proportional Representation II – Richard H. Pildes
• 9:45 – 10:00 AM | Primary Elections – Rob Boatright
• 10:00 – 10:30 AM | General Discussion of Electoral Systems

10:30 – 10:45 AM | Break

10:45 – 11:15 AM | Presidential Nominations
Speakers: Richard H. Pildes & John Fortier

11:15 – 11:45 AM | Campaign Finance
Speakers: Ray La Raja & Brandice Canes-Wrone

11:45 – 12:15 PM | Concluding Observations & Prospects for Implementation of Reforms
Speaker: Larry Diamond

Each discussion will include time for Q&A with attendees.

About the Book

“This volume is a treasure trove of ideas about how to make our electoral system better—less polarized, more responsive to citizens. In it, big thinkers discuss big ideas. Their analyses are rich, detailed, and incisive. This might very well turn out to be the book that launches a thousand reforms.” — Costas Panagopoulos, Northeastern University

“At this time when distrust and partisanship are too often justifications for the status quo, the authors offer evidence-based, consensus-driven, achievable proposals to improve governance in the United States. Anyone interested in reforming US democracy should start here.” — Derek T. Muller, Notre Dame Law School

Attendees will receive a hard copy of the executive summary, with the full book will be available online on December 10, 2024.  

Buy a hard copy of the book here.

We look forward to welcoming you for a stimulating conversation on how thoughtful reforms can lead to a more resilient and representative democracy.

The published version of this article in the Illinois Law Review, co-authored with Nate Atkinson and Scott Ganz, is now available. Here’s its abstract:

Ranked-Choice Voting (“RCV”) is growing in popularity among election reformers, who have coalesced in particular around Instant Runoff Voting (“IRV”), a specific form of RCV that has recently been adopted in Maine and Alaska and will likely be proposed in many more states as ballot initiatives in the coming years. While reformers hope that IRV can ameliorate extremism and political polarization, this paper presents empirical evidence that undercuts these hopes. For instance, Alaska’s very first election following the state’s adoption of IRV signaled that the method may fail to elect the candidate most preferred by a majority of the state’s voters. Extrapolating from Alaska’s experience, and using a nationally representative sample of over 50,000 voters, we analyze the prospective effects of adopting IRV in every state. This analysis shows that IRV tends to produce winning candidates who are more divergent ideologically from their state’s median voter than do other forms of RCV. And the effect is most pronounced in the most polarized states—precisely the electorates for which IRV is being promoted as an antidote to existing divisiveness. We conclude by highlighting other formulations of RCV that result in more representative outcomes and are thereby better positioned to combat extremism and political polarization.

The published version of this article in the Illinois Law Review is now available. Here’s the abstract:

The standard system of statewide elections for governor and U.S. senator, among other offices, deserves a thorough overhaul. The collection of signatures by candidates to qualify for the ballot, currently confined to antiquated pen-and-paper technology, can be modernized and put online so that it can function as a kind of “approval voting” system that yields a reasonable number of candidates (five, for example) for a primary election ballot. Likewise, online party conventions can enable parties to endorse candidates before the primary occurs and to have their endorsed nominees qualify for the government’s “All Qualified Candidates Primary” ballot. Moreover, innovative forms of Ranked Choice Voting—like “Optimal Tournament Voting”—can be used to identify the two candidates on the primary ballot most suitable to advance to the general election, with suitability for this purpose determined by which candidates are most representative of the whole electorate.

Alternatively, even without ranked-choice ballots, the mathematical principles and procedures of Optimal Tournament Voting can be used to create a “top three” general election, in which voters directly express their preferences between each pair of the three candidates who advance to the general election—from an All Qualified Candidates Primary in which voters select the single candidate they most prefer, and the three candidates with the most votes in the primary qualify for the general election ballot. Moreover, whether the general election has two or three finalists on the ballot, “fusion voting” can be employed in the general election to permit parties whose nominees are not one of the finalists to renominate whichever finalist they prefer. States should experiment with these innovative alternatives and other variations along the same lines so that elections for statewide offices, like governor or U.S. senator, will produce winners who are the candidates most preferred by a majority of the electorate’s voters.

A new Common Ground Democracy essay on how the fear of being primaried is preventing the Senate from serving its constitutionally essential role of checking excessive presidential power.

Derek reflects on this year’s election and its implications for election law. Available on Apple Podcasts and YouTube.

YouTube and Apple.