E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It is
widely believed that 2020, unlike 2016, will be a genuinely two-party race,
with no third presidential candidate being a factor in the outcome. That may
indeed prove true, despite the presence on the ballot of the Libertarian and
Green Party candidates in all and most states, respectively—and despite Kanye
West’s mercurial bid to get on the ballot rather belatedly.
But it doesn’t take much for a third
candidate to be a “spoiler,” to use that somewhat unfortunate yet nonetheless
essentially accurate term. Kanye is on the ballot in Minnesota, a potentially
pivotal state in achieving an Electoral College majority, and [as this essay
was drafted] he may still get on the ballot in Wisconsin because of ongoing
litigation there.If either or both of
those states ends up being exceptionally close, as is possible, Kanye
conceivably could make the difference.(The Green Party lost its separate fight to get on Wisconsin’s ballot,
where its share of the vote in 2016 was greater than the margin between Trump
and Clinton.) Just ask Al Gore about the possibility of a third candidate on
the ballot, like Ralph Nader, being decisive in who wins or loses a critical
state for reaching 270 electoral votes.Better yet, dust off a history book and read about the spoiler effect of
a third-party candidate in 1844 election, one of the most consequential.
The situation, however, would be
much different if Kanye had started sooner or organized his ballot-access
effort more effectively. Maybe it is in the nature of a candidate of the
self-described “Birthday Party” that it was destined to be disorganized and
error-prone in campaign basics. But just imagine if Kanye, being a billionaire,
had used a portion of his net worth to put together a professional
campaign.Then he likely would have been
on the ballot in all fifty states (and D.C.) and, just as importantly, would
have been saturating television and digital platforms with polished
messaging.He might never have become
the Ross Perot of 2020, but he easily could have threatened to match or even
exceed 2016’s combined third-party total of about 6% nationwide (and even a bit
more, 6.7%, in Wisconsin).Whether or
not Gary Johnson and Jill Stein actually functioned as “spoilers” in 2016, a 6%
vote for Kanye in states with 1-2% margins between Trump and Biden
(hypothetically) would at least raise the question.
The point is a broader one. Kanye is
not the only billionaire who flirted with a third-party run this year. Michael
Bloomberg considered the idea, but didn’t want to be a spoiler, and thus ran
unsuccessfully (spectacularly so) for the Democratic nomination.Howard Schultz, the Starbucks ex-CEO, also
explored the possibility, triggering a major Democratic Party freakout given
the risk that he would have siphoned off a sizable portion of the anti-Trump
vote.Less well-known is the fact that
Ed Stack, the CEO of Dick’s Sporting Goods, also put his toe in the water
before deciding against taking the plunge.
Presidential elections should not
depend on the egos of billionaires.Any
one of these billionaires could have completely transformed the nature of the
race, purely out of personal vanity.Kanye arguably is attempting to do so and, although the odds seem slim,
might still end up doing so despite his inept moves so far.This is not to say that billionaires should
be barred from running.That would be
unconstitutional under existing Supreme Court precedent.It’s just that the system should not be so
fragile that the entry—or not—of a billionaire vanity candidate has the
potential to determining the outcome of the race between the two major-party
candidates.That suggests an irrationality,
or at least arbitrariness, to the presidential election process that is
inappropriate for picking the so-called “leader of the free world” and,
moreover, seems fundamentally antithetical to the idea of popular
sovereignty.After all, if the outcome
is the product of the single billionaire’s personal choice, then it hardly can
be said that the electorate collectively determined the outcome.
There is also the concern that the
motivation for a billionaire’s independent candidacy is not merely personal
vanity, although that might be bad enough.Instead, the entry into the race may be intentionally designed to serve
as a kind of “stalking horse” for one of the two major-party candidates,
purposefully siphoning off voters from the preferred candidate’s opponent.Without going into all the details, evidence
has emerged to indicate that Kanye’s candidacy is intentionally aimed at
benefiting Trump by hurting Biden, and there even has been some coordination
between GOP operatives and Kanye’s team in an effort to position Kanye so that
he can damage Biden.This move is hardly
the first of its kind in the history of American politics, but it seems
exploitative of vulnerabilities in the structure of electoral competition for
one of the two major-party candidates to deliberately add another candidate to
the field in an attempt to prevent losing a straight two-candidate race against
one’s major-party opponent. This kind of manipulation of the electoral
competition seems problematic enough, even without adding the
possibility—voiced by Hillary Clinton—that Russia (or other foreign
adversaries) might attempt to manipulate America’s electoral process in this
way, presumably by helping to support a third-party or independent bid that
otherwise would not occur (or gain sufficient traction to make a difference).
America’s electoral system has long
been vulnerable to this kind of manipulation. In fact, if one goes back to the
presidential elections of the Gilded Age, one finds examples of races in which
each major-party candidate was flanked by a stalking horse.For example, in 1884, the Democrats were hurt
by the Greenbacks, and the Republicans by the Prohibitionists.Something similar happened again in 1888.Given that the political and economic
conditions of today mirror to some extent those of the Gilded Age—with intense
partisan polarization and wealth inequalities—perhaps it is not surprising if
electoral competition today suffers from some of the same pathologies that
occurred back then.But that historical
precedent doesn’t make the current situation any less problematic.
What to do?
Part Two will consider the
ideal solution and why, unfortunately, it is unattainable at least for the
foreseeable future.
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