All posts by Ned Foley

“The Future of the Two-Party System?: Lessons from the North Carolina Senate Race”

Election Law at Ohio State is pleased to host this webinar. Here’s the description:

In our current highly polarized political environment, the system of party primaries in most states risks eliminating consensus candidates from the general election. These consensus candidates may in fact have broad support among the electorate, yet can be shut out of the process as it is now. General elections often pit two candidates – one from each end of our cleaving political spectrum – against one another with the result that the vast middle feels deserted.
 
Is the current North Carolina U.S. Senate race, both the just-concluded primary and the general election to follow, a further sign of a national problem? Would other types of electoral systems, for instance some form of Ranked Choice Voting, make a difference? Our panel of experts will dive into these questions and more.

Panelists include Guy-Uriel Charles, Sunshine Hillygus, and Dawn Vaughan, as well as Steve Huefner and me from OSU, with links to biographical info on the registration page. Should be a great conversation!

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Requiring Majority Winners

This paper, entitled Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism, is now in page proofs: 26 Lewis & Clark Law Review 365 (2022). Here’s the abstract:

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

The paper was originally presented a year ago, in May 2021, as part of an AALS conference on Rebuilding Democracy and the Rule of Law. The hope then had been that, if the idea caught on, it could have been adopted in time for this year’s midterms. Given what’s already transpired in the primaries, it’s likely that this year’s prominent Senate races (like the ones in Ohio or Pennsylvania) would have been different if states had been required to replace their plurality-winner system with some form of majority-winner rule. For example, if Pennsylvania were using either Alaska or Maine’s versions of Ranked Choice Voting, there wouldn’t be the current recount and fight between Oz and McCormick.

Even though Congress missed the chance to adopt this reform for this year’s elections, it would still be immensely beneficial if Congress adopted it now to take effect for 2024. In fact, watching this year’s races and imagining what might have been if Congress had acted in time, one might develop extra motivation to get this reform in place as soon as possible. The Congress that takes office in January is likely to be much more Trumpy than the current Congress, not only because there are likely to be more Republican members but the Republicans elected are likely to be much more Trumpy than the Republicans they replace. This shift is a product in part of the electoral preferences of the voters, but it is also a product of the system that translates those preferences into officeholders. Ask all Ohio voters, not just Ohio’s GOP primary voters, whether they would prefer J.D. Vance or Matt Dolan as their next Senator. The answer is likely to differ from who Ohio’s next Senator will be, and that’s a function of the system rather than the electorate’s actual preferences.

The Congress that will count the electoral votes on January 6, 2025 will be elected in 2024 (along with the two-thirds of the Senate holding over). If we want still to maximize the chance of that Congress abiding by the law in counting the electoral votes, rather than attempting to subvert the outcome for the sake of partisanship, then we ought to consider a majority-winner requirement as a way to enact a Congress more likely to be law-abiding than a Congress that continues to be enacted under the current plurality-winner system.

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“The Doom Spiral of Pernicious Polarization”

Yasha Mounk has a new piece in The Atlantic that highlights a study by the Carnegie Endowment led by Jennifer McCoy. Here’s a key passage of Mounk’s piece towards the end:

One approach that could alleviate polarization in the U.S. is institutional reform. Right now, many congressional districts are gerrymandered, shielding incumbents from competitive primaries while making them hostage to the extremist portion of their base. Some states have attenuated this problem by taking districting out of party control. But other measures, such as adopting the single transferable vote or creating multimember districts, could also shift political incentives away from polarization.”

Continue reading “The Doom Spiral of Pernicious Polarization”
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Some good news from Georgia–and a caveat

The Washington Post reports “after three weeks of early voting ahead of Tuesday’s primary, record-breaking turnout is undercutting predictions that the Georgia Election Integrity Act of 2021 would lead to a falloff in voting.” The story, which has lots of details, continues: “By Friday, the final day of early in-person voting, more than 700,000 Georgians had cast ballots — three times the number in 2018, and higher even than in 2020, a presidential year.”

I hope this news will help focus the electoral reform agenda for the remainder of this year on issues other than whether voters will be able to cast a ballot. First, given the prevalence of election denialists running for office this year who brazenly proclaim they will certify vote tallies only for candidates of their own party (or, to be fair, convey messages essentially to that effect if not in those exact words), it’s essential to bolster the rules and procedures for counting ballots accurately and certifying election results based on those accurate counts. Second, given the structural flaws in the electoral system that fail to aggregate voter preferences into electoral outcomes that reflect the will of the electorate overall–think both of gerrymandering and the flaws of primary elections so evidently on display right now–it’s not enough to accurately count all the ballots that voters exercised their opportunity to cast. For example, according to 538’s redistricting map, only 34 House seats will be highly competitive, a loss of seven such seats during this redistricting cycle.

In Georgia, according to 538, only one House seat is highly competitive, a reduction of one since the previous map. This kind of thing, I believe, is what should trouble us, especially in a highly competitive state like Georgia where statewide races can go either way, as we’ve seen in recent years. Thus, while we should definitely cheer the good news out of Georgia that turnout is way up, showing that voters can cast their ballots, we should make sure that the electoral system as a whole is making those ballots meaningful, by translating the electoral preferences those ballots express into self-government according to the will of the electorate as a whole.

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“How our system of primary elections could destroy democracy”

I’ve written this column for the Washington Post. Building upon ELB posts I’ve written recently on this topic, it argues in part:

Duverger’s law does not work in party primaries. Political science has not settled on why; one theory is that competition in primaries is not stable enough for strategic dynamics to exert sufficient force. Whatever the reason, it is evident that using the plurality-winner rule for party primaries does not yield two-candidate competitions. Instead, it delivers the kind of irrational outcomes we are witnessing this year, where a political party’s nomination goes to the candidate who lost two-thirds, or more, of the party’s votes.

The harm this irrationality causes is not confined to the party; it affects the public as a whole. Pennsylvania offers an illustration: If Oz ekes out a primary win with 31 percent of the vote, he might go on to win the general election. But doing so wouldn’t vindicate him as the most preferred candidate. November’s voters might have preferred McCormick even more. But they will never get a chance to express this preference, assuming McCormick is knocked out in a primary that fractures among multiple candidates with none receiving even a third of the total.

… Self-government can tolerate aberrational outcomes if the opportunity for self-correction in future elections is preserved. But when a political faction threatens to repudiate future elections upon attaining power, it is essential that the existing electoral system not award victories to this faction’s candidates who aren’t genuinely the majority’s choice.

Thus, add this to the list of electoral reforms having utmost urgency: eliminate plurality-winner primaries — which either state legislatures or Congress can do. Otherwise, we may lose our democracy not because we made that choice, but because an irrational and anti-majoritarian system produced that result.

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Two first thoughts on PA’s GOP Senate primary

At 6am ET, Oz leads McCormick by 2672 votes, as reported by both the New York Times and the Washington Post. The tightness of the race at this hour prompts these observations:

First, this preliminary tally is yet another example already from this year’s primaries proving the utter irrationality of using the plurality-winner rule in primary elections. However this too-close-to-call race ends, it will be will be with less than one-third of the total votes cast. Both Oz and McCormick have about 31%, with approximately 95% of all votes counted. Neither one can claim to be the Pennsylvania Republican Party’s choice for its Senate nominee in any meaningful sense.

Whichever candidate ultimately wins, and without considering how messy or not the rest of the counting process may be, this kind of result–with the two leading candidates splitting less than a third of the vote and not using any method to identify a majority preference between the two–makes a mockery of the two-party system. One party’s candidate at least will be the clear majority choice of that party’s voters: Fetterman won the Democratic primary with 59%. The other party’s candidate will at best represent one faction within a highly fractured coalition that has split at least three ways, with no demonstration of being the candidate who most represents the preference of the party or its voters as a whole. Yet this factional primary winner could prevail in November, even though the general election voters (like a majority of the party’s own voters) would have preferred one of the other primary candidates. Indeed, if Oz does end up beating McCormick, and then Oz were to beat Fetterman in November, it’s hard not to think that Pennsylvania’s general election voters as a whole would have preferred the chance to choose McCormick over Fetterman, instead of Oz over Fetterman.

During the last couple of weeks, as we’ve watched this same sort of irrationality occur in Ohio and Nebraska, I’ve been asking political scientists why Duverger’s Law doesn’t hold up in primaries. As many readers of the Election Law Blog know, Durverger’s Law is the theoretical proposition that a plurality-winner rule will tend to produce two-candidate competition, as coalitions will need to form in an effort to win the median vote. Durverger’s Law is why when the plurality-winner rule is used in general elections, the result tends to be a two-party system as we have historically had in the United States. Since the mathematics and strategic incentives of the plurality-winner rule are the same in primaries as in general elections, one would think that primary elections also would need to come down to competitions between just two candidates, each representing coalitions within the party. Yet that is clearly not what we are observing this year. While I’d like to see more research on this specific topic, the preliminary answer I’m getting from the political scientists I ask is that one can’t expect Duverger’s Law to hold very well in primaries because intra-party electoral competition is not stable enough, in comparison to general elections, for the strategic incentives of the plurality-winner rule to control. But regardless of the reason that Duverger’s Law does not work for primaries, the simple fact that it doesn’t–and therefore one should routinely expect the kind of highly fractured plurality-winner results we are seeing this year–is reason enough to believe that it’s imperative to jettison the plurality-winner rule for primaries.

Simply put, if we want elections to have any semblance of being a rational choice, so that self-government makes sense, we must replace plurality-winner primaries with some sort of majority-choice system, so that it is at all reasonable to say that the winning candidate actually represents the will of the electorate.

Second, let’s hope that the closeness of this Oz-McCormick race can help to dispel some of the Big Lie hysteria that’s developed since 2020. Because this is an intra-party race, it can’t be the case that the Democrats are “stealing” the election in the vote-counting process. Let’s see the ballot-counting and vote-verification processes proceed with maximum transparency, to reach an evidence-based conclusion pursuant to the rule of law as to which candidate received the most valid votes. If there are any errors uncovered, they should be corrected according to the previously established rule-of-law procedures, and at the end of the process, the losing candidate should graciously concede defeat. Then, however it turns out, let’s hope that this rule-of-law process can serve as a model for handling any similarly close elections that might occur this November or in 2024.

It is urgent to increase trust in election outcomes. If Pennsylvania can handle this close race properly, it can be an example of how to increase that trust. If the opposite occurs, we are truly in trouble heading into November and then the next presidential election.

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Eliminating plurality-winner primaries?

Following upon on my previous post A Rational Two-Party System?, which was prompted by a N.Y. Times story on one of Ohio’s GOP primaries last week, this post is prompted by a N.Y. Times account of Nebraska’s upcoming GOP gubernatorial primary.

It’s another three-way race that is likely to have a plurality, rather than majority, winner: “Polling in the final days before Tuesday’s vote shows the race is a three-way dead heat.”

This raises the question whether it would be constitutionally permissible, consistent with the First Amendment doctrine reflected in California Democratic Party v. Jones, for a state to require a political party to use a majority-winner rather than plurality-winner procedure to have its winning candidate listed on the state’s general election ballot as the party’s nominee.

I would think that this kind of state law should be considered constitutionally principle under the First Amendment as long as the rule is sufficiently flexible and, most importantly, is tied to the requirements for appearing on the general-election ballot rather than the requirements for being the political party’s officially endorsed choice for the elective office in question. In other words, the state would be saying to the political party: “you can use whatever procedures you want to endorse a candidate, but for purposes of having the party’s endorsement appear on the general election ballot in November, here’s the options you have.”

For purpose of giving a political party maximum flexibility for how it could comply with a majority-winner requirement in order for a candidate to appear on the general-election ballot as the party’s officially endorsed nominee, I can imagine offering the party three options: (1) use ranked-choice voting, which the state makes available as part of the state-operated primary election; (2) use a conventional second-round runoff election, which the state is also willing to make available at the state’s expense; or (3) bypass the state’s run primary election as the method of determining which candidate wins the party’s nomination, as long as the party’s own procedure requires the winning candidate to receive a majority of votes from whatever body, like the state party’s central committee or nominating convention, is authorized to make this choice.

I would imagine a political party would want to exercise this kind of majority-based control over which candidate gets its coveted official endorsement as the party’s nominee, rather than permitting its nominee to be selected in a fractured plurality-based determination of the kind we are seeing this year (in Ohio, Nebraska, and likely elsewhere as well). But even if a political party did not willingly embrace this kind of majority-winner requirement, I would think it is (or at least should be) consistent with the interpretation of the First Amendment as reflected in California Democratic Party v. Jones that compliance with this kind of multi-option majority-winner requirement is what the state requires solely for purpose of a party’s nomination of a candidate appearing next to the candidate’s name on the state’s general-election ballot.

If others have different views on this First Amendment issue in light of California Democratic Party v. Jones and related precedents, I would welcome hearing those views.

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A Rational Two-Party System?

It is often argued that the prevailing system of partisan primaries followed by a plurality-winner general election is a sensible way for an electorate to make a clear policy choice between one left-of-center option and one right-of-center alternative.

But one of Ohio’s primaries yesterday offers a clear counterexample to that argument. Featured in a New York Times story, the House seat at issue is Ohio’s Ninth Congressional District. The incumbent is a Democrat, Marcy Kaptur, who was unopposed in her party’s primary. In November she will face J.R. Majewski, who won the Republican primary with about 36% of the vote.

Majewski, according to the N.Y. Times description, is arguably even more extreme than Majorie Taylor Greene. If he wins, he would be one more vote for the “Big Lie” caucus. Looking ahead to January 6, 2025, if he were an incumbent House member then, would he vote to uphold valid electoral votes cast for Donald Trump’s Democratic opponent if Trump was asking his supporters in the House to nullify those electoral votes? Perhaps relevant to answering that question is this passage from the Times piece:

‘…he first gained attention in Ohio by turning his lawn into a 19,000-square-foot “Trump 2020” sign.

During his campaign, he ran one ad showing him carrying an assault-style rifle in which he says, “I’m willing to do whatever it takes to return this country back to its former glory,” adding, “If I’ve got to kick down doors, well, that’s just what patriots do.”

Of course, if he’s the candidate the voters of his district most want, then he’s the one who should be sent to the House to represent his district. But even if he wins the general election against Kaptur in November, is he really the candidate that the electorate of his district as a whole most want?

As the N.Y. Times story also observes, in achieving his 36% plurality win in the primary yesterday, Majewski ran ahead of “two lower-key Republicans for the nomination.” Craig Riedel came in second with about 31% of the vote. Theresa Gavarone was third with 29%.

We can’t be sure that Majewski would have won a runoff, or an “instant runoff” using ranked-choice voting, against Riedel. Thus, even though he’s now officially the nominee of the Republican party, we can’t really be sure he is actually the most preferred choice of the district’s GOP voters among the alternatives. His plurality win is not the same thing as being the candidate whom most GOP voters in the district would most prefer.

Indeed, it’s possible that Majewski would have been the “Condorcet loser” if ranked-choice ballots had been used in the GOP primary. A “Condorcet loser” is the single candidate in a multi-candidate field who would lose every one-on-one comparison with every other candidate in the race. In other words, when compared to each other candidate, a majority of voters prefer the Condorcet loser’s opponent. So, to put this point in the context of yesterday’s primary, it’s easily conceivable that a majority of yesterday’s GOP voters would have preferred Riedel to Majewski, and also a majority of yesterday’s GOP voters would have preferred Gavarone to Majewksi. And yet Majewski was declared the GOP nominee with his plurality.

Nor do we know that November voters would prefer Majewski to Riedel or Gavarone. Just because Majewski beats Kaptur, if that’s what happens in November, it doesn’t mean that Riedel or Gavarone wouldn’t have won by even higher margins. It just means that in November the district voters really don’t want a Democrat (as might happen if Democrats have a really bad midterm this year).

So the winner in the end could be a candidate who is the Condorcet loser of his own party’s primary and also the least preferred Republican among the district’s general election voters.

Is this a rational two-party system?

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A Bit of Ohio-Based Musing

With about three-quarters of the vote from the Republican primary for Ohio’s U.S. Senate seat in (a little before 10pm ET), it looks like the top three vote-getters will be Vance, Mandel, and Dolan. If one adds to these three Ryan, the winner of the Democratic primary, those are the top 4 vote-getters from both primaries combined.

Therefore, it’s interesting to speculate what the general election in this race would have looked like if Ohio used Alaska’s new “top 4” system that picks the winner in November using a ranked-choice ballot. Dolan would be the first of the four knocked out using the “instant runoff” process commonly associated with ranked-choice voting, unless of course he could improve his position among these four in terms of the first-choice preferences of the November voters. But is also worth speculating what the result would be if “round-robin voting” rather than “instant runoff voting” were used to evaluate the ranked-choice ballots with these four candidates. Dolan might do much better in the one-on-one comparisons between each pair of candidates that the “round-robin voting” analysis applies to the ranked-choice ballots.

While we are at it, which Republican candidate would have won today’s primary if ranked-choice ballots had been used to pick the GOP nominee? And would the answer be the same whether the “instant runoff” or “round-robin” method were used just for these GOP ranked-choice ballots? The only thing that is clear, at least to me, is that Vance’s plurality win (at less than a third of the total, as it currently stands) wouldn’t necessarily translate into being the nominee if either form of ranked-choice voting had been used.

All this is to say that a state’s electoral method is highly significant to determining what happens in an election, even holding other factors constant (like the identity of the candidate, the amount of money they spend on their campaigns, the endorsements they receive, voter turnout, and so forth). I would venture to say that I don’t think the public or the media sufficiently appreciates just how significant this structural element of the electoral process is relative to other factors. More than the number of days that Ohio has for early voting, for example, how Ohio structures its primaries (partisan or nonpartisan), and whether Ohio uses a ranked-choice ballot or instead determines winners based on which candidate receives the plurality of votes using a regular ballot–these structural features of the electoral system will determine who ends up becoming the next Senator from the state.

This kind of speculation would benefit from being backed up by some empirical data. I’m hoping that by the end of this primary season, we will have some evidence that will enable us to make more informed judgments about the effects that different electoral systems would have on which candidates get elected.

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The Conservative Case for Proportional Representation

In the wake of New York’s redistricting decision this week, Washington Post columnist Henry Olsen urges Congress to reach a bipartisan agreement to end gerrymandering and offers three ways to do that. All three deserve attention, and I suspect that for something to pass Congress it would need to embrace a federalism-based approach by which states could choose from a menu of options (like Olsen’s three anti-gerrymandering alternatives) to achieve a congressionally-determined objective.

But here I want to highlight the third of Olsen’s three proposals: invoking Switzerland as “model” for how to “elect House members by proportional representation.” I can’t recall a comparably prominent conservative voice promoting so forcefully the idea of using PR in the US. Am I forgetting something similar?

As Olsen indicates, Congress could jump-start state-based experimentation with PR for congressional seats simply by repealing its statutory (not constitutionally required) single-member district requirement. Given Senator Mitch McConnnell’s aversion to imposing new congressional mandates on states even for the conduct of congressional elections, pursuit of proportional representation could be advanced by doing the opposite: removing a congressional constraint that already exists. McConnell ought to be in favor of giving states the option of using PR for their congressional delegation, if that’s what states prefer. I can imagine Ohio, after its current redistricting debacle, becoming the first state to explore this way to avoid being a national embarrassment again.

Thus, is there a deal to be had among congressional Republicans and Democrats to repeal the single-seat district requirement and give states the freedom to experiment with PR? I would expect a deal like this might be more attractive to Democrats when they consider what the Supreme Court might decide in the pending Alabama redistricting case. If the Court adopts the argument advanced by Alabama in its recently filed merits brief, it’s not going to be constitutionally permissible for Congress to enact a revised Voting Rights Act that would enable single-member districts to be drawn to enhance the relative voting power for racial minority groups (comparable to what minority voting power would exist in districts drawn without consideration of race). The only constitutionally permissible way to pursue proportional political power for minority voters would be through a race-neutral across-the-board system of proportional representation, in which minority voters would be able to elect candidates and parties of their choice in proportion to their numbers in the state’s whole electorate.

Repealing the single-member district requirement would require some measure to prevent a state, whether Alabama or any other, from simply electing all its congressional seats in at-large first-past-the-post statewide elections, which obviously would not be proportional representation and would cause severe minority vote dilution. But a new Act of Congress that permitted states to abandon single-member districts if they adopted a Swiss-style, or some other, form of statewide proportional representation for their congressional delegation? That might be the best way to protect minority voting power, as well as avoiding gerrymandering, given the current Supreme Court and the need for bipartisan compromise for anything to pass Congress.

In light of Olsen’s column, is pursuing this kind of bipartisan deal worth further exploration?

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One point about Judge Luttig’s new CNN piece

Nothing in recent months has altered my assessment of the risk of an attempt to subvert the outcome of the 2024 presidential election, and therefore I applaud Judge Luttig for vociferously sounding the alarm in his new CNN essay. But there is one aspect of his analysis that I think is incorrect, and I believe correcting this mistake is important for understanding how Congress should amend the Electoral Count Act to prevent the kind of electoral subversion that he and I (among many others) are striving to avoid.

Judge Luttig spends much of his new essay discussing the so-called “independent state legislature” doctrine, which finds expression in Chief Justice Rehnquist’s concurrence in Bush v. Gore (among other places). This blog post is not the place to discuss the merits or flaws, or even the potential scope, of the doctrine. Rather, the key point here is to recognize that, even if the doctrine is robustly embraced in the form that Chief Justice Rehnquist articulated in his Bush v. Gore concurrence, it would not empower state legislatures to engage in the kind of post-hoc electoral subversion that Judge Luttig envisions.

Quite apart from the contours of the “independent state legislature” doctrine (which constrains the power of state courts to deviate from what state legislatures have enacted), Article II of the federal Constitution undoubtedly grants state legislatures the power to determine the “manner” of appointing the state’s electors. But also quite apart from the contours of the “independent state legislature” doctrine, Article II also empowers Congress to set the “time” for “choosing” the electors. Once a state’s electors have been chosen according to the “manner” previously established by the state legislature (at the “time” specified by Congress), the state legislature cannot decide to adopt a new “manner” of appointing the state’s electors for that year’s presidential election.

Thus, a properly revised Electoral Count Act can insist on counting the electoral votes cast by electors appointed pursuant to the manner adopted by the state legislature in advance of the time specified by Congress (what we commonly call “Election Day” in November). Any subsequent attempt by a state legislature to undo the appointment of electors pursuant to that previously specified manner is null and void. In this regard, as part of revising the Electoral Count Act, it is important to clarify 3 USC 2 to make clear, at the very least, that a state has not “failed” to choose electors, thus authorizing a state legislature to determine a new manner of appointing the state’s electors, just because the state legislature disagrees with the outcome of the process that the legislature previously established for casting and counting ballots in the popular vote that the legislature itself decided was to be the state’s method of appointment for that year’s election. As long as the state legislature’s own established procedures for counting the popular vote–including any recounts or judicial procedures regarding the counting of ballots that the legislature itself enacted–are being utilized, then there is no “failed” election that would justify the state legislature’s subsequent intervention.

The state legislature can change the manner of appointing the state’s electors for the next quadrennial presidential election, but once Election Day in November 2024 has passed, then the state’s electors already have been appointed for that year’s election pursuant to the legislature’s previously selected manner. Thus, no rival submission of electoral voters, purportedly cast by newly appointed electors pursuant to the state legislature’s desire to change the manner of appointment after the appointment already occurred, should be considered cognizable in the joint session of Congress held pursuant to the Twelfth Amendment to receive and count the electoral votes from the states. Only the electoral votes cast by electors appointed pursuant to the manner specified before Election Day in November should be considered cognizable in the Twelfth Amendment joint session.

Judge Luttig writes: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine.” This is incorrect for the reasons just explained. Even if the Supreme Court recognizes the authority of state legislatures to set the rules for appointing electors, and even if the Supreme Court says that the state legislature’s authority in this regard means that state courts cannot undo the choices that the state legislatures have made, that Supreme Court determination would not negate the key point that the state legislature’s authority in this regard is limited to before the electors are appointed. State legislatures do not, any more than state courts, have the power to alter the rules for appointing electors after the congressional designated “time” has expired.

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Will there be a “spoiler” in 2024?

Andrew Yang is the guest on the new must-listen episode of Sarah Longwell’s Focus Group podcast. They discuss the possibility of a significant third-party, or independent, candidate in the 2024 presidential race. Yang, who’s started his own Forward Party, essentially promises one–especially if the two major-party candidates are Biden and Trump again, although he doesn’t say he’ll necessarily be the candidate. He offers Mark Cuban as the example of a candidate who he thinks could compete effectively against both Biden and Trump.

Sarah Longwell expresses the concern that any third candidate would pull more votes from the Democratic nominee than from Trump, assuming that Trump is the GOP nominee. Fearing for the future of US democracy itself if Trump wins a second term, Longwell worries that any third candidacy (however well-intentioned) could end up devastating for the country by being the cause of Trump’s return to power. For what it’s worth, I share Longwell’s concern for the reasons she expresses.

Yang and Longwell also discuss the possibility of ranked-choice voting as a way to avoid the potential spoiler effect. Yang says he’s not willing to wait for ranked-choice voting to be in place in order for there to be a third-party candidate. While he’d prefer ranked-choice voting to come first, from his perspective disrupting the major-party duopoly (as he puts it) is necessary, even at the risk of creating a spoiler effect in 2024. At least, that’s how I heard him express his position on the podcast.

In any event, it’s time to dust off copies of Presidential Elections and Majority Rule, which discusses the importance of adopting ranked-choice voting on a state-by-state basis (like Maine and Alaska) as the method of appointing presidential electors, in order to guarantee that winner-take-all electoral votes are awarded to majority winners, thereby avoiding the potential “spoiler” effect of third-party or independent candidates.

Do we really want to be in the position where whether Trump wins or loses in 2024 depends on the idiosyncratic decision of an individual billionaire, like Mark Cuban, to enter the election as an alternative to both Trump and the Democratic nominee?

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The “primary” link between two seemingly different stories

Earlier this morning I blogged about the institutional structure that caused McCarthy and McConnell to cave in response to pressure from their Trump-supporting GOP base. Superficially, one might think that yesterday’s news about the federal court’s decision regarding Ohio’s redistricting mess might be unrelated. But I see a structural connection between the two, and it’s why the “primary problem” (involving partisan primary elections determining who’s on the plurality-winner general election ballot) is indeed the primary problem (meaning, number-one reform priority) threatening U.S. democracy right now.

Last night, I tweeted a thread why I’m dubious about yesterday’s federal court order as a matter of Article III jurisdiction to enforce applicable Fourteenth Amendment requirements, and the corresponding entitlement of the Ohio Supreme Court (insofar as its own jurisdiction permits) to enforce state constitutional law with respect to a primary election for a non-federal office (seats in the state legislature). I won’t repeat the points in that tweet thread here. Instead, I want to highlight the more significant point (in my judgment) that Ohio’s redistricting mess wouldn’t exist if Ohio used Alaska’s new electoral system, or some variation of it, to elect its statewide officers, like Governor or Secretary of State.

As an Ohioan, I’ve followed the careers of Governor Mike DeWine and Secretary of State Frank LaRose. They are not Trump-type Republicans. Recall DeWine’s initial response to Covid, or how LaRose handled his role in administering elections pre-2020. But theirs are two of the key votes in the state’s redistricting process that has caused the mess the state is in. Why, I ask myself, would these two non-Trump Republicans be so recalcitrant in refusing to obey the Ohio Supreme Court’s repeated orders to draw a map in compliance with the state’s constitution (as interpreted by a majority of that court, including Republican Chief Justice Maureen O’Connor)? The only answer I can think of: the threat of being “primaried” from the Trumpian right. Both DeWine and LaRose are up for reelection, and they face Trumpian challenges in the May 3 GOP primary. While they are both likely to survive, they both face the institutional pressure from the existing electoral system to cater to the Trumpian base of the GOP. No point enraging the base, or the members of the state legislature’s GOP caucus (which is even more beholden to the base because of previous gerrymandering combined with the electoral system of primary elections followed by a plurality-winner general election). Thus, in being so recalcitrant on redistricting, DeWine and LaRose act in a way forced upon them by the institutional pressure they face but is contrary to what otherwise they’d be inclined to do.

Sound familiar? It’s the same dynamic at work in this morning’s story about McCarthy and McConnell needing to back off of their initial instinct regarding Trump after the January 6 insurrection. And it’s the same institutional culprit at work: partisan primaries followed by a plurality-winner general election. If Ohio had Alaska’s new system right now, DeWine and LaRose would be running for reelection in an entirely different institutional environment. I think there’s strong reason to believe their behavior in the redistricting process would be entirely different as well.

Gerrymandering is bad. We need to curtail it. But Ohio’s experience shows that to redress gerrymandering, like so much else that currently ails the U.S. electoral system right now, reform needs to reach the root of the problem. We need to tackle the pathological behavior of politicians in leadership positions (McCarthy, McConnell, DeWine, LaRose, and many others in D.C. and nationwide), behavior that is contrary to their own best instincts but caused by the “primary problem” itself.

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McCarthy & McConnell: The Relevance of Institutions

This morning’s blockbuster N.Y. Times story by Alex Burns and Jonathan Martin, based on their forthcoming book, raises the question whether Kevin McCarthy and Mitch McConnell would have felt able to act on their immediate instincts after January 6–to end Trump’s political career–if the electoral institutions in which they (and party competition) operated were different. Simply put, if Alaska’s new system were nationwide, what would have been the different electoral incentives that GOP members of Congress operated in, including their relationship to their “base” voters? (See especially the quote from Ohio’s Bill Johnson in the story, that the “base” would “go ballistic” if GOP leadership crossed Trump.) What would be the electoral power of these “base” voters in an Alaska-style system, compared to the electoral power of the base in the current system (in which a plurality-winner general election follows a traditional partisan primary)?

In considering how to react to this news that McCarthy and McConnell backed off their initial instincts, it’s worth keeping in mind the institutional context in which they were operating. Thus, if the goal is to protect the United States from a dangerous politician like Trump, which McCarthy and McConnell initially wanted to do (according to this story), then the lesson here is that there needs to be the kind of structural institutional reform that enables political leaders like McCarthy and McConnell to act on those instincts, rather than to succumb to the countervailing forces of “base” pressure (which results from the existing institutional arrangement).

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