I was the guest and enjoyed a productive conversation on a Lawyer-2-Lawyer podcast.

I was honored to be a Miegunyah Distinguished Visiting Fellow at the University of Melbourne this summer (well, winter in Australia). The fellowship was a wonderful opportunity to get to know members of the university’s superb faculty, especially at its law school, and to discuss with them and their students matters of mutual interest on the nature and sustenance of democracy. The main event associated with the fellowship was delivery of a public lecture. The video of the lecture is now available. 

The specific focus of the lecture concerns the work of Edward Nanson, a professor at the University of Melbourne, who was the one to rediscover Condorcet’s analysis of elections, which had been lost to history after Condorcet’s death during the Reign of Terror in the French Revolution. Nanson also significantly improved upon Condorcet’s work, and the main point of the lecture was to explain how America could benefit from Nanson’s ideas. As Australians themselves no longer know of Nanson’s important contributions, the lecture’s audience at the University of Melbourne appreciated learning about one of their own. The rest of us can, and should, appreciate what Nanson did to advance the modern understanding of electoral democracy and majority rule.

(This notice of the lecture originally appeared on Common Ground Democracy.)

That’s the title of a talk I’ve delivered while at the University of Melbourne on a Miegunyah Distinguished Visiting Fellowship. It’s my effort to explain succinctly how the United States got to the current dire situation and to point the way out of it.

In light of Rick P’s post about David Shor’s current lament about the failure of Congress to redress gerrymandering back when Democrats were consumed by their efforts to enact the massive S1/HR1 reforms, I recall this column I wrote for The Washington Post on February 4, 2021, less than one month after the insurrection on January 6: Congress should make a deal to end partisan gerrymandering.

The main point of the column was that Democrats in Congress should trade away issues like voter ID, vote-by-mail, and other wish-list reforms relating to election administration in order to secure the much more important structural change of eliminating partisan gerrymandering.

The column noted, as Shor did the following year, that altering election administration rules wouldn’t make a significant difference in the capacity of the electoral system to translate voter preferences accurately into electoral results, whereas ending partisan gerrymandering would. (“Easy vote-by-mail isn’t a must for Democrats; they just need sufficient opportunities to cast a ballot — and reasonably drawn districts — for good candidates to have a chance.,” the column said.) To make this point, the column cited the then-recent Georgia Senate runoffs: “The lesson of the Georgia Senate runoffs is that Democrats don’t need their preferred set of voting rules in order to win. No voting rights advocate thinks Georgia’s electoral system, run by Republican Secretary of State Brad Raffensperger, is ideal. But it was good enough. It didn’t cause disenfranchisement that prevented voters from getting what they wanted.”

On the other hand, looking specifically at Texas, the column observed: “For reasons of self-interest alone, Democrats should see ending gerrymanders as Job One.”

At the time, I thought Democrats should strive to find 10 Republican Senators–just 3 more than voted to convict Trump in his January 6 impeachment trial–to agree on the necessity to end partisan gerrymandering, and since Senators don’t benefit from gerrymandering themselves, I thought the strategy should be to negotiate with them solely to achieve gerrymandering reform, without weighing it down with all the other provisions in S1/HR1 that were inevitably objectionable to all Republicans, including those willing to risk their political careers to cross Trump. The column ended this way: “Democrats should stay focused on what’s most important in electoral reform. Right now, that’s restoring sanity to redistricting.”

This was a theme I continued to stress in additional Washington Post columns in 2021. For example, on March 29, 2021, I repeated that Democrats should focus on the “anti-gerrymandering” provisions in S1/HR1 and jettison all provisions that were dealbreakers from a GOP perspective. The last sentence of that column: “Democrats are in danger of missing the moment, by going too big and too far.”

On May 27, 2021, I again stressed the need to focus on gerrymandering and wrote: “Senate Democrats are at risk of blowing their chance at meaningful electoral reform. Rather than ending up with nothing, because they spent too long trying to shoot the moon with S. 1, they should compromise with 10 reasonable Republicans on a set of simple measures to ensure that congressional elections genuinely implement voter preferences.”

I won’t belabor the point by quoting the additional columns along the same lines as the Democrats continued their efforts to enact their omnibus bill over unified Republican opposition.

As the effort to protect American democracy from the forces of authoritarianism continues, and indeed grows more urgent, I continue to believe that the potential window of opportunity of 2021-2022 was wasted by a misguided approach on the part of congressional Democrats.

Rick H. has recently lamented that more media attention is being paid to the current fight over mid-decade redistricting than over the Supreme Court’s potential ruling in the Louisiana Voting Rights Act case. Both are huge developments in the field of election law, and I’d hate to have to prioritize. Instead, I will just observe quickly that the system of “self-districting” that I proposed a few years ago would solve both problems. First, it would make partisan gerrymandering by government officials obsolete, thereby eliminating the concern over what is happening in Texas right now. Second, it would empower minority voters to form districts of their own choosing, thereby avoiding the necessity of a VRA remedy for minority vote dilution. Moreover, an adverse decision in the Louisiana case would not be an obstacle to the adoption of a self-districting system, as it would not raise any concerns about the government drawing district lines on the basis of race. Instead, the districting decisions would be the free choices of individual citizens on the basis of whatever values they choose.

Here’s the first of a periodic column I will be doing for SCOTUSblog. It comes with this introductory description:

The biggest questions in constitutional law concern the power of the Supreme Court to decide questions differently from what elected officials want. Sometimes the Supreme Court insists upon having the last word in the name of enforcing constitutional commands concerning the requirements of justice or even democracy itself. But the current court is hesitant to interfere to protect democracy, and the events taking place right now in Texas raise the pressing question of whether there is another way for the court to protect democracy without insisting upon having the last word.

ELB readers may be interested that, as stated in this first piece, a general theme of the column will be the Court’s abandonment of the democracy-enhancing theory of judicial review most famously articulated by John Hart Ely and what if anything can be done to preserve or revitalize that role for the Court under current conditions. Specifically, in light of the current race to the bottom with respect to mid-decade redistricting, this piece expands upon the point made in a previous ELB post that consideration should be given to the idea of a “dormant” Elections Clause analogous to the “dormant” Commerce Clause, so that the Supreme Court has the option of a less interventionist democracy-enhancing role than what Ely articulated.

Since Rucho, it’s been generally assumed that attempting to litigate against partisan gerrymanders in federal court is an utter nonstarter. I think this is largely correct, but it light of all the recent discussion over the efforts to make the Texas map even more tilted towards Republicans, it is worth speculating a bit whether there are any plausible arguments remaining after Rucho purported to slam the federal courthouse door shut.

One idea that I’ve written about in at least a couple of pre-Ruch law review articles (The Gerrymander and the Constitution and Constitutional Preservation and Judicial Review of Partisan Gerrymanders), and which was not considered–and thus not rejected–in Rucho, is the idea of a “dormant” Elections Clause analogous to the “dormant” Commerce Clause. The Election Clause of Article I, section 4, lends itself to this kind of “dormant” jurisprudence insofar as it explicitly gives Congress the power to override state laws regulating the procedures of congressional elections. Congress thus needs to retain the ultimate authority over these procedures, just like Congress needs to retain ultimate regulatory power over interstate commerce. But the theory of the “dormant” Commerce Clause is that the federal judiciary can aid Congress in the exercise of its ultimate constitutional authority if it sees state laws that appear fundamentally at odds with the purpose of the constitutional clause. If the judiciary errs in this respect, Congress can correct that error.

This same theory could, and should, apply to the Elections Clause. If a state legislature regulates congressional elections that appear fundamentally at odds with the basic purpose of having the federal House of Representatives chosen “by the people of the several States,” then the federal judiciary could nullify that state law subject to ultimate oversight by Congress itself. The advantage of this “dormant” Election Clause approach, in contrast to the constitutional claims argued in Rucho, is that it does not give the judiciary the last word on congressional redistricting.

While I’m not holding my breath waiting for the Roberts Court to embrace this “dormant” Election Clause theory, it’s at least worth noting that it would avoid what appears to be Chief Justice Roberts’s main concern in his opinion for the Court in Rucho, namely a constitutional doctrine that would put the federal courts in charge of congressional redistricting. Maybe there is at least some small chance that five justices on the current Court would see the whole Madisonian system so out-of-kilter currently, that they would attempt to restore so equilibrium by exercising a “dormant” Election Clause jurisprudence over extreme partisan gerrymanders, subject to the supervision of Congress to approve whatever congressional maps it wishes.

A new Common Ground Democracy post with this subtitle: “The upcoming U.S. Senate election in Texas perfectly illustrates the importance of this voting reform.” The post itself begins:

“The University of Chicago’s Center for Effective Government, as part of its “Democratic Reform Primer Series,” has published an introductory explanation of Condorcet Voting co-authored by Eric Maskin and me. I’m honored to continue my collaboration with Eric with this piece and to have it included in this valuable collection of papers.

To understand why publication of this explainer on Condorcet Voting is especially timely right now, look no further than the looming U.S. Senate race in Texas.”

The post concludes:

“I will also be discussing the history of Condorcet Voting and its continuing relevance in a lecture at the University of Melbourne next week. When a video of that lecture is available, I will post it.”

We will need to wait to see the cast vote records from the primary (they were available last time, so presumably—and hopefully—they will be again this time), but it’s conceivable that Mamdani was not the Condorcet Winner. In an election that was as polarized as this one appeared to be from media reports of the campaign—with Cuomo and Mamdani at opposite ends of the divide, and with Mamdani not clearing 50% of the first-choice votes, what matters for a Condorcet-based analysis is what were the lower-ranked choices of Cuomo supporters. If enough of them they ranked Brad Lander and/or Adrienne Adams higher than Mamdani, it’s possible that either Lander or Adams (or both) would beat Mamdani head-to-head (which is what’s relevant for a Condorcet analysis). Likewise, if enough Mamdani supporters ranked Lander and/or Adams higher than Cuomo, Lander and Adams might emerge as the Condorcet Winner based on an analysis of all the head-to-head matchups from the ranked-choice ballots. 

As the Democratic Party—and the nation more broadly—endeavors to determine what should be the major lessons from this primary election, it’s possible that one lesson might end up being that the will of the electorate (and thus in this case the will of the political party in selecting its nominee for the general election) would have been better served by using a Condorcet-based tabulation of the ranked-choice ballots, rather than the “instant runoff” method that tends to elect one of the two most polarizing candidates in an election.

For more on a comparison between the “instant runoff” and Condorcet versions of RCV in the context of polarization, see the law review article I co-authored with Nate Atkinson and Scott Ganz and chapter two of the book I co-edited with Larry Diamond and Rick Pildes.

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.