As Rick blogged earlier today, the Alaska Supreme Court heard oral argument in an important case challenging the constitutionality of the state’s new electoral system, which has a nonpartisan primary that sends the top four candidates to the general election, in which a ranked-choice ballot is used to identify the winner (using the instant runoff voting computational method). Here’s video of the oral argument. [Update: at 41:45, counsel for the state encourages the court to read the law review article written by Rick and his co-author Michael Parson. One justice perhaps was a bit skeptical in questioning.]
This new piece in The Washington Post, as well as several others including one in the N.Y. Times based on Jeremy Peters’ forthcoming book, confirms for me the connection between (1) the entrenchment of Trump’s false claim about the 2020 election being stolen and (2) the structural flaw of the existing plurality-winner electoral system that enables Trump to “primary” Republicans he considers disloyal and thereby prevent them from being viable general-election candidates in November. Given the initial response to January 6 by Republicans like Sen. Lindsey Graham and Rep. Kevin McCarthy, followed by the snapback loyalty to Trump once he had proven his ongoing connection with the base and therefore his capacity to destroy in a primary any Republican disloyal to him, the conclusion to draw is that Republicans who might have been willing to speak out against the Big Lie if there weren’t this threat of being “primaried” quickly realized they needed to hold their tongues if they want to keep their careers.
Other Republicans eager for Trump’s endorsement in a primary starting embracing the Big Lie even if they otherwise would have been disinclined to do so. The Post’s description of Senate candidate Bernie Moreno is illustrative of this. Another Ohio Senate candidate, J.D. Vance, could also serve as an example, given the transformation of his views on Trump in his quest for the GOP nomination.
The upshot is that I’m even more convinced than I was a year ago that if we are going to solve the Big Lie problem, we must solve the “primary problem“. We need a lot more Republicans, besides Liz Cheney (who faces her own threat of being primaried by Trump), to denounce the Big Lie. But that’s not going to happen without structural reform that removes the effectiveness of this threat. Structural conditions have enabled the Big Lie to take hold over the last year, and thus there will need to be structural reform in order to undo the perniciousness of the Big Lie.
If every incumbent Republican had the benefit of Alaska’s new electoral system that Lisa Murkowski has, every incumbent Republican would be in a different posture with respect to the threat of being primaried than most currently are. Alaska’s system isn’t a perfect panacea for reasons I’ve explored elsewhere, but it is far better at counteracting the threat of the Big Lie than the plurality-winner system that operates in most states. Thus, as we reflect on how deeply ingrained the Big Lie has become over the last year and endeavor to find a solution, we can’t ignore the role that the existing plurality-winner electoral system has played (which enables primaries to have their effect of eliminating candidates who would be preferred by general-election voters) and thus must move to the center of the electoral-reform agenda the possibility of structural alternatives.
There has been skepticism voiced by some about my suggestion that, after January 6, Democrats in Congress should have pursued a strategy of finding at least ten GOP Senators to support the kind of structural electoral reform, like a majority-winner rule, that would help protect the traditional wing of the Republican Party–and thus the nation’s system of democratic competition–from Trump and Trumpism.
While it’s always prudent to avoid excessive optimism about the possibility of electoral reform, especially given the predisposition of incumbents to stick with the system in which they won their own elections, why is it unreasonable to think that a deal might have been possible if focused on the specific idea of helping the traditional GOP avoid a hostile takeover from the MAGA movement? It would have been in the rational self-interest of traditional Republicans, like Senator Roy Blunt (ranking member of the Rules Committee) and even Minority Leader Mitch McConnell, to be open to that kind of conversation if pursued by Democrats in good faith.
Moreover, it would have been easy to point to Alaska as an example of how structural electoral reform can help traditional Republicans from attack by Trump. Lisa Murkowski is in a much better position to survive Trump’s attack on her than Liz Cheney, for example, for the simple reason that Alaska has a adopted a different electoral system (“top 4 with RCV”) than the conventional system that Wyoming has (a partisan primary followed by a plurality-winner general election). If Democrats had attempted to work with Murkowski to educate other traditional Republicans on how this kind of electoral reform could benefit their brand of Republicanism–indeed, protect it from threatened extinction at the hands of Trump and his acolytes–a total of ten GOP Senators might have become open to the idea.Continue reading Could bipartisan democracy-protection have worked? Could it still?
Henry Olsen for the Washington Post updates his top 5 list of the GOP primaries that will show Trump’s influence in the midterms. His new rankings list the Perdue-Kemp gubernatorial primary in Georgia first. When I contemplate this race, as well as the rest of Olsen’s list, I think it’s important to consider that the extent of Trump’s power is a function of not only voter preferences but also the institutional structures that convert those voter preferences into electoral outcomes. For example, what if Georgia used Alaska’s new electoral system (“top 4 with RCV”) of a nonpartisan primary that sends four finalists to the November general election, the winner of which is chosen using Instant Runoff Voting? What would be the extent of Trump’s power over the outcome of Georgia’s gubernatorial election in that situation? There is reason to believe that it would be greatly diminished, relative to the current electoral system in Georgia with its traditional party primary, because both Perdue and Kemp would likely be among the four finalists to compete for the preferences of Georgia’s entire electorate (not just its Republican voters). Kemp, in other words, would have the same relative advantage against this Trump-endorsed opponent that Lisa Murkowski will have in Alaska. The Alaska electoral system hardly guarantees the defeat of the Trump-endorsed candidate (much less victory for a Trump-opposed Republican like Kemp–in Georgia, Stacey Abrams might win), but Alaska’s system does tend to reduce Trump’s leverage over the process. (The system of Tournament Elections with Round-Robin Primaries would do this even more.)
If one fears Trump’s capacity to influence the outcome of GOP primaries and then have his endorsed candidates win general elections in red and even purple states, with the consequent threat to democracy from having a Trump-led party in power, then one ought to put at the top of one’s list of election reform priorities the kind of structural change that would reduce the leverage that Trump has based on the existing system of partisan primaries followed by plurality-winner general elections. Whether to replace it with Alaska’s new system or something else is another matter. But one should still see Trump’s present political strength as a consequence, at least in large part, of an existing electoral system that is not inevitable but is instead itself a political choice.
The Democratic Party has spent the entirety of 2021, in the aftermath of January 6, as if the top electoral reform priority must be to make sure that it is easy as possible for voters to cast a ballot. Democrats continue to emphasize this as their highest priority as they search for a way to negate the unified GOP opposition, through means of a filibuster, to their Freedom to Vote bill. But if Trump and a Trump-dominated GOP ends up controlling American government again, to the long-term detriment of American democracy, the culprit likely will be not the inability of voters to cast a ballot if they wish to do so, but instead the particular electoral system that converts the ballots cast by voters into the outcomes that identify which candidates are entitled to hold office as a result of elections.
Moderate Republicans struggling to stay in office given party primary dynamics is not exactly news. Still, this Politico article on the Republican Party in Massachusetts is worthwhile.
“Republicans [in Massachusetts] have clung to relevancy in this bluest of blue state through a long line of moderate governors, including one-time presidential nominee and sitting Utah Sen. Mitt Romney, who appealed across party lines even as Democratic supermajorities in the state Legislature continued to grow.”
But now, internal polling led Baker to drop out of the race. Still, a number of Republican strategists, including Baker, do not think that the ultra-rightward shift is sustainable.
“Baker [maintains] . . . that voters are still more aligned with his brand of old-school New England Republicanism and bipartisanship than anything else. And other Republican strategists dismissed the GOP’s rightward march and embrace of Trump as a losing general-election strategy in Massachusetts.
‘Catering to 10 percent of a population and not focusing on the other 90 percent — it doesn’t take a rocket scientist to figure out you’re not going to get the numbers you need to get elected,’ said Colin Reed, former campaign manager to former Massachusetts GOP Sen. Scott Brown.”
Election Law at Ohio State is pleased to present a one-hour webinar on the issue of electoral system design: The Problem with Plurality-Winner Elections – And Can Requiring Majority Winners Help Save Democracy? It’s scheduled for Friday, November 19, at noon ET.
Steve Huefner will moderate the discussion. I’ll present some research we’ve been doing here at Ohio State on this topic. Franita Tolson and Derek Muller, both familiar to readers of this blog, with comment as panelists. We are are delighted that Rachel Kleinfeld, Senior Fellow at the Carnegie Endowment of International Peace, who has been studying the relationship of electoral systems to political conflict, will also participate as a panelist.
The webinar will examine the role that the plurality-winner rule for congressional elections has in causing incumbents, like Sen. Rob Portman and Rep. Anthony Gonzalez (both of Ohio), to decide against running for reelection–regardless of being popular with their constituents–just because they have become out-of-step with their own party. The webinar will also explore whether alternative majority-winner electoral systems, like various versions of Ranked Choice Voting, might improve representation and reduce the risk of democratic decline in the U.S.
To register for the webinar (and more info), please click here.
Senator Tim Kaine has a new Washington Post op-ed entitled The Jan. 6 attack demands that we protect voting rights, in which he says: “Only by passing comprehensive voting rights legislation can we live up to th[e] responsibility” to protect democracy from another attempt to subvert it like the one that occurred on January 6.
The problem with Kaine’s argument is that while the right to cast a ballot, and to have it counted as cast, is necessary if democracy is to survive in the United States, safeguarding these voting rights does not suffice. Perfect protection of these essential voting rights does not address what I’ve called the “Portman problem” and now “the Gonzalez problem”: the structural flaw of partisan primaries combined with plurality-winner general elections.
This structural flaw enables an authoritarian-leaning faction within one of the two major parties to win for its candidate the party’s nomination in its primary, beating a non-authoritarian primary opponent who would have been the “Condorcet winner” in the general election. The authoritarian-leaning major-party nominee then goes on to prevail in the plurality-winner general election, because the “Condorcet winner” was knocked out in the primary and has no way of prevailing in the general election as most majority-preferred candidate (which the Condorcet winner is) given that the general election awards the office to a plurality winner and does not require a show of majority support. In this way, the plurality-winner rule for general elections, combined with the antecedent partisan primaries, enables an authoritarian faction that only has minority support within the electorate overall (and whose candidate is not the Condorcet winner) to capture government power.
If America is going to protect itself from the risk of another January 6, it is going to need to fix this structural flaw. As is altogether too obvious, and is exemplified by Anthony Gonzales withdrawing from his reelection bid to avoid a Trump-inspired primary fight, Trump is endeavoring to exploit this structural flaw to recapture political power even though he represents only a minority faction and lacks majority support in the November electorate (statewide or district-specific, as in the Portman or Gonzalez examples). If he is able to use this structural flaw to take control of Secretary of State offices, governorships, and U.S. Senate and House seats, then his authoritarian-leaning minority faction is positioned to repudiate the result of the 2024 presidential election based on a “Big Lie 2.0” and the systematic plague of electoral McCarthyism he has been spreading.
I have no doubt Senator Kaine is well-intentioned. But he is misdiagnosing the threat and the remedy necessary to address it. Making sure every voter can cast a ballot in the midterms, and counting those ballots correctly, does not solve the Portman-Gonzalez problem. (Even ending gerrymandering does not suffice, since the “Portman problem” applies to statewide as well as district-specific elections.) To adequately address the current danger of incipient authoritarianism to America democracy, it is necessary to eliminate plurality-winner general elections, which Congress is constitutionally empowered to do for U.S. Senate and House seats. Regrettably, however, Senator Kaine’s Freedom to Vote bill makes no effort to do that.
Earlier today, I did a post explaining why, if the goal is to reduce the risk of Republicans repudiating the result of a valid victory in the 2024 presidential election by the Democratic candidate, the highest electoral reform priority for Congress right now should be to enact the “majority winner rule” I’ve advocated previously–and elaborated upon in a forthcoming law review article. What I describe as “the Portman problem” (referring to Senator Rob Portman’s decision to abandon his Senate seat rather than facing a Trump-dominated GOP primary, even though he most likely would win the November election if it were a one-one-one race against either the Trump-backed candidate or the Democratic nominee) can be remedied, not by the various make-it-easier-to-cast-a-ballot provisions of the newly unveiled Freedom to Vote bill, but instead by structural reform that would replace plurality-winner general elections with the requirement that a general election winner must receive over 50%. This kind of majority-winner rule would enable a GOP moderate, like Portman, to compete in the general election even if unable to prevail in a Trump-dominated GOP primary.
Now, as if on cue, we get the news that Rep. Anthony Gonzalez, like Portman, won’t run for reelection next year. It’s the same problem: Gonzales likely could beat either the Trump-backed candidate or the Democratic nominee one-on-one (as thus is technically “the Condorcet candidate” for reasons that I explained in my earlier post today), but is structurally boxed out under the current system of a partisan primary followed by a plurality-winner general election. According to an interview Gonzales gave to The NY Times, Gonzalez laments the fact that “the congressional wing of the [Republican] party will become only more thoroughly Trumpified” as a result of his bowing out of the race. To Gonzalez, “Trump represents nothing less than a threat to American democracy,” calling him a “cancer for the country.” Even so, the structural combination of the partisan primary and the plurality-winner general election prevents Gonzales from trying to stay in Congress to avoid “a Trump-dominated House Republican caucus.”
This news of Gonzalez’s decision, coming in the same week that Senate Democrats release their Freedom to Vote bill, ought to be an alarming signal that they haven’t focused on the electoral reform most needed to protect American democracy from Trump-instigated election subversion. If the Senate next week is going to debate what congressional legislation is absolutely essential to safeguarding democracy, it should make sure to consider the kind of structural reform that would let the likes of Portman and Gonzalez–as well as Liz Cheney and so many other threatened non-Trump Republicans–prove themselves to be the most majority-preferred candidate in the general election even if they can’t win a Trump-dominated GOP primary.
Can one party save democracy by itself? I don’t think so, but that seems to be the view of some, as nicely captured by Ed Kilgore in responding to my blog post How Best to End “Electoral McCarthyism”?
Kilgore acknowledges: “Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy.” Further, this reasonable self-restraint on the part of Democrats means, Kilgore continues, their “voting-rights bill imposed by a filibuster carve-out … need not include every conceivable or advisable reform, so as to enable Republican claims of a ‘power grab.’” Since the reason for my blog post was to explore how to reduce the risk of Republicans repudiating valid election victories by Democrats based on claims that Democrats unilaterally imposed electoral rules yielding results that can’t be trusted, there may not be much distance between Kilgore and me practically speaking.
Still, I think it’s worth considering for a moment the idea of Democrats “as sole custodians of small-d democracy.” For how long? The whole point of a fair two-party electoral system is that each party has a good chance of winning. In next year’s midterms Republicans may take back the House, and perhaps the Senate as well, even assuming Democrats unilaterally enact all the provisions in their newly unveiled Freedom of Vote bill. Then what?
From Jonathan Tamari and Jonathan Lai at the Philadelphia Inquirer: An interesting in-depth analysis of the potential political consequences of demographic changes in Pennsylvania—sadly, behind a firewall.
Two key points beyond the headline:
- “Philadelphia and suburban Bucks, Chester, Delaware, and Montgomery Counties added more than 209,000 people in the last decade. That’s a 5.22% increase, while the rest of the state grew just 1.05%.”
- The five counties around Harrisburg are also growing: “The population in these five counties increased by 107,000, a 6.7% growth that was among the state’s highest.”
One potential implication (not discussed in the article): As political power shifts to relatively wealthy and politically well-organized suburbs, Pennsylvania may begin to join those states, like Minnesota, Wisconsin, and Maine, that tend to see a less radical drop in turnout during midterm elections. “About half of the vote in a Democratic primary now comes from the Philadelphia region”—i.e., from these counties. This will give those voters “massive influence” in state-wide races, but is also likely to impact voter turnout.
Politico has a fascinating read on the infighting among Michigan Republicans between Trump supporters, for whom belief that 2020 election was stolen from Trump remains the focus of attention, and traditional Republicans who (like Bill Barr) recognize that this stolen election claim is nonsense. For Michigan, the question is whether this GOP infighting will prevent them from being successful in 2022, especially in the key gubernatorial election.
For those who remember the Tea Party movement of 2010 and 2012, if the GOP veers too far right, Democrats can win November elections that they otherwise would lose in battleground states. Michigan right now would seem an example of this. In their competition with Democrats, it matters what kind of profile the GOP presents to voters. Presumably, the same is true in a state like Pennsylvania.
Conversely, in states that are more right-of-center (like Ohio has become), the dynamic is different. If the GOP there becomes overtaken by obsession over the stolen election claim, there is less likelihood that the GOP will suffer consequences in the November elections. Thus, the consequence of Trump’s takeover of the GOP may differ state to state. One obvious state to watch, given its potential implications for 2024, is Wisconsin.
The spotlight moves from Texas to Ohio, as Politico explains.
Two articles, one in The Atlantic and the other in The New York Times, discuss how first-term Representative Nancy Mace–a Republican from South Carolina–initially condemned Trump for causing the January 6 insurrection, only to backtrack since then. She’s no Liz Cheney, in other words.
But it’s easy to criticize. Can any of us be sure how well we would handle the pressure if we were in their situation? (The pressure is the threat of being abandoned by Trump’s supporters in favor of someone more loyal to Trump.) It’s easy to say we’d have the courage and fortitude of Cheney, but unless we face it ourselves first-hand we can’t really know. The sad truth is that, in the aggregate, Cheney is the exception, not the rule.
The implications of this is that, insofar as is possible, we should look for institutional ways to reduce the pressure and to make it easier for our representatives to do the right thing rather than the wrong thing. (One reason I’ve been working on the idea of round-robin voting, and how it relates to the kind of instant-runoff voting system adopted in Alaska, is to explore institutional alternatives that would help reduce this sort of pressure.) The basic insight of Madisonian theory, as I understand it, is that the institutions of government should be structured in such a way as to “economize” on the limited amount of political virtue that inevitably exists given human nature. “If men were angels,” as Federalist 51 says, we wouldn’t need to worry. Conversely, if there’s no virtue whatsoever, republican government couldn’t possibly function (only anarchy or despotism). So the trick is to calibrate institutions to the amount of virtue that exists (which hopefully is at least sufficient), and if possible create a virtuous circle where good institutions breed more virtue, which in turn make it easier for institutions to serve the public interest. (The virtuous circle, in other words, reduces the pressure on individual politicians to outperform expectations in light of human nature.)
The big-picture problem, as I see it, is that right now our Madisonian system is seriously out of calibration. Currently, there’s not enough virtue for our existing set of institutions. Or, to put the same point another way, our institutions are not, or no longer, well-suited to the amount of virtue we collectively have at the moment. We need to recalibrate, to get our institutions and our communal measure of virtue sufficiently back in alignment. But that’s easier said than done.
The advantage of stories like these two on Nancy Mace is that, as incomplete as they inevitably are in explaining our current predicament, they spotlight the the fact that the virtue component of the recalibration effort necessarily operates at the level of individual souls; it’s not just a matter of the overall structural context in which these individual souls operate. To get a virtuous circle rolling in the right direction, we will have to up our game at the individual level, in order to achieve the institutional reforms required to reduce the need to rely on extraordinary virtue, and to secure even more institutional reform, and so forth. It’s going to be a difficult challenge, but there’s no point giving up without trying.
Politico goes deep into the details of former president Trump’s concerted plans to oust Rep. Liz Cheney as revenge for her commitment to honest vote-counting. Particularly interesting are the efforts to change the rules to make it more difficult for Cheney to win:
Underscoring the urgency, Donald Trump, Jr. earlier this year threw his support behind legislation that would change Wyoming election law to make it harder for Cheney to win against a splintered field. The proposal would have implemented a runoff if no primary candidate received a majority of support in the first round of voting, thereby forcing Cheney into a one-on-one matchup against a Trump ally.
Two of the potential rule changes under consideration according to an article linked to by Politico are ranked-choice voting and a California-type nonpartisan top-two primary. I don’t know if either of those moves would be successful in blocking Cheney; much as with Senator Lisa Murkowski’s situation in Alaska, it would depend on what percentage of voters view Cheney as their first-choice preference. As I discuss in my paper on Round-Robin Voting, both Instant Runoff Voting (what “ranked choice voting” usually is) and California’s top-two system privilege the electorate’s first-choice preferences in comparison to all the preferences that voters have among the candidates in the race. In other words, if many voters really don’t want a candidate to win, perhaps because they view the candidate as authoritarian and dangerous to democracy, that preference (no matter how strong) will be downplayed in either Instant Runoff Voting or California’s top-two system.
Round-Robin Voting, by contrast, does not privilege (or downplay) any of the preferences that voters have among the various candidates and thus will treat a preference that a candidate lose equivalently to a preference that a candidate win. Without looking more closely at the Wyoming race, I can’t be more confident of my assessment, but I’m inclined to think that Cheney would fare much better in a system with Round-Robin Voting than under the current system or under either Instant Runoff Voting or California’s top-two system. The same point applies to Murkowski. The basic reason is that voters who don’t prefer Cheney or Murkowski as their first choice, but really don’t want a Trump-endorsed candidate to win, might rank Cheney or Murkowski second (and enough voters who prefer the Trump-endorsed candidate first might hold their noses and still prefer Cheney or Murkowski to a Democrat). If this is true, then Cheney and Murkowski can win the head-to-head matches that form the Round-Robin Voting competition, even if they would not have enough first-choice strength to prevail under either Instant Runoff Voting or California’s top-two system.
Thus, as one considers how the choice of an electoral system may favor Trump’s midterm efforts to purge Cheney, Murkowski, and others in his quest for a return to power, one should consider the same question in reverse: what electoral system would best protect against Trump’s authoritarian-style populism? I submit that a version of Round-Robin Voting has the best prospect of serving that democracy-protection purpose (although that hypothesis should be tested empirically with whatever data can be mustered for the task).