Tuesday, October 13, 2020

The Need for Ranked Choice Voting in Presidential Elections: An Essay in Three Parts

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 One: What If Kayne West Were More Organized?

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

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