Follow the French! : The Urgent Need to Rethink America’s System of Political Primaries

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Bruce Ackerman

            Americans confronts a host of problems in their struggle to sustain their democracy in the twenty-first century – from partisan gerrymandering to presidential war-making to …. (I leave it to you to fill in the blank.)   But one big problem has escaped attention: the fact that the two major parties hold separate primaries at which voters choose the Democratic and Republican candidates who will compete for the presidency in the general election.

            This is a big mistake. The two-party primary system is one of the most serious real-world threats to American democracy.  The French organize their election system in a very different fashion – and one that makes it far harder for nationalist demagogues to gain the presidency. [1]

        Call it the “unified primary” system. In contrast to the United States, a wide range of political parties offer up their presidential nominees in a single primary in which all voters cast their ballots. The top two candidates who win the most votes then compete for the presidency at the general election, while the others are eliminated from the final ballot. But the runners-up remain very influential -- since they will mobilize their followers to back the final-candidate whose policies are closer to their own political program.   

            This dynamic of runner-up coalition-formation is a fundamental feature of the unified system, and I hope to persuade you that it would make it much harder for Trumpish authoritarians to win the White House over the coming generation – long after Trump himself passes into history.

            Yet the American primary system gives these Righties and Lefties a disproportionate role in determining their party’s presidential nominees. Many will be attracted by would-be by charismatic demagogues , like Trump, who will pursue an extremist program even when this requires an all-out assault on the Constitution’s  commitment to the separation of powers and the protection of fundamental rights. These “strong” Republicans or Democrats will devote time and energy in grass-roots efforts to “get out the vote” for these Anti-Constitutionalists, as I will call them. 

            In contrast, candidates who make it clear that they will  be respectful of basic constitutional constraints will be in a more problematic position. While some “strong” partisans will support them, they will have to rely more heavily on their “weak” counterparts who may be so alienated by extremist debate that they stay on the sidelines and finally vote for a candidate in the competing primary.  

            Or they may simply refuse to vote in either primary – and let their “stronger” Democrats or Republicans fight it out among themselves. Self-declared “independents” – making up 40% of the entire electorate – will find abstention an even more plausible response.

            To be sure, despite their relative disengagement, Pro-Constitutionalist candidates may manage to gain the mobilized support of independents and weak partisans to propel them to victory over their Anti-Constitutional opponents. Nevertheless, these more principled candidates must contend with the fact that the voter understand their relationship to primaries in a fashion that it deeply rooted in the America political culture by repeated historical practice. They must somehow overcome the tendency of independents and weak partisans to respond to their appeals for support by turning their backs to spend their time on a host of personal matters. To be sure, Constitutionalist candidates may overcome this barrier through a combination of money, marketing, and careers of public service – as Joe Biden managed to do in the Democratic primaries in the last election.  Nevertheless, the ideological fervor of 15% of voters on the left-and-right of the political spectrum suggests that Trump’s triumph at the Republican Convention in 2016 was not a tragic accident, and that the country will not readily regain its constitutional equilibrium even if Biden beats Trump in 2024.

            To the contrary, matters may get even worse in 2028 or 2032 or 2036 or 2040.  Rather than a Moderate Constitutionalist (Biden) facing off against an Anti-Constitutionalist Extremist (Trump), Anti-Constitutional Extremists may win both  party primaries. If this happens, some voters may express their despair by casting ballots for a third-party candidate who stands for constitutional integrity.  

            Yet, as Bush v. Gore reminds us, this response from independent voters can provoke its own terrible crisis – which can readily escalate beyond control in the post-Trump world. After all, both Bush and Gore were not extremists of any kind. They were moderates who were determined to bring to an end the pitched ideological battles between Newt Gingrich and Bill Clinton, culminating in the Republican’s failed impeachment campaign in the Monica Lewinsky Affair.

            Indeed, Ralph Nader ran as an independent precisely as a protest against Gore’s efforts to make the Democrats more attractive to swing voters. Nevertheless, Gore’s centrism, along with Bush’s corresponding moves, led to an extremely close contest on a nation-wide basis – in which Florida’s Electoral College votes would determine the outcome. While Floridians only cast 91,000 votes for Nader, these Leftist ballots deprived Gore of a clear majority – since, according to the official vote count, he had won 2,912,253 votes while Bush had gained 2,912,792 .[3] Gore famously disputed the accuracy of the vote-count, leading to furious litigation on both state and federal levels – which the Supreme brought to an abrupt close by declaring, on December 12^th, that Bush was the rightful winner.

            Yet the Court lacked the time to soberly consider the complex issues at stake, and came to its decision in a blatantly partisan fashion – with the five Justices-appointed-by-Republicans failing to convince even a single one of the four dissenting-Justices-appointed-by-Democrats. This partisan display not only gravely damaged the Court’s legitimacy. It provoked massive street demonstrations in Washington D.C. that dramatized the problematic character of his inauguration on January 20^th.

            Although the Court’s decision played an important role in this profoundly questionable transition of power, the Justices did not have the last word on the matter. Instead, as the tragic events of January 6^th, 2021, have reminded us, it is up to the incumbent Vice President – in this case, Mike Pence – to preside over the Joint Session of Congress that makes the final decision on the validity of each state’s electoral votes. Remarkably enough, Congress met on the very same day, January 6^th, to make the very same decision in 2001. Only this time around, the sitting Vice President was none other than Al Gore himself![4]

            While Pence deserves great credit in rejecting Trump’s demands, Al Gore was well aware that he could use his position as presiding officer to credit his own candidacy with Florida’s electoral votes, and leave Capitol Hill with the aim of entering the White House on January 20^th. After all, nobody disputed the fact that he had won the nation-wide popular vote, and many constitutional scholars argued that the Court’s intervention was profoundly problematic. Nevertheless, if Gore had taken this course, he recognized that he would be required to call upon the Armed Forces to suppress violent street demonstrations by followers of both Bush and Nader denouncing his presidency as a fraud.

            Gore’s self-restraint, in short, represents one of the great moments of constitutional statesmanship in American history.[5] Nevertheless, it would be fool-hardy to expect future Vice-Presidents to follow him down this path if a third-party candidate once again plays a swing role.

            Yet, as the Gallup data suggests, if only the two major-party candidates are serious contenders for the White House, there is a clear and present danger that the Democratic and Republican party primaries will generate a face-off between contenders who not only proudly identify themselves as Left- and Right-wingers, but, like Trump, will use the power of the presidency to destroy the fundamental principles of the American constitution.

            In contrast, the French “unified” primary system greatly reduces this risk – as demonstrated by its operation during the recent presidential election of 2022. During the months preceding the unified primary, three candidates emerged as plausible contenders for the two top spots enabling them to enter the final round that would determine who would become chief executive for the next five years.   

            Emmanuel Macron had the advantages of incumbency as he competed with his rivals. Yet, his popularity had suffered a sharp decline over the preceding year while his leading competitors were gaining ground. During the months preceding the primary,  public opinion surveys were reporting that Macron would win about 25% of the vote, but that both right-winger Marine Le Pen and left-winger Jean-Luc Melenchon would also gain about the same share. The remaining 25% was divided amongst a number of smaller parties taking very different right/center/left/green positions.

            As a consequence, France’s unified primary could plausibly generate three very different scenarios for the run-off election between the final two candidates: Scenario #1, Centrist Neo-Liberal (Macron) v. Rightist Nationalist (Le Pen); Scenario #2:  Centrist Neo-Liberal v. Leftist Egalitarian (Melenchon); Scenario #3:  Rightist (Le Pen) v. Leftist (Melenchon).

            Based on her track-record, however, Le Pen was not only a Right-winger, but would, if elected, engage in an all-out assault on the very foundations of the Fifth Republic. To make this point, Scenario #1 envisions a Centrist Constitutionalist confronting a Rightist Anti-Constitutionalist.

            In contrast, under Scenario #2, if Melenchon gained one of the top spots, voters would choose between a Centrist Constitutionalist and a Leftist Constitutionalist.  Although he advanced a blistering critique of Macron’s neo-liberalism, his Left-wing program was emphatically Social Democratic. To be sure, his key egalitarian initiatives differed significantly from those advanced by American counterparts like Bernie Sanders or Elizabeth Warren. Nevertheless, on both sides of the Atlantic, their Leftist initiatives were compatible with the protection of fundamental rights through a system of checks-and-balances. [6]

            Rather than challenging these principles, Scenario #2 exemplifies them. After all, isn’t the very point of a democratic election to provide citizens with an opportunity to make a choice between two different futures for their country?

            Scenario #3, however, represents the most dangerous of the three options that could have emerged – in which voters would be obliged to choose between Le Pin’s Rightist Anti-Constitutionalism and Melenchon’s Leftist Constitutionalism. In this case, many Centrist neo-liberals might well find Le Pen’s extremist nationalist more attractive than Melenchon’s program of tax-and-spend egalitarianism – at which point they would have to ask themselves another question: Should the Right-winger’s Anti-Constitutionalism nevertheless lead them to vote for the Left, despite their opposition to Melenchon’s radical economic interventions?

            If the answer was No, the Anti-Constitutionalist would win – even though the decisive swing voters remained committed to the fundamental principles of their existing system of government.

            When the French results were announced, moreover, they showed how big a difference its single-primary system could make.

                While Macron won first place in the primary with 28% of the vote, the Anti-Constitutionalist Le Pen only managed to gain the second spot by beating the Constitutionalist Melenchon by 24% to 22%. Given Le Pen’s razor-thin margin, her second-place position depended on a host of contingencies. Suppose, for example, that the unemployment rate had suddenly spiked upward during the campaign season – making Melenchon’s emphatic demand for social justice more salient, and motivating more voters to cast their ballots for the Left. Under that scenario, Le Pen would have had to wait until the next election in 2027 to make another effort to transform the presidency into an engine of constitutional destruction. In other words, her Trumpish assault on democracy would have been beaten back by democratic means. 

            The recent French election, in short, provides real-world credibility to my grim prediction that the American primary system will repeatedly produce an extreme right-wing Republican nominee in future presidential elections. In contrast to France, Right-wing extremists can win a place in the general election without worrying that they will be eliminated by competitors who gain more votes from centrists and leftists. Instead, they must focus their energies on  c “weak” party members in a campaign to convince them to put their bets on their charismatic appeal rather than support a classical conservative constitutionalist. Worse yet, it is perfectly possible that Anti-Constitutional Leftist will successfully pursue the same strategy in the Democratic primary  -- even under circumstances in which  Constitutionalists would gain the two top spots if we followed the French and repudiated the entrenched presuppositions of our present system.               

            I have not gotten to the end of my effort to construct a trans-Atlantic comparative framework. The recent French election dramatizes a second key point in my earlier argument – where I described something I called the “runner-up coalition effect” in abstract terms.

            To observe this coalition-dynamic in operation, consider the fact that only a bare majority French voters chose one of the two top-candidates in the primary: 28% (Macron) + 24% (Le Pin) = 52%. When they cast ballots in the run-off, the other 48% would have to make a decision between candidates that they had initially opposed. Yet only one of the also-rans, Eric Zemmour, had joined Le Pen in advancing extreme right-wing views.  Indeed, his neo-Nazi authoritarianism made Le Pen’s hyper-nationalism seem moderate by comparison. Nevertheless, Zemmour only managed to win 7% of the vote in the primary. Although these extreme extremists would overwhelmingly cast their ballots for Le Pen in the second round, the remaining 41% had either voted for Melenchon (22%) or one of the smaller parties of the center/green/left (19%).  

            Many of these voters despised Macron’s neo-liberalism. Nevertheless, he was the only remaining candidate who could prevent Le Pen from transforming the Presidency into an assault-weapon on democracy. As a consequence, when the polls opened a second time, they had no choice but to stay home or to support Macron’s candidacy – giving him a decisive 18-point triumph over Le Pen, 59-41%.

            This is the point at which my trans-Atlantic comparison provides a distinctive perspective on the efforts by thoughtful American reformers, most notably Larry Lessig, to harness the runner-up dynamic in a constructive fashion. [7]

            The reform proposal that has gained the greatest real-world impact is “ranked choice voting.” In this system, elections are organized to enable citizens to vote for as many as five candidates – marking their order of preference on their individual ballots. If no candidate gets a majority on the initial ballot count, election officials eliminate the candidate who receives the least support from consideration – and the voters who made him/her their Number One choice get their ballots shifted to their Number Two picks on the next tally. This process of elimination continues until one of the remaining candidates finally emerges with a majority of the votes.

            This use of “transferable ballots” makes it more difficult for extreme right- or left-wingers to emerge triumphant – as was recently dramatized by recent election results in Alaska, which adopted ranked choice voting for the U.S. House of Representatives. Before the election of 2022, the state operated under the traditional system under which the candidate with the most votes gained a victory even if he or she did not gain 50% of the total. As a consequence, Republicans had won every federal election since 1964, since their supporters greatly outnumber Alaska’s Democrats.

            This time around, however, two Republicans joined their Democratic opponent, Mary Pelota, in the race. On the one hand, Sarah Palin hoped to propel herself back onto the national scene as Alaska’s spokesman for the Extreme Right; on the other, the more moderate Nick Begich called upon his fellow conservatives to defend fundamental constitutional principles.

            Traditional Republican voters responded by splitting their First Choices nearly in half – with Palin beating Begich by 69,000 to 62,000. This split, however, enabled the Democrat Pelota to emerge at the top of the list, with 129,000 First Choices. Since this amounted to 48% of the total, however, it fell short of the 50% threshold required by the new system. So election officials proceeded to the second round – in which the Second Choices of Begich voters would determine whether Palin or Pelota went to Washington D.C. Unsurprisingly, most of the moderate Republicans who made Begich their first choice ranked Palin second. But enough of them switched to Pelota to enable this centrist Democrat to emerge victorious by a 52-48 margin – effectively ending Palin’s demagogic aspirations.

            This remarkable result gained national attention and is propelling ranked choice voting into serious consideration in lots of places in the United States – and I count myself amongst its strong supporters. Nevertheless, it deals with runner-up choices in a different way than the French.

            Under ranked-choice, voters confront lots of candidates at the general election – and then use their transferable ballots to rank them. Under the French system, voters confront only the two top candidates in the run-off, requiring citizens who voted for defeated candidates in the primary to choose between the front-runners.

             For starters, the French system is easier for voters to understand. At each stage of the process, they simply are asked to identify the candidate who they believe will lead the country in the right direction. In contrast, many Americans  will leave some or all of their Lower Choices blank – either because the entire ranking system leaves them confused or because they don’t know enough about these candidates to assess their relative merits. Moreover, many voters who fill in the blanks be poorly informed as well. Nevertheless, their Fourth or Fifth choices can make a very big difference to the final result.

            This problem is especially serious in presidential elections – in which third –party candidacies will can readily provoke constitutional crises even more dangerous than in 2001 and 2021. Paradoxically perhaps, it is the French system, not our home-grown reform of ranked-choice, which will allow America to escape this predicament.[8]

            But then again, French ideas have often shaped the course of American constitutionalism since the earliest years of the Republic. Isn’t it time to take them seriously once again?           

             I don’t suppose that my brief essay does more than raise this question. But that’s precisely the point of Balkinization, isn’t it?

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University. You can reach him at bruce.ackerman@yale.edu.