[EL] Electoral College & majority rule (in response to Richard Winger)

[Foley, Edward]

Thanks to Richard for taking the time to raise his point.  (His email is copied below.) To be clear, the Politico piece does not advocate a unified national “pre-general election” in September, before the November general election—as might be suggested by the numbers Richard lists (and discusses concerning Trump and Sanders).

Instead, what the piece contemplates is the possibility that one or more states, separately and on their own initiative, might choose to have a September vote, so that only two candidates remain on the November presidential ballot in that state.  If this did occur, it would look very different than the numerical examples that Richard uses.  The two major-party candidates would be on this September ballot in the particular state, by virtue of their nomination at their party conventions and the state’s ballot-access rules for presidential candidates. Likewise, any third-party and independent candidates who qualified pursuant to those state ballot-access rules, like Ross Perot in 1992, Ralph Nader in 2000, or Jill Stein and Gary Johnson in 2016.

A candidate who ran for a party’s nomination but was defeated, like Bernie Sanders (or Ted Cruz) in 2016, presumably would NOT be on the state’s September ballot—either because they voluntarily did not want to take away support from their party’s nominee (even Bernie, having run for the Democratic nomination) or, if necessary, by enforcement of the kind of so-called “sore loser” laws upheld in Storer v. Brown, 415 U.S. 724 (1974), which prohibit candidates who run in primaries for a party nomination to run again in the general election.  (For the purpose of the field-winnowing function, this September vote would be part of the general election process, rather than the primary process, just as would be a runoff that occurred after the November election.)   Thus, the kind of problem that Richard envisions—where the Democratic party nominee and the runner-up for the Democratic party nomination would both be on the September ballot (and thus might be the top two finalists for the November ballot)—would not occur, even limited to a particular state.

To be sure, if a candidate “defects” from their previous party before the primaries, and decides to run as an independent or third-party candidate rather than for their previous party’s nomination—as John Kasich might in 2020—there is a possibility that in one or more states this candidate and the party’s nominee (i.e., both Kasich and Trump) might finish one and two (in either order), both ahead of the other major party’s nominee (the Democrat, in the example of Kasich and Trump).  But this is true whether or not there is a preliminary September vote in advance of the November election, or a runoff after the November general election, or some other mechanism (like Instant Runoff Voting) to determine the majority, rather than plurality, preference of the state’s electorate.

The basic points of the Politico essay remain: (1) no state should give all of its electoral votes to one presidential candidate unless that candidate achieves a majority, rather than just a plurality, of the popular vote in the state, and (2) this “majority rule” principle in how states should appoint their presidential electors accords with how the authors of the Twelfth Amendment wanted and expected their redesigned Electoral College to work.

Even more importantly (at least for purposes of responding to Richard’s concern), a September vote along the lines I describe above in this reply is only one of multiple methods a state may choose in order to comply with the “majority rule” principle.  If for whatever reason you – or a particular state – don’t like the idea of a September vote, even after understanding that it is state-specific and not national in a nature (in the way, again, described above), then there’s no need to choose this particular method.  Instead, you – or the particular state – could opt for using Ranked Choice Voting for the November ballot, as Maine has now done for congressional elections.

I hope these additional thoughts are useful.  Best, Ned

-[cid:image001.png at 01D33ED4.263B5D90]

Edward B. Foley
Director, Election Law @ Moritz
Ebersold Chair in Constitutional Law
Moritz College of Law  
614-292-4288
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Richard Winger <richardwinger at yahoo.com>
Reply-To: Richard Winger <richardwinger at yahoo.com>
Date: Saturday, January 12, 2019 at 12:26 PM
To: "law-election at uci.edu" <law-election at uci.edu>
Subject: [EL] why Ned Foley should not advocate for a top-two presidential election system

Rick Hasen links to Ned Foley's Politico article, which suggests having a September pre-general election to "clear the field of minor party and independent candidates" for the general election.


That system can easily backfire.  In 2016, this is the number of votes received nationwide in all the presidential primaries put together, for the top four contenders:


1. Hillary Clinton 17,121,492
2. Donald Trump 13,757,319
3. Bernie Sanders 13,210,266
4. Ted Cruz 7,452,020

These numbers are from America Votes 2016, pages 55 and 57.  Note the virtual tie between Trump and Sanders.  The system proposed might result in a general election with only two members of the same party on the ballot, and no one else.  The legitimacy of such an election would be utterly nil.  No way would the country stand for a general election for president between two members of the same major party, and no one representing the other major party.

This horrible outcome really did happen in California in 2012 in the 31st US House district, and also in reverse in California in 2018 in the 76th assembly district.  The 2012 US House race in the 31st district was between two Republicans, even though the district is strongly Democratic (it voted only 41% in Nov. 2012 for Mitt Romney, and only 41% for the Republican for US Senate.  The district is majority-minority.  But the voters were forced to elect a Republican in November against their will.  25% of the voters who cast a ballot left US House blank.  That's because 4 Democrats split up the Dem primary vote and the two Republicans came in first and second.

In 2018 the 76th Assembly district, a strongly Republican district, was forced to elect a Democrat, for the same reason.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
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