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Election Law @ Moritz

Election Law @ Moritz


The Vote-Counting Wasn’t Rigged, But is the System Still Flawed?

After the overheated rhetoric during the campaign that the presidential election might be stolen, it is worth pausing for a moment to notice that the nation’s vote-casting-and-counting process delivered a decisive result fairly promptly, considering how close an election it actually turned out to be. As of this writing Wednesday morning at about 10:00 a.m. EST, the margin in Michigan is about 16,000 votes, and may shrink or even flip as a result of the “blue shift” in late-counted ballots. In Wisconsin, the margin is about 27,000, but it too might shrink a bit. New Hampshire is much, much closer, with only about 500 votes separating the two candidates.


Pennsylvania, of course, is not as close, and was the state more then any other signaled Clinton’s ultimate Electoral College defeat. Right now, about 68,000 votes separates Trump from Clinton, and that gap was just too great for Clinton to be able to overcome realistically in the so-called “overtime vote”. Still, 68,000 is not that large a margin in a state that cast nearly 6 million votes (in percentage terms, the margin being a little over 1%).


To be sure, there were some reported problems about the voting process at the polls on Election Day, as well as during early voting. Technological failure affecting electronic poll books in Durham, North Carolina, requiring poll workers to resort to old-fashioned paper backups, was perhaps the most significant glitch of its kind. But the closing time at affected polling places was extended for 90 minutes as a remedy, and there is no serious contention this morning that problems in the vote-casting process caused America’s electoral system to mis-identify the true winner of the election. Certainly, during the next four years, election administrators and the scholars who analyze and assist their work will study long and hard what happened this year, to figure out how to do significantly better next time, especially when the goal of solving the long line problem of 2012 seems to need additional efforts. Even so, as soon as Wisconsin—along with Pennsylvania—looked out of reach, Clinton called Trump to congratulate him on his victory. There was no doubt about his entitlement to over 270 Electoral College votes, based on the tallying of the popular votes in enough states to reach this magic number, and that is how we determine the winner of the presidency election in our particular form of democracy.


Still, the question lingers whether our Electoral College system is the best way to pick a president. In raising this question, I don’t mean to suggest that the winner of the presidency should be the candidate with a plurality of the national popular vote. Whichever of the two major-party candidates, Trump or Clinton, ends up with more popular votes nationwide—and right now it looks like it will be Clinton, in part because the likelihood of her doing well in the late-counted ballots—it seems improbable that either will reach the 50% mark. The question, thus, is whether the system is well-designed when it prevents the winner from being able to claim support from a majority of the electorate.


Over this past summer, while the campaign was underway, I wrote a law review article arguing that American needs some sort of runoff mechanism for presidential elections. It could be a traditional runoff, like the kind of “two-round” system that many other countries, like France, use for their presidential elections.   Or it could be a form of Instant Runoff Voting, like used in some local elections in America and just yesterday approved for statewide elections in Maine. It is also a long-established feature of Australian elections.


This short essay is not the place to review the arguments in favor of using some type of runoff mechanism, instead of simple plurality voting, or sticking with our existing Electoral College system.   Readers can look at the law review article, if they wish. But, upon reviewing the returns from last night, it does seem appropriate to observe that the presence of a third and fourth candidate of significance may have been a factor in the election. What sort of factor, I’m not prepared to say at this point. It is not enough simply to look at the number of votes for Jill Stein, the Green party candidate, and compare that number in key states to the margin of Trump’s victory over Clinton in each of those states. Because Gary Johnson, the Libertarian candidate was also on the ballot (and received more votes than Stein), he may pulled votes away from Trump more than he pulled from Clinton—and more than Stein pulled from Clinton.


Thus, a head-to-head runoff between Trump and Clinton obviously would not be the same as just removing Stein from the equation. But that truth leads to the larger point. It might be that in a head-to-head runoff between just the top two finishers, Trump and Clinton, would show Trump ahead of Clinton with a majority of the runoff votes (again, this could be true using Instant Runoff Voting). If so, then his mandate for governance would be stronger than the position he is in now, apparently trailing Clinton in the popular vote. That would be true whether the runoff mechanism applied to the national popular vote overall, or instead applied on a state-by-state basis to make sure that the winner of each state’s Electoral College votes received a majority—and not just a plurality—of the popular vote in that state.

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


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Info & Analysis

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