Category Archives: theory

“Faulty Textbooks: The Strip Mining of Anthony Downs’ ‘Economic Theory of Democracy'”

New article by Steven Hill at DemocracySOS that does a deep dive into Anthony Downs’ seminal work, Economic Theory of Democracy, and its ramifications for today’s politics. In particular, the article focuses on how Downs’ work has been misrepresented so as to mask the instability and polarization of the U.S. political system. Check it out!

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Monopoli on the Nineteenth Amendment

Paula Monopoli (University of Maryland Francis Carey School of Law) has a new article out entitled, “Gender, Voting Rights, and the Nineteenth Amendment.” The article is forthcoming in the Georgetown Journal of Law & Public Policy. The abstract is below:

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that ‘there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment’. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

Can’t wait to read this one! Important and timely.

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“There is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory”

Must read article by Judge Luttig in The Atlantic on the independent state legislature theory. Judge Luttig argues that there is nothing in the text or structure of the Constitution that insulates the decisions of state legislatures, regarding the times, places and manner of federal elections, from state judicial review. Indeed, Judge Luttig contends that the opposite is true–that recognition of this theory would not only be counter to the Framers’ intent, but would also undermine the power conferred to state courts by both their state constitutions and the Supremacy Clause of the U.S. Constitution:

“When the state courts review the decisions of their state legislatures under their state constitutions, they are not exercising federal power delegated to them by the state legislatures; they are exercising the judicial power of the states, which was reserved to the states by the federal Constitution and accorded the state supreme courts by their state constitutions.”

The whole article is insightful and worthwhile. Check it out!

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My New Article Posted on SSRN: “Election Reform: Past, Present, and Future”

I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:

This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.

Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment

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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.)

Continue reading How to tell if an election result is valid?
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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? 

Continue reading Democrats, democracy, and “the Portman problem”
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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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