A new Common Ground Democracy essay. At the conference for which this essay was written, the view was expressed by some that the only solution to the current presidential attack on the rule of law is for Democrats in 2028 to win another “trifecta” that gives them control of the White House and both branches of Congress, as they had after 2020. With that trifecta, according to this view, Democrats would then eliminate the filibuster and unilaterally impose a series of changes over the objection of Republicans. I, for one, do not share this view that only Democrats holding all power can save the Republic from tyranny. Democrats took that kind of unilateral approach in 2021 with their pursuit of HR1/S1 over the unified opposition of congressional Republicans, and not only was it a failure but also a missed opportunity to enact additional reforms using the bipartisan approach of the Electoral Count Reform Act.

Democracy, the Constitution and the rule of law will not be safe as long as only one of two major political parties supports these bedrock premises of American self-government. Instead, the necessary task as challenging as it may be is to rebuild the Madisionian system so that enough members of more than one political party are committed to sustaining its foundations. There needs to develop a coalition of Democrats and non-MAGA Republicans, plus independents, to adopt the reforms that will enable Democrats and non-MAGA Republicans (and others) to compete electorally for power within the structures and limits of the Madisonian system itself. That coalition and the reform it adopts are what will prevent MAGA Republicans or other potentially authoritarian factions from eviscerating the Madisonian system itself.

New Common Ground Democracy essay on Philip Bump’s Washington Post column.

A new Common Ground Democracy post. As discussed therein, it’s worth contemplating what the first 100 days of a Nikki Haley presidency would have been like in comparison, which arguably is what a majority of Americans wanted but were unable to vote for in November because of the existing electoral system. Thus, being forced to choose between Trump and Harris, more voters chose Trump over Harris as the only way to express their desire for a change from the Biden administration. If Trump had realized that his mandate was only to govern as Haley would have, and not to pursue his extreme agenda, his popularity wouldn’t have plummeted in the way that it has during his first 100 days.

Meanwhile, because the existing electoral system produced a Trump rather than Haley presidency, the nation has had to suffer the assault on the constitutional system that Trump has perpetrated and the MAGA-dominated Congress has permitted. In this regard, the Common Ground Democracy post notes that the Wisconsin Law Review has published the final version of “The Real Preference of the Voters: Madison’s Idea of a Top Three Election and the Present Necessity of Reform.

Just in time for March Madness: here’s a Common Ground Democracy essay describing a new form of voting that resembles the much-beloved NCAA men’s and women’s tournaments. This essay is based on my contribution to the symposium that the Ohio State Law Journal recently held on Nick Stephanopoulos’s book Aligning Election Law. Bracket Voting is a “Condorcet-consistent” electoral method. Its two main virtues are (1) unlike other Condorcet-consistent systems, it doesn’t require any additional rules for an election that has no Condorcet Winner; instead, whoever wins the election according to the Bracket Voting procedure wins the election (but a Condorcet Winner, when there is one, will always prevail given the structure of Bracket Voting); and (2) the similarity of its format to familiar sports tournaments will make it easy for voters to understand and viewed as an inherently fair form of electoral competition.

The latest in the mini-series of podcasts relating to Ohio State Law Journal‘s symposium on Nick Stephanopoulos’s Aligning Election Law features Joshua Sellers. It’s a really great discussion. Available on YouTube and Apple Podcasts.

To whet your appetite for tomorrow’s symposium on “Election Law in a Misaligned America”, a preview “Law and Democracy” podcast with Nick Stephanopoulos is available on YouTube and Apple Podcasts. It’s an informative conversation, which I plan to invoke in my own remarks at the symposium tomorrow.

As part of its mini-series of episodes previewing the symposium on Nick Stephanopoulos’s book Aligning Election Law, the Law & Democracy podcast invited Rick Pildes, who will be participating in the symposium, to provide some preliminary thoughts on Nick’s book and how it relates to his own views on election law. You can listen to the conversation on Apple Podcasts or watch on YouTube.

Over at Common Ground Democracy, I’ve posted “The Senate Has Surrendered Its Constitutional Responsibilities,” explaining that the existing electoral system has caused the Senate to fail in its constitutional role of thwarting presidential despotism and “electoral reform can restore the Senate to its essential role of protecting against an autocratic president.”

I want to call on members of the election law community who agree this perspective to share their expertise in light of the current situation that the nation faces. We are in the midst of significant public discussion of whether the United States is now experiencing a constitutional crisis or only on the verge of one. Prominent law professors who specialize in constitutional law are called upon to evaluate the circumstances and offer their views on whether there is a way out of this predicament and, if so, what. Most of the discussion has focused on whether or not the federal judiciary can protect the rule of law, including the Constitution, from a president who seems determined to destroy the existing system of checks and balances and convert the country into an autocracy. Relatively little of this public discussion has concerned the role that election law has played in getting the country into this mess or, especially, what potential changes to election law could protect the country from similar danger in the future (assuming the Constitution is capable of withstanding the present challenge).

If America is to understand how and why it got to where it is now (the proper diagnosis of the malady) and what must be done to put its constitutional system back on sound footing (the proper prescription for the cure), those of us in the field of election law will need to supplement the analysis being provided by professors of constitutional law. As someone who has had the privilege to teach both constitutional law and election law for over three decades, I appreciate what’s distinctive about both fields as well as the degree to which they overlap. In light of what I have learned over this time, I earnestly believe that what’s happening to the Constitution cannot be understood without the addition of a distinctive election law perspective. My Common Ground Democracy essay on how and why the Senate has failed us, like my recent scholarship on the relationship of Madisonian constitutional theory and electoral system design, is an effort to contribute to this endeavor. I look forward to reading what other election law scholars believe is called for in the current moment.

The Ohio State Law Journal is hosting a symposium focused on Nick Stephanopoulos’s important new book Aligning Election Law. It’s next Friday, February 21. It’s got a great lineup of presenters, including Nick’s keynote and follow-up conversation with my Ohio State colleague Steve Huefner. I’m very much looking forward to the event. The agenda and registration link are here.

The latest episode of the Law & Democracy podcast is a preview for the symposium that the Ohio State Law Journal is hosting to discuss Nick Stephanopoulos’s important new book Aligning Election Law. More details about the symposium will be forthcoming soon. The date is Friday, February 21. Meanwhile, you can listen to the podcast to get an initial taste of what the symposium will discuss.

Nate Atkinson and Ezra Friedman have posted this paper on SSRN. Here’s the abstract:

Should states retain plurality rule or adopt a different voting method? We study the class of sequential plurality procedures, covering all widely-used single-winner election methods and proposals (including plurality, top-two runoffs, and instant runoff voting). We compare methods by whether a majority prefers the outcome of one method to that of another across all possible preference profiles. We show that a top-two runoff is the only procedure that robustly dominates plurality rule. All other methods perform better in some cases and worse in others. We further characterize the full set of dominance relations among sequential plurality procedures.

Although much of the paper is technical, its main conclusion should be of interest to election reformers. Note: the paper is an examination of voting rules that prioritize first-choice preferences and does not include within its analysis Condorcet-based voting rules.

On Thursday, Rick linked to a DemocracySoS essay by Greg Dennis arguing that Instant Runoff Voting (IRV) is categorically “superior to Condorcet Voting as a tool for political depolarization.” To support his position, Dennis offers two arguments, neither of which I find persuasive as I explain in this Common Ground Democracy essay. To summarize briefly here: (1) Dennis argues that adopting Condorcet Voting wouldn’t make any real-world difference, relying on Nick Stephanopoulos’s data without acknowledging the data’s limitations that Nick himself acknowledges–limitations made abundantly clear by last year’s presidential election; and (2) Dennis contends that a comparison of the campaign incentives created by IRV and Condorcet Voting yields the conclusion that IRV will depolarize politics while Condorcet Voting will make polarization worse. My view is that this analysis is mistaken, at least in many contexts, as is evident by considering again last year’s presidential election or the contemporary electoral dynamics in many red states, like Ohio. The bottom line is that “it’s wrong to argue that Condorcet Voting should be rejected entirely and everywhere.” Instead, as laboratories of democracy, states should consider Condorcet Voting along with IRV as among the available potential remedies for what’s currently wrong with their existing electoral system.

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.