Category Archives: alternative voting systems

Three fixes Congress should make to save democracy

Here’s a new Washington Post column summarizing my takeaways from the conference that Rick organized and led last week. These are the three italicized headings for the congressional reforms that would help reduce the danger of election subversion specifically in the context of the 2024 presidential election:

Modernizing the antiquated and ambiguous Electoral Count Act of 1887.

Focus on enacting those parts of the Freedom to Vote bill that directly safeguard the honest counting of votes and certification of results.

Changing election rules to require that members of Congress win a majority in the general election, not just a mere plurality.

Share this:

Democracy Protection Requires More than Voting Rights

Senator Tim Kaine has a new Washington Post op-ed entitled The Jan. 6 attack demands that we protect voting rightsin 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. 

Share this:

The “Portman problem” is now also the “Gonzalez problem”

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.

Share this:

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”
Share this:

“Ranked-Choice Voting as Reprieve from the Court-Ordered Map”

Benjamin Lempert in the Michigan Law Review. Abstract;

Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial role.

Share this:

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.

Share this:

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.

Share this:

Trump’s efforts to “primary” Cheney

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.

The legislature, however, voted down the bill in March. Since then, some state lawmakers have pursued other election law changes that would hinder Cheney’s prospects.

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).

Share this:

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.

Share this:

“Why New York’s Election Debacle Is Likely to Fuel Conspiracy Theories”

NYT:

It has been one week since the New York City Board of Elections botched the release of preliminary ranked-choice tabulations from the city’s mayoral race, counting 135,000 dummy ballots that employees had used to test a computer system and then failed to delete.

It was a stunning display of carelessness even from an agency long known for its dysfunction, and the reverberations will continue long after Tuesday evening, when Eric Adams was declared the winner of the Democratic primary race by The Associated Press… That’s because, while the mistake was discovered within hours and corrected by the next day, it provided purveyors of right-wing disinformation with ammunition as powerful as anything they could have invented.

Share this:

“In New York City, did ranked-choice voting let the wealthy override the working class?”

From Ben Lempert’s Monkey Cage analysis:

Using ranked-choice voting requires voters to gather and consider a lot of information…. The research confirms that ranking several candidates is challenging.

Scholars have also found that well-off White voters have more information about electoral politics, at least when asked trivia-style questions about how the government works and who holds office. But despite these background factors, no clear evidence suggests that the complexity of ranked-choice voting burdens disadvantaged voters….

Ranked-choice voting might be so complex that it reinforces inequality. Ranked-choice voting could also make our politics more egalitarian precisely because it asks for more information from voters.

Share this: