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Election Law @ Moritz


The Electoral Fix We Really Need

The Electoral College winner should be the majority, not just plurality, choice in each state that counts towards those 270 or more Electoral College votes—and this reform is one that every state currently has the constitutional power to adopt on its own.

            As January 20 approaches, and with it the inauguration of the new president, my inbox contains two items that underscore the need for reforming the method by which the nation elects its presidents. The first item is the package of reprints for my recent article, Third-Party and Independent Presidential Candidates: The Need for a Runoff Mechanism, which was a contribution to a symposium held last fall by the Fordham Law Review. The second, and very much related, is an article by Eric Maskin and Amartya Sen in the latest issue of the New York Review of Books, entitled The Rules of The Game: A New Electoral System.

            Maskin and Sen are both Nobel prize-winning economists at Harvard University, who have written, together and individually, leading texts on the mathematical properties of various voting systems. The new Maskin-Sen article is an expansion upon an oped-type piece that these authors wrote in the New York Times last April. I cited that piece in my Fordham contribution, and so it is not surprising that there are significant affinities between their newly expanded article and the Fordham contribution. But now that the 2016 presidential election is finally over, it is worth highlighting these common points and their implications for the future.

            First, a major point made by both Maskin-Sen and the Fordham piece is that the nation’s existing system for presidential elections does not adequately handle the existence of third-party or independent candidates. Maskin-Sen cite the familiar “spoiler” role that Ralph Nader played in 2000, “attract[ing] nearly 100,000 votes in Florida, mostly at Al Gore’s expense, giving George W. Bush the presidency.” My Fordham article, extending beyond this one example, reviews the totality of presidential elections to identify the large number of instances—over ten percent, including most significantly Theodore Roosevelt’s “Bull Moose” run as the Progressive Party candidate in 1912—in which the presence of a third-party or independent candidate likely determined which of the two major-party candidates won the White House.

            In the end, was 2016 an election of this type? Did Jill Stein’s candidacy cause Donald Trump’s victory in the Electoral College over Hillary Clinton? That’s debatable. Jill Stein did receive more votes in each of the three states crucial to Trump’s Electoral College victory—Michigan, Pennsylvania, and Wisconsin—than the final number of votes by which Trump defeated Clinton in those states (as shown in this table).

But we do not know whether, if Jill Stein’s name had not been on the ballot in these three states, her voters would have voted for Clinton instead—or at least enough of them to put Clinton ahead of Trump in all three states, thereby changing the outcome of the election as a whole. Stein’s voters might have stayed home instead of voting for Clinton. Indeed, given the narrow gap in Pennsylvania between Stein’s vote (49,941) and Trump’s margin of victory (44,292), it seems doubtful that Clinton would have ended up with more votes than Trump in Pennsylvania if Stein had not been on the ballot there.

Moreover, Stein was not the only third-party candidate in 2016. Gary Johnson was the Libertarian candidate, and he got substantially more votes than Stein in all three of these pivotal states: 172,136 in Michigan; 146,715 in Pennsylvania, and 106,674 in Wisconsin. Given that Johnson was formerly the Republican governor of New Mexico (and his running-mate, Bill Weld, formerly the Republican governor in Massachusetts), it is at least conceivable that Johnson pulled more votes from Trump than Stein siphoned for Clinton. If we are going to be intellectually honest in analyzing the possibility that Stein as a third-party candidate may have made a difference in the outcome of the election, then we must equally consider the possibility that Johnson’s presence as another third-party candidate may have neutralized (or even more than offset) Stein’s role in this respect. If we are honest, we must acknowledge that we just don’t know what the result would have been if Trump and Clinton were the only two names on the ballot in Michigan, Pennsylvania, and Wisconsin—or indeed, in other close states, including those like New Hampshire that Clinton won—when voters went to the polls on November 8, 2016.

But this uncertainty is itself significant. It indicates the deficiency of our nation’s existing electoral system, pursuant to which we cannot be sure that the candidate who won a majority of Electoral College votes was supported by a majority of citizen-voters on November 8 in each of the states that make up that candidate’s Electoral College majority. The problem, as Maskin and Sen observe, is not just that Clinton won 2,864,974 votes than Trump nationwide. Even if we believe that the Electoral College appropriately reflects federalism values in allocating each state the same number of Electoral College votes as its combined number of Senators and Representatives in Congress—so that Michigan has 16, Pennsylvania has 20, and Wisconsin has 10 (and so forth)—the real problem with the results of 2016 presidential election is that Trump received only 47.3% of the vote in Michigan, only 48.6% of the vote in Pennsylvania, and only 46.5% of the vote in Wisconsin. A majority of voters in each of these three pivotal states—crucial to Trump’s win in the Electoral College—voted against Trump and for another candidate instead.

To be sure, Clinton won only 46.4% of the vote in Minnesota, 46.8% of the vote in New Hampshire and only 47.9% of the vote in Nevada, to take three states for which she received all of their Electoral College votes. But two wrongs don’t make a right. It just means that, for many states, we cannot be confident that the candidate who actually received the Electoral College votes from the state was the candidate who would have received the state’s Electoral College votes if the rules required that a candidate obtain a majority of citizen-votes when compared head-to-head against another candidate using some sort of runoff procedure to select a winner when the list of candidates on the November ballot numbers more than two.   In other words, the wrong candidate may have received the Electoral College votes in each of these states, insofar as there may have been another candidate on the ballot whom the majority of participating voters actually preferred at the time they cast their ballots over the candidate who was awarded that state’s Electoral College votes.

This observation about the deficiency of existing electoral rules leads to another key point made by both Maskin-Sen and my Fordham article. There exists an alternative electoral mechanism that would remove this deficiency and the uncertainty it causes. In other words, we could have used an electoral mechanism in 2016 that would have told us definitively whether Stein’s being on the ballot (and/or Johnson’s) affected whether or not Trump prevailed over Clinton.

This alternative electoral mechanism would have given each voter the option of ranking candidates in addition to their first-choice candidate. It would have been an option, not a requirement. Thus, a Stein voter could have ranked Clinton as a second-choice—or not, as that particular Stein voter preferred. Likewise, a Johnson voter could have ranked Trump second, or not, or even ranked Trump second and Stein third, to make clear than Clinton was that voter’s last choice for president.

When using ballots that enable voters to provide this kind of optional ranking, there are somewhat different mathematical methods of aggregating the various preferences expressed by the voters into a single composite result. My Fordham article advocated the use of one of these mathematical methods, often called Instant Runoff Voting. As this name implies, this mathematical calculation works by eliminating the candidate with the least number of first-place votes, identifying the second-choice candidates of those voters who most preferred this eliminated candidate, and then redistributing these second-choice voters to the remaining candidates to see if now one of them is preferred by a majority of voters. If not, the next least-preferred candidate is eliminated using the same redistribution procedure, and so on, until one candidate obtains a majority of votes.

Instant Runoff Voting is used in some big-city elections around the country (including San Francisco and Minneapolis), as well as for legislative elections in Australia. Maine just adopted Instant Runoff Voting for most of its elections (although, regrettably, not its presidential elections). Maskin-Sen embrace the desirability of Instant Runoff Voting, especially in comparison to the existing deficient system, although they favor a different mathematical method for aggregating the voter preferences expressed on ranked-choice ballots. Their favorite mathematical method is often called Condorcet calculation, after the eighteenth-century French philosopher who first advocated it.

Condorcet calculation looks at the rankings indicated on each voter’s ballot and uses them to compare each candidate against every other candidate in series of head-to-head matchups. Thus, with Trump, Clinton, Johnson, and Stein all on the ballot (among other candidates), a computer could examine each voter’s ballots and then determine overall all whether voters prefer Trump to Clinton, Trump to Johnson, Trump to Stein, Clinton to Johnson, Clinton to Stein, and so forth. If one candidate beats all others in this series of head-to-head matchups, that candidate is known as the Condorcet winner.

As Maskin-Sen acknowledge, the Condorcet method is imperfect insofar as sometimes, at least theoretically, there will be no Condorcet winner who is capable of being identified as prevailing over all others in the series of head-to-head matchups. Imagine an election with three candidates: Rock, Paper, and Scissors. Scissors beats Paper, Paper beats Rock, and Rock beats Scissors. While each individual voter’s ranking of candidates won’t be cyclical in this way, it is possible that the electorate’s rankings as a whole have this cyclical character when aggregated using the Condorcet calculation. As a remedy for this defect, Maskin-Sen suggest that Instant Runoff Voting could be used in those situations where no Condorcet winner is identifiable. (As a mathematical method, Instant Runoff Voting always produces a single identifiable winner, and thus does not suffer from the same imperfection.)

Usually, the winner as calculated by Instant Runoff Voting is also the same candidate as the Condorcet winner—a point stressed by Rob Richie, the executive director of FairVote.org. Thus, as a practical matter, it would make little difference whether a government adopted Condorcet calculation with Instant Runoff Voting as a backstop in the rare circumstance that no Condorcet winner is identifiable, as Maskin-Sen recommend, or instead adopted Instant Runoff Voting as the government’s electoral procedure. Indeed, if Instant Runoff Voting is adopted as the rule, with the sole exception being the rare instance in which a Condorcet winner is identifiable but would not be the candidate chosen by Instant Runoff Voting—in which case the Condorcet calculation would supersede Instant Runoff Voting—then this use of Instant Runoff Voting would be exactly equivalent to the Maskin-Sen recommendation.

The key point, at least for present purposes, is not to quibble over either the relative merits of Instant Runoff Voting and Condorcet calculation or operationally the exact relationship between these two mathematical methods. Instead, the key point is that both are vastly preferable to the existing electoral system because both (especially if used in combination as described above) enable the identification of the candidate whom the majority of voters prefer when compared to any other potential runner-up candidate also on the ballot at the same time. Moreover, as both Maskin-Sen and my Fordham article explain, if this kind of ranked-choice ballot had been used for the 2016 presidential election, then we would have known definitively whether Trump or Clinton would have been preferred by a majority of voters in each state if the electorate’s choice was just between the two of them.

(The website Vox commissioned an analysis of the 2016 presidential election that purports to show that Clinton would have beaten Trump using either Instant Runoff Voting or Condorcet calculation. In my judgment, however, this analysis is not particularly relevant for two reasons: one, it relies upon a post-election public opinion survey, not actual election results; two, it purports to analyze the overall nationwide outcome between Clinton and Trump under these alternative electoral methods. But, as discussed above, the constitutionally relevant question given the Electoral College is how Clinton and Trump would have fared on a state-by-state basis if voters had been given ranked-choice ballots and then those rankings had been aggregated using either Instant Runoff Voting or the Condorcet method. If that had happened, or if we could confidently reproduce what the state-by-state results would have been in that situation—which, as far as I know we cannot do despite the Vox analysis—then we would know whether or not Trump was the majority’s choice in the states that gave him his Electoral College victory.)

This kind of ranked-choice ballot not only provides the definitive determination of the majority’s preference, which democracy deserves, but also enables a robust multiplicity of candidates without them causing problems. Jill Stein, or Ralph Nader, or Teddy Roosevelt in 1912, can occupy a spot on the ballot—giving voters a wider array of options—without any deleterious distorting effect. When a ranked-choice ballot is used, a vote for Stein in no way undermines the capacity to determine the electorate’s relative preference between Trump and Clinton. The same point applies to a vote for Nader and the electorate’s relative preference between Bush and Gore. And so forth.

This observation leads to another: it’s not just “fringe” candidates, like Jill Stein, who can be added to the ballot without adverse consequences. It is also moderate, mainstream candidates who voters might prefer to the two major-party nominees, particular if as in 2016 the two major parties happen to nominate candidates who are highly unpopular with broad swaths of the electorate. Both Maskin-Sen and my Fordham article invoke the example of Michael Bloomberg: a mainstream moderate who potentially might have been competitive against both Trump and Clinton, but who decided against entering the race for fear of drawing more support from Clinton than Trump. With a ranked-choice ballot, Bloomberg could have run without this worry. Any voter who preferred Bloomberg to Clinton, but who also strongly preferred Clinton to Trump, could have made these rankings known, and Bloomberg would have won if enough voters preferred him to both Clinton and Trump; but otherwise Bloomberg’s presence in the race would not have affected any voter’s relative preference between Clinton and Trump—and thus Clinton would have beaten Trump as long as more voters preferred her to him in enough states to equal or exceed 270 Electoral College votes (as may have been the case, although we cannot be sure for the reasons already explained).

Finally, the most important point made by both Maskin-Sen and my Fordham article is this: under the Constitution as it currently exists, any state has the power to adopt ranked-choice ballots to determine which candidate wins the state’s Electoral College votes. There is absolutely no need for a constitutional amendment to adopt this highly beneficial change.   And while it would be most desirable if all fifty states made this move (just as it was desirable a century ago for all states to make the decision to adopt the secret Australian ballot), there is no need for the states to act in concert. Any single state on its own could gain the benefit of adopting ranked-choice ballots for the allocation of its Electoral College votes, even if no other state makes the same move. That situation would be analytically equivalent to one state choosing to adopt all-mail balloting, as Oregon did, without waiting for other states to adopt this electoral innovation. (In making this comparison, I’m not taking a position on the wisdom of all-mailing balloting; instead, I’m only making the point that as a matter of constitutional power Oregon was perfectly entitled to do this on its own as its method of conducting its participation in presidential elections, even as other states continued to use traditional Election Day polling places.)

There is thus no doubt whatsoever about the current authority of each state, entirely on its own initiative, to adopt ranked-choice ballots to determine which candidate wins the state’s Electoral College votes. Under Article Two of the Constitution, each state’s legislature can choose the manner of appointing that state’s presidential electors. It would be an exercise of this unquestionable constitutional power for a state legislature to enact a law providing that the state’s presidential electors will be those pledged to the candidate who is the choice of the majority of voters as determined using ranked-choice ballots—rather, as current law provides, being those pledged to the candidate who is merely preferred by a plurality of voter. (This change in state law wouldn’t address the issue of so-called “faithless electors,” who deviate from the candidate to whom they are pledged. But as the 2016 election demonstrated, even when the major-party candidates are as unpopular as Trump and Clinton were, the risk of “faithless electors” changing the Electoral College outcome is extraordinarily remote.)

            It is greatly regrettable that states did not adopt this electoral change previously. But as there is no constitutional obstacle to their doing so, we can only hope that they muster the political will to make this change sometime soon—preferably before 2020. For anyone concerned about the health of American democracy in the aftermath of the 2016 presidential election, this reform is worth rallying around. Given the power of the presidency, and thus the importance of the office, we should make sure that the candidate who wins the Electoral College is the one actually preferred by a majority of voters in each state necessary for that Electoral College victory.

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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