Is it too late to avoid a spoiler effect in 2024?

The recent polling by Siena College, in partnership with the New York Times, has highlighted the risk that Robert Kennedy, Jr. will play the role of a spoiler next year–and that’s even without the addition of a potential No Labels candidacy. The polling shows Kennedy with almost a quarter of the vote in the six key battleground states–and also showed that these voters, if faced with only a binary choice between Biden and Trump, would end up voting for one or the other rather than abstaining. As the Times summarized its analysis of the numbers:

“The polls found that he pulled similar numbers of voters from Mr. Biden (21 percent) and Mr. Trump (23 percent), but the percentages varied by state. In narrowly divided contests, Mr. Kennedy could have the potential to swing the outcome. Mr. Kennedy’s presence helped Mr. Biden in Nevada and Pennsylvania, but aided Mr. Trump in Georgia, the polls found.

While Mr. Trump beat Mr. Biden in a two-way contest in Arizona and Pennsylvania, those states were a tie when the polls asked voters to also consider Mr. Kennedy. Mr. Trump’s lead in Georgia increased by a percentage point with Mr. Kennedy in the race, but in Wisconsin, Mr. Biden’s advantage remained the same — two points — when Mr. Kennedy was included.

Given the uncertainty over whether Kennedy hurts Trump more than Biden or vice versa, I wonder whether there is any chance for new laws in these battleground states that would eliminate the risk of a spoiler effect either way. While Ranked Choice Voting would be the most obvious and straightforward way to eliminate the risk of a spoiler effect in the appointment of a state’s presidential electors–as both Maine and Alaska have done–it’s not the only way to do so, as I discuss in my book Presidential Elections and Majority Rule. It would be possible, for example, for states to hold a preliminary general election vote after the conventions but before November (in September, for example), which would have Kennedy and other third-party candidates on the ballot along with the major-party nominees, but then narrow the field to only two finalists for the November vote (in the same way that California does for other offices in its “top two” system). This would be essentially equivalent to how France conducts its presidential elections, in a two-round system, and would give voters the chance to express their preference for Kennedy (or other third-party options) before having to decide between, from their perspective, the lesser of two evils in November.

Another idea, which would be similar to Ranked Choice Voting but not exactly the same, would be to let voters in November indicate both a first and a second choice. If their first choice didn’t win, their second choice would be counted instead. Given the willingness of most Kennedy supporters to indicate a backup preference between Biden and Trump, enabling these voters to cast a ballot expressing this backup preference would go a long way to preventing a spoiler effect from a Kennedy (or other third-party) candidacy.

While it seems hard to imagine that any of the battleground states would be willing to change their laws for appointing their presidential electors in order to eliminate the risk of a spoiler effect next year, the issue is important enough that it is worth pursuing if there is any chance of this reform at all. The idea that a candidate can win all of a state’s electoral votes as a result of winning less than 50% of the state’s popular vote is antithetical to Jeffersonian revision of the Electoral College system adopted in the Twelfth Amendment, as I explain in Presidential Elections and Majority Rule. More importantly, the ability of a candidate to win an Electoral College majority as a result of sub-50% popular-vote victories in one or more states has led to presidencies that have significantly altered the course of history without receiving the kind of majority support from the electorate that the Twelfth Amendment was designed to achieve. For those unfamiliar with the presidential election of 1844 and its consequences, as I was before researching and writing Presidential Elections and Majority Rule, it is a very sobering story–and a warning of what might happen if the winner in 2024 achieves an Electoral College majority only as a result of a spoiler effect occurring in one or more states.

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