Category Archives: theory

How to tell if an election result is valid?

In advance of the 2020 election, I devoted a significant portion of my scholarship to this issue: given an official announcement (or certification) of an election’s result, how are citizens, journalists, judges–all of us–to determine whether the result should be accepted as valid?

I considered this question especially important in the aftermath of the 2016 presidential election because I thought that public discourse on this topic had become dangerously muddy, with many individuals characterizing Donald Trump’s victory as somehow invalid because of Russian interference. To me, this discourse seemed extremely problematic because I had no doubt that the vote tallies that produced Trump’s win were a sufficiently accurate count of ballots entitled to be counted and that there was no basis for considering that the wrong candidate had been declared the winner of the election. To characterize Trump’s victory as somehow invalid confused public discourse on this important topic, hindering the ability to distinguish the circumstance in which an election is truly invalid because the wrong candidate has been declared the winner.

As a consequence of this concern, I wrote a law review article on this topic: Assessing the Validity of an Election’s Result: History, Theory, and Present Threats. I also wrote a shorter essay on the same topic aimed at a more general audience: How to Know if the Election Is Actually ‘Rigged’. (If I’m capable of assessing my own work, this latter essay might be the most significant piece I wrote in 2020.)

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Democrats, democracy, and “the Portman problem”

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? 

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Newsom recall lawsuit

Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.

The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.

But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.

Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.

Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.

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Breaking round-robin ties

The USA women’s soccer team is advancing out of the preliminary round-robin stage of competition based on a “goal differential” tiebreaker used to differentiate teams with the same win-loss records. “The United States finished second in Group G on the strength of its plus-3 goal differential,” the Washington Post reports. I mention this here because a similar “vote differential” statistic is used to break ties among candidates in Round-Robin Voting. One reason for developing Round-Robin Voting as an electoral system is its straightforward comparison to round-robin competitions in sports. If the public can understand how a round-robin tournament works in the Olympics, the public can understand how round-robin competition would work in an election. The ability of the public to understand its own electoral system is an important feature of a democracy, including the public’s willingness to adopt the system in the first place. Obviously, there are other important criteria in making a choice among alternate electoral systems, including those directly relevant to how each system translates voter preferences into an overall winner entitled to govern in the name of the people. Still, as this year’s Olympics unfold, it’s a useful reminder that the idea of Round-Robin Voting should not be ruled out solely on the ground that it is too complicated for voters to understand.

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Could you withstand the pressure?

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.

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“The Democracy Constitution” proposal

Rick’s new essay on the length of House terms got me thinking about the project recently undertaken by the Democracy to draft a proposed whole new constitution for the United States. I don’t recall seeing mention of this project on ELB (apologies if I missed it), and I confess I haven’t had a chance yet to take in all its details and the deliberations behind it (the journal’s symposium on it has a lot for those wanting to pursue it). But I did quickly notice just now that it proposes 4-year terms for the national House of Representatives (in its Article II, section 2). Apparently the vote of the project’s “delegates” on this provision was 58% for 4-year terms, 8% for 3-year terms, and 33% for 2-year terms.

More broadly, I wonder what this project says about the chances of actually getting a new constitution for the U.S. anytime soon. I think it’s widely accepted among scholars, in the fields of election law and constitutional (and among political scientists as well), that the Constitution is long past showing its age with serious need for various major structural reforms, and yet because of Article V’s constraints on constitutional amendments seemingly impossible to change. The document’s arguably most undemocratic feature by contemporary standards, equal number of Senators for each state regardless of population, can’t even be amended the normally difficult way but requires the consent of each state. Thus, it would seem to require some sort of convulsive and calamitous condition to get to the point where a whole new constitution that breaks from the constraints of Article V has a realistic chance of actually being adopted, and I don’t think we would want those kinds of precipitating circumstances to occur. But maybe as a nation we are heading there.

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Tournament Elections with Round-Robin Primaries

I’ve posted a draft of this paper on SSRN. Here’s the abstract:

Round-robin voting uses ranked-choice ballots but calculates which candidates are most preferred by a majority of voters differently from instant-runoff voting. Like a round-robin sports competition, round-robin voting determines how each candidate fares against every other candidate one-on-one, tallying the number of wins and losses for each candidate in these one-on-one matchups. If necessary to break a tie in these win-loss records, round-robin voting looks to the total number of votes cast for and against each candidate in all of the one-on-one matchups—just as round-robin sports tournaments look to an equivalent total point differential statistic to break ties. When used in a primary election as the method to identify the top two candidates deserving to compete head-to-head as finalists in the general election, comparable to the use of round-robin competition as the preliminary stage of a sports tournament, round-robin voting is the electoral system best able to implement the democratic idea of majority rule.

I was delighted to have the opportunity to present an earlier draft at the University of Wisconsin Law School’s “Public Law in the States Conference” on June 23, and I’m looking forward to working with the Wisconsin Law Review on preparing the paper for publication. This draft will be revised before submission to the law review’s editors at the end of August, and therefore I very much welcome any comments that readers might email me before then.

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Effect of Primaries on Electoral Outcomes?

Geoffrey Skelley at 538 has a piece on Lee Drutman’s very important new report analyzing the effect of primary elections on general election outcomes. (I mentioned this report in a previous blog post.)

As Skelley explains, Drutman’s report is based on extensive empirical data and questions whether the rules governing primary elections contribute to the increased polarization of electoral results. In this respect, Drutman is running counter to others who argue that primaries are a main driver of skewed politics, causing outcomes artificially distorted compared to a baseline of what voters as a whole actually want. Drutman’s case is very detailed and deserves more consideration than I will give it here.

I want to highlight one point from Skelley’s useful summary of, and commentary, on it. Skelley, like Drutman himself, observes that Alaska’s new “top four” system might be more effective at combatting polarization than previous efforts at primary reform, like California’s “top two” system. (Alaska will use Instant Runoff Voting in its general election to identify the winner among the top four candidates who advance from its nonpartisan primary.) But Skelley appropriately cautions, using Senator Lisa Murkowski’s upcoming 2022 race as an example, that the Alaska system may be no more able to counteract the increased polarization of voter preferences than California’s “top two” system.

In this regard, it’s worth noting that an alternative electoral system, Round-Robin Voting, would handle polarization very differently from either California’s “top two” or Alaska’s “top four” systems. (Round-Robin Voting uses ranked-choice ballots but it calculates the relative strength of candidates differently from the Instant Runoff Voting methodology used in Alaska and elsewhere.) I have written about Round-Robin Voting, including comparing it to California’s “top two” system and Alaska’s new “top four” alternative, as part of a paper arguing that Congress should adopt a “majority winner” rule that would require states to experiment among different majority-winner electoral systems. (California’s top two, Alaska’s top four, and Round-Robin Voting would all qualify, but the combination of partisan primaries and plurality-winner general elections would not.) This video uses graphics to show how Round-Robin Voting treats polarized voting preferences very differently from either the California or Alaska system.

One aspect of the video deserves mention in connection with Skelley’s piece. Skelley observes that, contrary to conventional wisdom, recent studies suggest that primary voters are not ideologically more polarized than general election voters. If this is true, it’s not enough just to “fix” primaries by changing the rules governing them; instead, it’s necessary to consider more broadly how primary elections interact with general elections in eventually producing a single winner from a field of multiple candidates across the ideological spectrum. The comparison of Round-Robin Voting with the California and Alaska systems in the video (and in a separate paper on which this video is based, to be posted shortly on SSRN) assumes that the electorate is the same ideologically for both the primary and general elections; even so, Round-Robin Voting reaches a very different result given the same set of polarized preferences from voters than does either the California or Alaska systems. Therefore, as one considers the implications of Drutman’s important report on primaries, one should consider not only the potential of Alaska’s top-four system and Skelley’s cautionary note about it. Also relevant is the possibility of Round-Robin Voting as an alternative way to address the issue of increased polarization.

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J.D. Vance and the pressures of primaries

In a remarkably candid TIME interview with Molly Ball after announcing his candidacy in Ohio’s 2022 U.S. Senate election, for the seat being vacated by Rob Portman, J.D. Vance acknowledged that he’s pandering to ex-president Trump because that’s the only way to be viable in the GOP primary: “I need to just suck it up and support him.”

It’s believed that Portman abandoned his Senate seat, despite remaining popular among Ohio’s general election voters, in part because he didn’t want to pander to Trump for the sake of winning the primary. In this respect, Portman is in the same position as Roy Blunt of Missouri, Richard Burr of North Carolina, Richard Shelby of Alabama, and Pat Toomey of Pennsylvania, all non-Trump Republicans giving up their Senate seats.

Vance’s comment, as a kind of exclamation point on this troubling trend, vividly illustrates one of the main observations of recently released “The Primary Problem” report from Unite America: the existing system of partisan primaries, followed by plurality-winner general elections, not only affects which candidate ultimately holds office but also how candidates choose to campaign and then act in office in order to avoid being “primaried” when running for reelection. The distortion of representation is pervasive as a result of the particular institutional arrangement in which candidates compete. (An even newer report, from New America, reaches a similar assessment–“primaries incentivize more polarizing behavior among candidates and legislators”–although it is cautious in its conclusions on how best to address the issue.)

I wonder, therefore, what kind of candidate J.D. Vance would have attempted to be if he were running, not in the current system, but instead in the system of “Round-Robin Voting” that the Election Law at Ohio State program is developing. This system, which involves a variation on ranked-choice voting, requires candidates to compete one-on-one against all other candidates for the office regardless of party affiliation, to determine which candidate is most preferred by a majority of the entire electorate. If you watch until the end of this 15-minute video explaining Round-Robin Voting, you’ll see that it hypothesizes an “Opportunist” candidate attempting to position himself (or herself) in between a Trumpian Populist (like Josh Mandel, already running for this Ohio U.S. Senate seat) and a traditionally Conservative Republican (like Rob Portman). Does J.D. Vance exemplify this “Opportunist” candidate, and how would he fare in a Round-Robin Voting nonpartisan primary? Also, would Portman have run for reelection if he had been able to do so in a Round-Robin Voting nonpartisan primary?

Rather than answering these questions definitively right now, it’s instead worth keeping them in mind as the 2022 midterm campaigns unfold. The big-picture point: as much as the changing nature of American politics is caused in part by changes in voter preferences, it is also significantly a product of the particular system in which politicians operate. If that system artificially magnifies increasingly extremist tendencies in what voters want, it’s necessary to alter the system itself to undo that dangerous magnification of extremism.

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“The Constitutional Right of Self-Government”

Nikolas Bowie has posted this draft on SSRN (forthcoming, Yale LJ). Here is the abstract:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.

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“Democratic Legitimacy under Conditions of Severely Depressed Voter Turnout”

Jim Gardner has posted this draft on SSRN (forthcoming, U Chicago L Rev Online). Here is the abstract:

Due to the present pandemic, it seems increasingly likely that the 2020 general election in November will be held under conditions of unprecedented downward pressure on voter turnout. The possibility of severely depressed turnout for a highly consequential presidential election raises troubling questions of democratic legitimacy. Although voter turnout in the United States has historically been poor, low turnout is not usually thought to threaten the legitimacy of electoral processes when it results from voluntary abstention and is distributed unsystematically. Conversely, electoral legitimacy is often considered at risk when nonvoting is involuntary, especially when obstacles to voting fall systematically on specific populations. If turnout in November is unusually low but largely voluntary and unsystematic, then the risks to legitimacy should be low. If, however, nonvoting is both widespread and involuntary, and especially if obstacles to voting seem systematically directed at specific groups, conditions will be in place for a significant escalation of the threat. In particular, concerns of electoral legitimacy, which place in doubt only the authority of specific election winners to occupy the offices to which they have purportedly been elected, may ratchet up to much more profound concerns about regime legitimacy. Such concerns cast doubt on the continuing validity of popular consent to the entirety of the existing governmental regime.

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Election-related options still to come at AALS

Rick already mentioned a few of the exceptional election-related events at AALS so far. 

There are still several to come, including my stint tomorrow at 8:30 as least valuable player on a 2020 census panel with Dale Ho, Christina Mora, and Franita Tolson, moderated by Rachel Moran. 

Then stick around for a 10:30 panel on the 15th and 19th Amendments with Atiba Ellis, Catherine Powell, Camille Gear Rich, Jorge Roig, Ciara Torres-Spelliscy, and Sarah Catherine Walker, moderated by Marc-Tizoc Gonzalez.   And a 1:30 program on partisan politics and our democratic order, with andré douglas pond cummings, Emma Jordan, Yvonne Lindgren, and Gerald Torres, moderated by Steven Ramirez.   And another 1:30 program on litigating voting rights remedies in the Trump era, with Elise Boddie, Guy-Uriel Charles, John Harrison, and Pam Karlan, moderated by Alexandra Lahav.  And a 3:30 program on discussing socioeconomic issues in the context of a polarized and polarizing election season, with Natalie Gomez-Velez, Susan Kuo, and Bertrall Ross, moderated by Deleso Alford and June Rose Carbone.

And the big presidential program tomorrow at 1:30, on representation, voting, and sustainable constitutional democracy, with Guy, Pam, Michael Morley, and Kim Lane Scheppele, moderated by Thomas Ginsburg.

Among (many) others.  If you’re in the Wardman Park area, come join!

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“The Law of Electoral Democracy: Theory and Purpose”

Looking forward to reading this from Graeme Orr:

This chapter explores the question of ‘theory’ within the law of electoral democracy, by considering what it would mean for such a theory to exist given the contested nature of democracy itself.

It begins with a brief survey of the terms in question, including the emergence of electoral law as a field of study and its under-theorised state. It is quickly shown that, outside of a narrow and minimalist conception of a free election as one where votes are cast and counted, there is little agreement on the norms that should determine the law in this area, even on some fundamental concrete questions.

Normative coherence however can be demonstrated within competing approaches to the law. A social democratic theory of law is seen to provide salutary reminders. Reminders that democratic politics is collective more than individualist and that electoral democracy is not the whole of democracy. Within that tradition, the distinctive contribution of Keith Ewing to political finance – which he configures as party finance – is discussed.

Ultimately a four-sided functionalist account of the purposes of electoral law is offered. The four categories are: Structural Integrity, Democratic Values, Ritual Experience (all insider perspectives) and the cynical/outsider perspective of elections as a Game/Mask. The aim of the functionalist account is to show that whilst normative approaches may be sharply contested, we are not lost at sea: theory can help set the parameters of the ongoing debate over the shape of the law.

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