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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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Need for Ranked Choice Voting in Presidential Elections: An Essay in Three Parts
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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? Edward B. Foley is Ebersold Chair in Constitutional Law and Director, Election Law, at Ohio State
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Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. 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