On November 23, the Election Law at Ohio State program held a webinar entitled “The Problem with Plurality-Winner Elections: And can requiring majority winners help save democracy?” It was a great conversation that included Rachel Kleinfeld, Derek Muller, and Franita Tolson as panelists (along with Steve Huefner and me from Ohio State). The archived video of the discussion is now available.

One main takeaway of the webinar discussion, I think it is fair to say, was a collective sense that it would be valuable if states engaged in more experimentation, as laboratories of democracy, with different kinds of majority-winner electoral systems. One that was identified in the webinar is “Bottom Two Runoff” or BTR Voting, which is a variation on the kind of “Instant Runoff Voting” system used in Maine, New York City, and elsewhere (including for next year’s election in Alaska). Unlike IRV, BTR will always elect a “Condorcet winner” (meaning a candidate who beats all others head-to-head based on all the preferences expressed using ranked-choice ballots), and therefore in this respect BTR resembles the kind of “round robin voting” system I’ve analyzed in a recently published Wisconsin Law Review article. But BTR is much closer in methodology to IRV than “round robin voting” is and, for this reason, may be more attractive to states and localities either familiar with IRV or considering adopting it as a now-proven form of ranked-choice voting.

The webinar’s discussion expressed the view that currently there is an insufficient basis for selecting any particular version of a majority-winner electoral system, whether BTR or otherwise, as the single best version for all states and localities to adopt. Instead, however, there is reason to believe that various versions of majority-winner systems are preferable to the prevailing plurality-winner (“first past the post”) system that most states currently use. Thus, it would be desirable if states experimented with different forms of majority-winner systems, both (1) to test the hypothesis that majority-winner systems as a group are superior to the plurality-winner status quo, and (2) to demonstrate any relative advantages that exist among the different forms of majority-winner systems.

Experimentation along these lines is also the core of a second law review article I have written, to be published by the Lewis & Clark Law Review: Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism. Editing of this article by the law review is now underway, and I have just posted a revised version on SSRN. In revising this article, which was originally drafted for presentation at an AALS symposium back in May, I’m struck by how much developments in the past six months have confirmed–indeed, intensified–the danger to democracy from authoritarian extremism. (One needs only consider the new issue of the Atlantic for confirmation of this alarm.) Consequently, the idea that replacing plurality-winner elections with majority-winner elections is a reform with the potential to help significantly mitigate this danger has only increased in urgency over the last half year. Yet, regrettably, there has been little movement in Congress on this front during this time, despite all the talk about the need for democracy protection in light of the escalating threat.

One modest move in Congress has been the recent passage by the House of funding to states and localities for the adoption of ranked-choice voting. But the measure would also need adoption by the Senate, and to my knowledge it lacks any GOP co-sponsors there. Moreover, for the experimentation-related (“laboratories of democracy”) reasons set forth above, it would be important that this bill make clear that it embraces all forms of ranked-choice voting that produce majority winners, including BRT and round-robin voting, and not just IRV as already adopted in Maine and Alaska. Yet the description of the bill by its co-sponsors, as well as its text, is unclear on this key point.

As part of any effort to entice GOP Senators to support this measure, I would amend the bill’s language to emphasize this federalism point: that states are encouraged to exercise their freedom of choice to select whatever particular version of majority-winner electoral system they believe would best suit their local circumstances. That might improve the chances that GOP Senators, generally suspicious of federal laws relating to a state’s choice of electoral systems, might be willing to get on board.

Likewise, I would point out that depending on which particular version of a majority-winner system a state chooses, traditional Republicans might have a fighting chance to avoid the kind of political extinction that they currently face given the use of traditional plurality-winner elections. (As I explain in the Lewis & Clark article, traditional Republicans in many elections may be the Condorcet winner, beating all other candidates head-to-head, but are unable to prevail in a plurality-winner system.) Appealing to the self-interest of traditional GOP Senators in this way might be the best shot, absent filibuster reform, for getting this kind of democracy-protecting reform across the finish line.