Part Three: Why State-by-State Ranked Choice Voting Should Be a Higher Priority Than National Plurality Winners

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

            Part Two explained why a constitutional amendment to elect presidents based on a national popular majority vote would be ideal and why that ideal is unattainable for the foreseeable future. Here’s what to do instead.

Which second-best solution?

            So, as between the two, which is the more important?

            In Let the People Pick the President, Jesse Wegman fervently makes the case for the National Popular Vote. He emphasizes the fundamental unfairness of letting the Electoral College swing states playing such a pivotal role. A vote in California should carry as much weight as a vote in Wisconsin.  Yet California feels like a foregone conclusion, while Wisconsin is so very much in play.

            If Biden loses the Electoral College but wins the national popular vote by an even bigger margin than Clinton did, it is possible that there might enough momentum for the NPVIC finally to reach 270 electoral votes and take effect. Even then, it would be a heavy lift since some purple states (which, by hypothesis, must have given Trump his Electoral College victory) would be necessary to cross the finish line. And of course there would remain the question of whether the Supreme Court would approve the compact’s constitutionality.

            Putting all that aside, however, my prediction is that the compact soon would prove unstable because of the “spoiler” effect associated with plurality-based elections.  As soon as a third-party or independent candidate seriously threatened to deny a major-party candidate a victory achievable through an Electoral College majority fashioned from state-based wins, states in the compact would pull out in order to avoid this “spoiler” effect.

            By contrast, pursuing Ranked Choice Voting on a state-by-state basis is stable reform because it is fully consistent with the architecture and philosophy of the existing Electoral College system. If Florida and Michigan within the next four years were to adopt by ballot initiative Ranked Choice Voting for presidential elections, that reform would simply assure that the candidate receiving all of each state’s electoral votes was the majority, and not just plurality, choice of the state’s voters.  The reform, like the same measure already adopted in Maine, could take effect immediately, without waiting for other states, and it would not fundamentally alter the Twelfth Amendment’s mechanism of aggregating state-based wins into an Electoral College majority.

Of course, it would be better if even more states besides Florida and Michigan adopted this reform in the next four years.  Any state with a ballot initiative process in principle could do it (assuming the Supreme Court does not overrule the Arizona Independent Redistricting Commission case), if the case for Ranked Choice Voting catches on—as it seems increasingly likely to do. It would be a great success if other battleground states, like Arizona and Ohio, adopted this reform, as well as all the reform-minded states already in the NPVIC.

Once enough states using Ranked Choice Voting to appoint their own electors have 270 electoral votes among themselves, then it would be possible for them to consider two additional steps without abandoning their own commitment to majority, rather than plurality, winners. First, these states could join a limited majority-based version of the NPVIC, in which these states agreed to award their electoral votes collectively to the winner of the national popular vote if—but only if—that winner had more than 50% of the NPV.  In this situation, there would be no need for these states to use Ranked Choice Voting to avoid a “spoiler” effect because the NPV winner achieved more than 50% regardless of how many candidates were in the race.  The nature of this version of the NVPIC would be conditional because, if no candidate reached a majority in the NVP, then the states in the compact simply would revert to their own state-based Ranked Choice Voting calculations in order to determine the appointment of the state’s electors.

Second, if states that together have at least 270 electoral votes use Ranked Choice Voting to appoint their own electors, they could agree to pool their Ranked Choice Voting calculations, so that the winner in each state is not the majority choice based solely on the ballots cast in that state, but instead based on all the ballots cast in the states participating in the pool. Initially, the pool would not include all the states, and thus could not calculate a true national winner from the ranked-choice ballots.  But because states within the pool would control the Electoral College outcome, since among them they would have 270 votes, presumably it would create an incentive for other states quickly to join the pool.

 Conclusion

             Given the instability of plurality-based elections because of the “spoiler” problem, the main reform priority before 2024 should be to convince as many states as possible, whether by ballot initiative or ordinary legislation, to adopt Ranked Choice Voting for the appointment of each state’s electors.  Adopting that reform in Electoral College battleground states, like Florida and Michigan, at least would reduce the risk of a candidate, like Trump in 2016, winning an Electoral College majority derived from plurality wins in key states. But if enough states adopt this reform to control 270 electoral votes among them, then it would be possible—either for 2024 or thereafter—to consider combining Ranked Choice Voting with a conditional version of majority-based National Popular Vote.  If a candidate wins a majority nationwide, there would be no need for Ranked Choice Voting calculations; but if not, then these calculations would control the Electoral College outcome because states with majority of electoral votes collectively had adopted the Ranked Choice Voting reform.

Edward B. Foley is Ebersold Chair in Constitutional Law and Director, Election Law, at Ohio State
Moritz College of Law. You can reach him by e-mail at foley.33 at osu.edu