Russell Berman digs in to the reform measures on the 2024 ballot, in The Atlantic.
Category Archives: primaries
“Ranked-choice voting continues to work in Alaska. It would everywhere else, too.”
Washington Post’s Editorial Board comes out in favor of RCV, arguing it is working well in both Alaska and Maine to select more moderate candidates that are more likely to reflect the preferences of electoral majorities, and that it is not confusing:
“Ranked-choice voting continues to work in Alaska. It would everywhere else, too.”Apart from accusations that it favors Democrats, which haven’t been borne out, the biggest knock on RCV is that it’s too confusing for people to rank candidates. But studies show that virtually all ballots cast in RCV elections are valid, with error rates similar to those of traditional elections. Usually, after trying it once, people become more comfortable with ranking candidates when they realize that they don’t need to vote strategically, worrying about throwing away their vote by supporting as their first choice someone who is unlikely to win.”
I do wonder how well RCV would transfer to larger, less rural states. Alaska and Maine are certainly not representative, and neither is subject to the same national forces as, say, Pennsylvania.
“Three California Minor Parties File Federal Lawsuit Against Top-Two System”
Ballot Access News: This week, three California minor parties filed a federal lawsuit challenging the constitutionality of the California top-two system. The parties are Peace & Freedom, Green, and Libertarian. Here is the 12-page Complaint in Peace & Freedom Party v Weber, n.d., 4:24cv-08308.
The case challenges the California system as an impediment to ballot access for minor parties, thereby sidestepping Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) and the decisions of lower courts upholding similar systems in Washington and Alaska:
“In its almost fourteen years of existence, the California top-two system has barred all minor party members from appearing on the general election ballot, except in races in which only one of the two major parties ran someone in that race. There is only one exception to that statement; in 2024 an American Independent Party candidate for Assembly qualified for the general election ballot, even though there had been candidates from both major parties in the race.”
“A Setback for Election Reformers?”
Walter Olson at Cato has the following reflection on the recent round of election reform in which he cautions commentators to distinguish “ambitious” reforms that “abolish[] party primaries and then employ[] RCV in a general election” (like in Alaska) from more moderate efforts to introduce rank-choice voting into the existing party primary system.
“On the whole, RCV finds more of a footing in places where politics is dominated by one party—large cities are the model case—and where reformers can pitch it as a way to make primaries work better.”
“Ranked choice voting and open primaries retained in Alaska after final ballot count”
An update on the Alaska ballot initiative from the Anchorage Daily News. The total ballot count in the end was 340,510. The repeal effort appears to have failed by 664 votes.
“A coalition of left-leaning and moderate legislators in the Alaska House has announced its plans to form a majority in the coming legislative session.
Members of the coalition — which is slated to include mostly Democrats and independents alongside two GOP lawmakers — have indicated they hope that additional Republicans will join. But those Republicans have not committed to joining such a coalition as they await the fate of Alaska’s open primary system.”
“Ranked choice voting repeal now trailing by 45 votes ahead of final Alaska ballot count and tabulation Wednesday”
From the Anchorage Daily News. Approximately 5,800 ballots remain to be counted.
“Effort to repeal ranked choice voting and open primaries in Alaska on track to narrowly fail after latest ballot count”
From Anchorage Daily News:
“Results posted Monday showed 50.03% of voters opposed the measure repealing ranked choice voting, while 49.97% were in favor of the repeal. Just 192 votes separated the two camps, with more ballots set to be counted.”
A final count is expected on November 20, the final day for accepting absentee ballots from overseas.
“Ranked Choice Voting: What Happened & What’s Next”
Michael Parsons (FairVote, Senior Legal Fellow) and Meredith Sumpter (FairVote CEO) offer reflections at Democracy Takes on what the results of the 2024 ballot initiatives tell us about the future of rank-choice voting as a reform. A peek here:
“In 2016, only two million Americans lived in the 10 cities using RCV. As of today, that number has grown to nearly 17 million Americans in over 50 cities, counties, and states. The number has grown because the reform works, giving voters greater say and incentivizing elected officials to get things done for their constituents.
On Election Day, the number grew yet again, but we also fell far short of what we had hoped . . . . As might be expected, some long-standing critics of RCV have seized on the state-level losses and are offering a typical post-election analysis: “Why the results prove I was right all along.”
But there’s a difference between hot takes and hard work. And it’s difficult to imagine any major election reform that would have sailed to victory this year. There were numerous election reforms on the ballot in addition to ranked choice voting – including independent redistricting commissions and open primaries. All have won statewide victories in recent years. This cycle, all of them failed at the statewide level.”
My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”
I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:
American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.
Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.
Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.
Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.
“Record number of open primary initiatives on the ballot”
Voters in as many as half a dozen states will decide this year whether to open primary elections to independent and crossover voters in what supporters say is the broadest-ever assault on the traditional partisan primary process.
Ballot initiatives to open partisan primaries to all voters have qualified for November’s election in Nevada, South Dakota, Idaho and the District of Columbia. A Maricopa County judge ruled on Friday that Arizona’s version qualified for the ballot. Supporters of open primaries are waiting for final determinations in Colorado and Montana, too….
Democratic primary for Arizona’s open 3d congressional district to go to automatic recount
“Former Phoenix City Council member Yassamin Ansari led former state lawmaker Raquel Terán by 42 votes, with 42,819 ballots counted — a margin of 0.1 percentage points. . . . Under Arizona law, a recount is triggered when the margin is .5 percentage points or less.”
Litigation Stalls Utah’s Republican Primary for 2nd Congressional District
“Results of a recount completed Monday in the Republican primary for Utah’s 2nd Congressional District showed incumbent U.S. Rep. Celeste Maloy still narrowly leads her opponent, who preemptively filed a lawsuit contesting the results.
The Associated Press is not calling the race until the resolution of a pending legal challenge from Colby Jenkins that asks judges to decide whether 1,171 additional ballots that were disqualified for late postmarking should be counted.”
More on the legal (and practical) issues around a presidential candidate’s withdrawal
Rick H. gets the heart of the issues right in his early post. I want to highlight some more wrinkles (but I put the odds of Biden stepping down much lower than 50%).
First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.” (Rick rightly notes, “That would be true even if Biden stayed in the race,” but this is not a politically likely option.)
Second, in the event of a vacancy in the ticket after the convention, the rules are a little different: “Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the
National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.”
Third, the DNC announced it would hold a “virtual roll call” before the convention. That was when there was some doubt about Ohio’s ability to amend its ballot access rules. But perhaps more interestingly, even though Ohio has amended its law, it appears the DNC might worry that other deadlines in other states might be a problem, or in states where a “provisional certification” previously was sufficient for a presumptive nominee that might be legally challenged in this election. Regardless, it’s not clear how this would work in the event of a contested convention, and the DNC might have to backtrack if that’s the case.
Fourth, “superdelegates” (or “automatic delegates”) are eligible only on the second ballot in the event no candidate has a pledged majority the first time around (IX.C.7.b). So the ground could shift from the first to the second ballot separate and apart from any jockeying after the first ballot and candidacies.
Fifth, and finally, recall that New Hampshire violated the DNC’s rules by going early with its primary. In eras of consensus (think to the 2008 Michigan and Florida fiasco, resolved only once Barack Obama secured a majority of the delegates and those states’ rule-breaking delegations could be seated), there is little dispute when some states violate party rules. But in a contested convention, the decision whether to seat a batch of rule-breaking delegates will be much more fraught. (UPDATE: I see the DNC voted to restore New Hampshire’s delegates earlier this year, a point I’d missed!)
“The Ballot Measures Aim to Reduce Partisanship. Can They Fix American Politics?”
Michael Wines for the NYT:
Americans of both parties routinely express deep concern about the state of the country’s democracy. This fall, many voters may have a chance to do something about it, by voting on state ballot measures related to the nuts and bolts of elections and governance.
Eight states, including Ohio and seven others largely in the West, appear all but certain to field ballot measures that would either overhaul redistricting or rewrite election rules to discourage hyper-partisanship and give voters a greater voice in choosing candidates.
Redistricting ballot measures are not uncommon, but since the advent of citizen-backed ballot initiatives in the early 1900s no other year has had more than three election-system initiatives, according to the online elections database Ballotpedia….
Closed primaries, the argument goes, rob independent voters — a growing segment of the electorate, and in some states now the largest one — of a voice in choosing general election candidates. Candidates in open primaries have an incentive to court not only independents but also voters of the opposing party, which, in theory at least, should steer them closer to the political center.
And gerrymandered maps make elections so lopsided that parties with little chance of winning often don’t bother to field general-election candidates. (Nationally, about four in 10 state legislative races have only one candidate.) In those cases, the general election winner only has to win over primary voters, not the broader electorate that turns out in November.
Advocates of ranked-choice elections say they not only give voters a greater say in choosing the ultimate winner of a political contest, but also reward candidates who try to win over a broad swath of the electorate.
It is no accident that electing more moderates would change the conditions that have made the G.O.P. a hothouse for far-right extremists, said Richard L. Hasen, an election-law expert and director of the Safeguarding Democracy Project at the University of California, Los Angeles, School of Law.
“So much of this has to do with the battle for the soul of the Republican Party,” he said.
Not everyone buys the logic. Academic research suggests that ending gerrymandering and adopting certain versions of ranked-choice voting can indeed dampen hyper-partisanship and promote cooperation. But the evidence favoring open primaries is more mixed….
However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.
“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”…
Ned Foley responds to Nate’s comments here.