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. 

            The idea that this bill can keep Democrats in power indefinitely, or at least until Republicans regain their senses and restore the GOP to Liz Cheney’s version rather than Donald Trump’s, is fundamentally flawed in my view. For one thing, given the core value of fair electoral competition, no single party—not even one that calls itself the “Democrats”—is entitled to hold onto power, and to try to write the rules to enable itself to do so, because only it can be trusted with the keys to the small-d democracy car. The most basic concept in an electoral democracy is that the competing parties take turns at the wheel of government depending on whom the voters, not the party in power, choose for the next drive around the track. 

            But the more important point, again, is a practical one.  If Democrats really want to save small-d democracy, they should be adopting reforms now on the assumption that Republicans will control Congress after the 2022 midterms, not that Democrats will be able to prevent Republican victories by enacting better voting rights rules this year. From that perspective, the Freedom to Vote Act has the wrong focus. 

            The biggest threat to the ongoing operation of small-d democracy is a structural one concerning the relationship of primaries and general elections in most states, together with the plurality-winner rule that determines the general-election winner. It is this structural arrangement that enables Trump so effectively to threaten primary challenges against Liz Cheney and other Republicans who disloyally refuse to go along with his “Big Lie” (like Brad Raffensperger)—and also to cause other traditional (non-Trump) Republicans, like Rob Portman and Roy Blunt, to abandon Senate seats that they easily could win again in November of 2022 but have decided not to even try because first they would face a Trump-dominated primary. 

            As a consequence of this structural deficiency, after the 2022 midterms the Senate is likely to have Josh Mandel or J.D. Vance from Ohio instead of Rob Portman. The House could have Trump-endorsed Harriet Hageman, instead of Liz Cheney. The Georgia Secretary of State could be “Big Lie” cheerleader Jody Hice instead of Brad Raffensperger. And you can go down the long list of other races where Trump is endeavoring to replace an old-style Republican with a MAGA devotee. That’s what Democrats, and everyone else who cares about small-d democracy, should be most worried about—and there’s not a single provision in the Freedom to Vote bill addressed to this problem, although there easily could be. 

            The philosophy of the Freedom to Vote bill is make it as easy as possible to cast a ballot.  Fine, assuming it doesn’t increase the risk of Republicans repudiating results because of their “Electoral McCarthyism” paranoia about essentially nonexistent voter fraud.  But maximizing access to the ballot doesn’t do one wit of good about what I call “the Portman problem”: the likelihood that a Trump acolyte like Josh Mandel or J.D. Vance will be sitting in that Senate seat on January 6, 2025. 

            To solve the “Portman problem”—which is really the “Portman, Blunt, Cheney, etc., etc., problem”—you need to rethink the relationship of primaries and general elections.  Back in January, when Portman first announced he wasn’t running, I thought Alaska’s new system—a nonpartisan primary that sends four candidates to the general election, with the winner to be chosen by Instant Runoff Voting—might be the solution. If Ohio had that, like Alaska does, I thought Portman might have a chance of winning the general election without winning a Trump-dominated GOP primary, just as Lisa Murkowski might survive next year’s challenge from Trump-endorsed Kelly Tshibaka. 

            But as I looked into the issue more, I realized that the cancer of Electoral McCarthyism might have metastasized to the point where the Alaska system is not strong enough medicine.  If in the general election, Portman would come in third behind both the Trump-backed candidate (either Mandel or Vance or one of other Ohioans vying for his endorsement) and the Democrat, Tim Ryan, then Portman most likely would not survive the Instant Runoff Voting process. For the same reason, Murkowski might not win even with the new Alaska system in place.  This is true even though, technically, Portman and Murkowski would be what’s called the “Condorcet candidate” in the race, meaning that Portman or Murkowski would beat any other candidate on the ballot one-on-one and, for that reason, is the most majority-preferred candidate given the full range of the electorate’s preferences regarding all candidates. 

            What then? 

            Well, it’s possible to design an electoral system that picks the Condorcet candidate as the winner. Nobel laureates Eric Maskin and Amartya Sen have done recent work on this. Being from sports-fanatic Ohio and knowing the impossibility of selling the public on any electoral system named after an eighteenth-century French philosopher, I begin to wonder: why not just call it “round-robin voting,” which is exactly what it is. It’s also not that different from the Alaska system: it uses the same ranked-choice ballots that Instant Runoff Voting does, it just identifies the winner in a different way—a way that is superior from the perspective of majority rule for the reasons that Maskin and Sen explore and that I develop in my own recent additional work on the topic. Unfortunately, there’s not time to mount an initiative campaign on behalf of “round-robin voting” that, if adopted, would have it in place in Ohio for the 2022 U.S. Senate election, to give Portman (or perhaps John Kasich) a chance to compete one-on-one against both the Trump-endorsed candidate and the Democrat. 

            Nor is it reasonable to expect Congress to adopt “round-robin voting” as part of the Freedom to Vote bill, or in a separate piece of stand-alone legislation. It’s too novel an idea—and this is true even if its pedigree is actually older than eighteenth-century France, going all the way back to a thirteenth-century philosopher from Majorca, Ramon Llull. Given federalism, if round-robin voting is to be adopted at all, it must first be tested by states in their roles as laboratories of democracy. 

            But it should not be unreasonable to expect Congress to set as a benchmark for all states, as part of their obligation to satisfy at least minimally prerequisite conditions for any democracy, that they elect their U.S. Senators (and U.S. Representatives, at least for as long as the congressionally mandated uniform requirement of single-member districts remains) by means of some system that requires the winning candidate to receive a majority of votes in the November general election.  Requiring winners to get a majority of votes should not be too much for Congress to demand; in fact, Congress demanded it for U.S. Senate elections back in the nineteenth-century, when Senators were elected by state legislatures before adoption of the Seventeenth Amendment. 

            It would be easy to insert this kind of majority-winner requirement in the Freedom to Vote bill, or write it up as separate legislation: all it would take is a few lines of statutory text (see page 49 of this forthcoming law review article). But its small size would have a major effect: most states would need to change their rules. Alaska would not, because its new system would qualify even though it doesn’t guarantee a Condorcet winner. Thus, a majority-winner rule would not necessitate round-robin voting. But it would be a huge improvement over the status quo in terms of avoiding a more Trump-dominated Congress after the midterms—and thus reducing the risk of a repudiated presidential election on January 6, 2025.

            If Democrats truly wished to be the custodians of small-d democracy, getting Congress to enact a simple majority-winner rule before the midterms would be their top priority. They shouldn’t even need to reform filibuster rules: in order to avoid extinction like the dinosaurs, non-Trump Republicans like Portman and Blunt should be rushing to join Democrats to adopt this requirement.  But if non-Trump Republicans can’t see for themselves that a majority-winner rule is their best shot at survival, it would be worth pursuing filibuster reform to secure this democracy-safeguarding priority. 

            Democrats presumably would prefer not to see Josh Mandel joining Josh Hawley in rejecting a valid victory by their 2024 presidential nominee (whether Biden or someone else).  Therefore, they ought to focus attention right now, before it’s too late, on getting Congress to enact this kind of majority-winner requirement applicable to next year’s midterms, and not just all the making-it-easier-to-cast-a-ballot provisions in the Freedom to Vote bill.