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Monday, October 03, 2016

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!

Posted by Edward Foley on October 3, 2016 at 01:03 PM | Permalink


What we need is a concerted movement to get states to use this power in this way.

Ordinal balloting and the alternate vote would be good to employ by default in single-member constituencies, with the Hare system for multi-member constituencies you commonly see in elections to municipal councils and the like.

Another thing which might be instituted in conjunction with the alternate vote would be a registration procedure wherein aspirants would collect contributions from sponsors to place a deposit with the Federal Election Commission or collect signatures from state and local legislators on designating petitions. The party conventions could concern themselves with approving a platform and electing national officers while showcasing their line-up. You could elect delegates over two Saturdays in June and hold the conventions in August and be done with the ugly primary-season circus.

Posted by: Art Deco | Oct 5, 2016 10:53:23 AM

A basic thing about this interesting article is that there were numerous elections, not the two or three those who think about it tend to focus upon, that turned on third party votes. How those votes would actually be applied if there were only two choices or if some sort of alternate voting system was in place is open to question -- that's part of studying history.

But, the NUMBER of cases is what stood out. This isn't merely some quirk.

Posted by: Joe | Oct 4, 2016 10:26:36 AM

As long as we are on the subject, I also wonder about the 1844 election. You assume the Birney's Liberty Party votes would have gone to Clay in New York, thus tipping the electoral college to the Whigs. But if you look at the 1848 election, it seems pretty obvious that the Free Soil votes (now for Martin Van Buren) came at the expense of the Democrats. Of course, Van Buren was a former Democrat, and he got almost ten times as many votes a Birney, but the Whig vote was remarkably consistent in the elections from 1840 to 1848, with or without a third party candidate.

Also, the total votes in New York spiked upward by 46,000 votes from 1840 to 1844, and then fell buy 32,000 votes in 1848, even though two New Yorkers were on the ballot (Fillmore as the Whig VP, and Van Buren for the Free Soilers). This at least suggests that much of Birney's Liberty Party support was from new voters with no alternative party allegiance -- perhaps they were Garrisonians, who typically abstained from voting or other political participation.

Posted by: Steve Lubet | Oct 4, 2016 9:57:16 AM

Very nice point about Debs and TR. Thanks!

Posted by: Edward Foley | Oct 4, 2016 9:25:28 AM

I read your paper, which is very interesting and well done. I do wonder about the following observation, however:

"Interestingly, if 1912 had been a two-person race between Roosevelt and Wilson, Roosevelt would have lost California to Wilson, even though he actually won it. The reason is that Eugene Debs, the Socialist, was a fourth candidate in the race. In California, Debs won almost 80,000 votes. Roosevelt beat Wilson in California by a mere 174 votes. Without Debs in the race, Wilson would have captured much of the Socialist’s support. Since Taft won less than 4,000 votes in California, reducing the race to just Roosevelt and Wilson would have caused California to move to Wilson’s column."

I think you might be looking at this from a present-oriented perspective, in which Socialists (such as Bernie Sanders) tend to favor Democrats. But would most of Debs's votes really have gone to Wilson?

Roosevelt, after all, was a Progressive, and he vied with Wilson for progressive votes. Roosevelt had a decent record (given the times) on labor during his presidency, and I don't believe that Wilson had much of a record at all. Roosevelt was better on civil rights, although it is hard to say how much that would have influenced Debs supporters in California.

Of course, this does not affect your proposal, which is also very interesting.

Posted by: Steven Lubet | Oct 3, 2016 7:26:19 PM

Thanks. FairVote has looked into this issue considerably and concluded that there is no reason to believe that, properly administered, Instant Runoff Voting would deter disadvantaged minority groups from casting ballots: http://www.fairvote.org/rcv#rcvbenefits (scroll to the bottom).

Posted by: Edward Foley | Oct 3, 2016 4:32:21 PM

As usual, I very much enjoyed your presentation at the symposium and learned a lot from it! It's a creative proposal and the data you've gathered is quite revealing. One question that both your presentation and your post brought to mind: to the extent the novelty and/or complexity of your proposal wound up, as an empirical matter, deterring traditionally marginalized, statutorily protected groups from participating in an election, might your proposal run afoul of Section 2 of the Voting Rights Act?

Posted by: Michael T. Morley | Oct 3, 2016 3:02:22 PM

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