First, this preliminary tally is yet another example already from this year’s primaries proving the utter irrationality of using the plurality-winner rule in primary elections. However this too-close-to-call race ends, it will be will be with less than one-third of the total votes cast. Both Oz and McCormick have about 31%, with approximately 95% of all votes counted. Neither one can claim to be the Pennsylvania Republican Party’s choice for its Senate nominee in any meaningful sense.
Whichever candidate ultimately wins, and without considering how messy or not the rest of the counting process may be, this kind of result–with the two leading candidates splitting less than a third of the vote and not using any method to identify a majority preference between the two–makes a mockery of the two-party system. One party’s candidate at least will be the clear majority choice of that party’s voters: Fetterman won the Democratic primary with 59%. The other party’s candidate will at best represent one faction within a highly fractured coalition that has split at least three ways, with no demonstration of being the candidate who most represents the preference of the party or its voters as a whole. Yet this factional primary winner could prevail in November, even though the general election voters (like a majority of the party’s own voters) would have preferred one of the other primary candidates. Indeed, if Oz does end up beating McCormick, and then Oz were to beat Fetterman in November, it’s hard not to think that Pennsylvania’s general election voters as a whole would have preferred the chance to choose McCormick over Fetterman, instead of Oz over Fetterman.
During the last couple of weeks, as we’ve watched this same sort of irrationality occur in Ohio and Nebraska, I’ve been asking political scientists why Duverger’s Law doesn’t hold up in primaries. As many readers of the Election Law Blog know, Durverger’s Law is the theoretical proposition that a plurality-winner rule will tend to produce two-candidate competition, as coalitions will need to form in an effort to win the median vote. Durverger’s Law is why when the plurality-winner rule is used in general elections, the result tends to be a two-party system as we have historically had in the United States. Since the mathematics and strategic incentives of the plurality-winner rule are the same in primaries as in general elections, one would think that primary elections also would need to come down to competitions between just two candidates, each representing coalitions within the party. Yet that is clearly not what we are observing this year. While I’d like to see more research on this specific topic, the preliminary answer I’m getting from the political scientists I ask is that one can’t expect Duverger’s Law to hold very well in primaries because intra-party electoral competition is not stable enough, in comparison to general elections, for the strategic incentives of the plurality-winner rule to control. But regardless of the reason that Duverger’s Law does not work for primaries, the simple fact that it doesn’t–and therefore one should routinely expect the kind of highly fractured plurality-winner results we are seeing this year–is reason enough to believe that it’s imperative to jettison the plurality-winner rule for primaries.
Simply put, if we want elections to have any semblance of being a rational choice, so that self-government makes sense, we must replace plurality-winner primaries with some sort of majority-choice system, so that it is at all reasonable to say that the winning candidate actually represents the will of the electorate.
Second, let’s hope that the closeness of this Oz-McCormick race can help to dispel some of the Big Lie hysteria that’s developed since 2020. Because this is an intra-party race, it can’t be the case that the Democrats are “stealing” the election in the vote-counting process. Let’s see the ballot-counting and vote-verification processes proceed with maximum transparency, to reach an evidence-based conclusion pursuant to the rule of law as to which candidate received the most valid votes. If there are any errors uncovered, they should be corrected according to the previously established rule-of-law procedures, and at the end of the process, the losing candidate should graciously concede defeat. Then, however it turns out, let’s hope that this rule-of-law process can serve as a model for handling any similarly close elections that might occur this November or in 2024.
It is urgent to increase trust in election outcomes. If Pennsylvania can handle this close race properly, it can be an example of how to increase that trust. If the opposite occurs, we are truly in trouble heading into November and then the next presidential election.