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Election Law @ Moritz

Election Law @ Moritz


Election Law Priorities? Fixing Presidential Elections?

On Friday, I was very fortunate to be able to attend, and present a paper at, Fordham Law Review's symposium on presidential elections. Other presenters included Anthony Gaughan, Michael Morley (who is also participating in this month of election law blogging), and (I'm most proud to say) my superb former student Sean Wright (now at the FEC).  I encourage all to you to look at their recommendations for reforming presidential elections, which include eliminating caucuses, adjusting the rules for the party conventions, raising campaign contribution limits, adoption of the National Popular Vote plan, among others. 

My paper, on the need for runoffs in presidential elections, addresses what is sometimes called the "Ralph Nader" problem, because of Nader's role in determining the outcome of the 2000 presidential election, but the point of my paper was to show historically that it is a much bigger issue than many of us realize.  Depending on how one counts exactly, roughly 15-20% of all presidential election (there have been 56 of them) are ones in which a third candidate likely or possibly determined which of the two leading candidates was the one who ultimately won.  That's a much higher percentage than I realized before starting the project, and involved some of our most consequential presidential elections.

 Most of us don't remember from high school history the 1844 election, but that was the one in which James Polk beat Henry Clay only because a third candidate, James Birney, drew votes away from Clay.  Polk, the candidate of "Manifest Destiny" wanted (and, as winner, did) take America to war against Mexico and supported the entry of Texas into the Union as a slave state.  Clay opposed Polk on these crucial issues concerning America's future.  Whichever side you think had the better of the argument, there's no doubt it was one of the most important elections in determining America's future.

Likewise, 1912.  That's the one where Teddy Roosevelt ran against his protege William Taft, the incumbent president, for the Republican nomination.  After losing the nomination to Taft, TR bolted the GOP and formed his own Progressive Party, with his Bull Moose candidacy.  Roosevelt ran second to Wilson, and clearly would have won a runoff, since Taft's supporters (to the right of TR) would have supported TR over Wilson.  Had TR won back the White House in 1912, it is very likely that America's entry into World War One would have been much sooner, and the terms of peace imposed on Germany much different.  (No naive League of Nations idealism from TR, the ultimate realpolitik president in terms of international affairs).  Who knows, but all of world history (no rise of Hitler and World War Two???) might have been very different if TR, rather than Wilson, had won in 1912. 

Who knows how this most bizarre presidential election of 2016 will end up, but it is still conceivable that Jill Stein or Gary Johnson could determine whether Trump or Clinton wins (making this year similar to 2000).  The bottom line is that America lacks a capacity for handling presidential elections in which a third candidate (or more) is a factor in the race. We have lacked this capacity ever since the Electoral College has not functioned as originally intended (which is pretty much right for the beginning).

Fixing this problem is high on my own list of election priorities.  In the paper, I explain that each state already under Article Two has the constitutional power to use Instant Runoff Voting for the appointment of its presidential electors.  What we need is a concerted movement to get states to use this power in this way.  

I'm curious whether others share this view and also what they would list as their top election law priorities. 

Thanks much for inviting me to participate in this month of blogging.  I'm very much looking forward to the exchange of ideas!

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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In the News

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This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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