My article, part of the AALS conference on Rebuilding Democracy and the Rule of Law, is now published. 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.
Apart from reforming the Electoral Count Act, which I wholeheartedly advocate (as ELB readers know well), a new federal law that adopts this majority winner requirement for congressional elections is the reform that I would have Congress make its top election-related priority. Because it would help the Republican Party (as well as the nation as a whole) protect itself from far-right extremism, it ought to be able to secure 10 GOP votes in the Senate along with all 50 Democrats to overcome any filibuster. And because it lets states choose whichever form of majority winner elections they prefer, it’s the opposite of a one-size-fits-all federal micromanagement of how states run elections.
As the primaries in this year’s midterms have unfolded so far, the danger to democracy of plurality-winner elections has only become clearer. Winning a fractured plurality in a primary, then beating the opposition in a plurality-winner general election, is the way extremist candidates can come to power even though a majority of voters in November would have preferred a non-extreme alternative. If we don’t adopt a reform to counteract this problem, Congress soon may become populated with enough “election denialists” willing and able to repudiate the results of future elections that their party loses. Thus, if one is concerned about the risk of election subversion (as one should be), one ought to advocate for Congress to enact a majority winner requirement as the most direct means to safeguard against this threat. Even a well-reformed Electoral Count Act would be vulnerable to manipulation if election denialists control Congress.