This paper, entitled Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism, is now in page proofs: 26 Lewis & Clark Law Review 365 (2022). Here’s the abstract:
“Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that anti-democracy extremism currently poses in America.”
The paper was originally presented a year ago, in May 2021, as part of an AALS conference on Rebuilding Democracy and the Rule of Law. The hope then had been that, if the idea caught on, it could have been adopted in time for this year’s midterms. Given what’s already transpired in the primaries, it’s likely that this year’s prominent Senate races (like the ones in Ohio or Pennsylvania) would have been different if states had been required to replace their plurality-winner system with some form of majority-winner rule. For example, if Pennsylvania were using either Alaska or Maine’s versions of Ranked Choice Voting, there wouldn’t be the current recount and fight between Oz and McCormick.
Even though Congress missed the chance to adopt this reform for this year’s elections, it would still be immensely beneficial if Congress adopted it now to take effect for 2024. In fact, watching this year’s races and imagining what might have been if Congress had acted in time, one might develop extra motivation to get this reform in place as soon as possible. The Congress that takes office in January is likely to be much more Trumpy than the current Congress, not only because there are likely to be more Republican members but the Republicans elected are likely to be much more Trumpy than the Republicans they replace. This shift is a product in part of the electoral preferences of the voters, but it is also a product of the system that translates those preferences into officeholders. Ask all Ohio voters, not just Ohio’s GOP primary voters, whether they would prefer J.D. Vance or Matt Dolan as their next Senator. The answer is likely to differ from who Ohio’s next Senator will be, and that’s a function of the system rather than the electorate’s actual preferences.
The Congress that will count the electoral votes on January 6, 2025 will be elected in 2024 (along with the two-thirds of the Senate holding over). If we want still to maximize the chance of that Congress abiding by the law in counting the electoral votes, rather than attempting to subvert the outcome for the sake of partisanship, then we ought to consider a majority-winner requirement as a way to enact a Congress more likely to be law-abiding than a Congress that continues to be enacted under the current plurality-winner system.