Proposed Constitutional Election Amendment

[Bryan Wildenthal]

I offer some responses below to Ann Althouse's very thoughtful posting
(again, thanks very much for the feedback!), interspersed between her
comments (my responses introduced by "BW:......".

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Ann Althouse [mailto:althouse at FACSTAFF.WISC.EDU]
> Sent: Friday, January 26, 2001 6:14 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Proposed Constitutional Election Amendment

> Two weeks is a very small window for the counting and
> recounting that might
> need to be done to determine who gets to be in the run-off.
> Not much time
> for whatever new sort of campaigning and debating that ought
> to take place
> once the race is limited to two--two who would have
> previously been occupied
> fighting off the other candidates. What if during that two
> weeks we don't
> even know who the second candidate is? Could the second and
> third candidates
> strike a deal of some kind? (By the way, the provision for a
> run off is what
> killed off the hard-fought proposed amendment to abolish the EC around
> 1969-1970, when people were very fired up about the role
> George Wallace had
> played in the 1968 election. The alternative of giving the
> election to the
> plurality winner is worse though.)

BW:  All good points.  The gap probably should be stretched longer than 2
weeks, though I would hope that by the time any proposal like this is
approved, we would have ironed out our vote-counting problems.  I think
France allows only a week or two between its first round and run-off.  Note
that my proposal prohibits counting of any absentee votes not available for
counting on election night.  That right there will eliminate a major source
of our current vote-counting delays.

> Note that in your system candidates would have a new,
> heretofore untested,
> motive to jockey for second place.  People might vote
> strategically, or just
> go for the ideologically pure candidate in the first
> election, producing a
> runoff between the extreme right and left candidates,
> depriving us of the
> moderate, who might come in third at first but have been the
> second choice
> of a large majority.

BW:  I would think the candidates would always jockey for as many votes as
they can get.  Presumably, they're all aiming for first place, or failing
that, second place.  True, a candidate might secure a place in the run-off
by appealing to an ideologically "pure" base, but only if they are confident
their base is bigger than the broader tent a competitor might appeal to, and
the ideologically more "extreme" candidate could do that only at peril of
then undermining their chances in the run-off.  In the final analysis, I
think the incentives to "hew to the center line" would remain pretty much as
they are now.  So long as our two-party system endures (which my proposal
does nothing to undermine, see below) I think these troubling scenarios are
unlikely.

Also, you should consider the problem of
> the different
> incentives for candidates to enter the race. A McCain next
> time might say,
> who needs the primary? I'll stay in for the main election. In
> fact, the
> incentives relating to who runs and how they run will be so
> different, that
> risk averse folks are unlikely to bite. Over time, perhaps
> candidates might
> proliferate, the role of the party nomination might lose
> meaning, the state
> party structure could decline, the two party system could
> break down, etc.
> etc.

BW:  I disagree that these consequences would flow from or be encouraged by
my proposal.  A candidate like McCain can already jump ship after losing the
primaries and run in the general.  I see no reason why the two-party
structure would not retain its influence under my proposal.  It's noteworthy
that even in countries where there was a splintered multiparty structure to
begin with (eg, France), presidential runoffs have tended to stabilize and
bipolarize the process.

> What if there are so many candidates that the run-off is
> between candidates
> who got only 10 percent of the vote? Where is the safeguard
> against that?

BW:  See above.  As long as our two-big-party system endures, this seems
very unlikely.  And there would be a strong incentive to preserve the
big-party system, since a big party's nominees would have such a huge
advantage over multiple smaller "splinter party" nominees such as Ann
hypothesizes.  There would be a huge incentive for any two of such "splinter
candidates" to strike a deal and join forces as a ticket.  Indeed, that's
probably why big parties have developed and survived in the first place.

> In addition, I think the Republicans ought to be especially
> adverse to this
> change. The Democrats can hit the big cities where their
> strength lies and
> rack up huge numbers of votes, while campaigning very
> efficiently. Imagine a
> President elected by only the big cities, or only the big
> coastal states,
> especially after a campaign designed to appeal to these
> voters and ignoring
> the rest. It could be very disunifying to the country, just
> the opposite of
> what you might hope to achieve. So I don't think the
> Democrats should want
> to win this way.

> The Republican candidates meanwhile have a more
> geographically spread out
> base, and are disadvantaged needing to appeal to the sparsely
> populated
> areas, a disadvantage perhaps appropriately offset by those
> extra electoral
> votes the small states get.

BW:  I find the above concerns far-fetched.  In the
telecommunications/Internet age, I don't think any major party candidate
will have trouble reaching his or her voters, whether they be rural or
urban.  Such speculative partisan advantages or disadvantages seem very
contingent on uncertain, temporary, shifting circumstances.  I would hope
people would not oppose my proposal on such unreliable grounds.  I pointed
out in my initial posting how the Electoral College has had a demonstrated
potential to unfairly favor either major party in recent times.  Right up
until the Nov. 2000 election, most experts thought that if either candidate
were to win the EC while losing the popular vote, it would be Gore.  They
were wrong, it was Bush.  They will be wrong in the future too, that's the
one thing we can count on. Not too long ago, Republicans had the advantage
in the "concentrated" suburbs, while Democrats held sway in many sparsely
populated rural areas like the Deep South and the Farm Belt.  My proposal
maximizes each party's incentive to reach as many voters as possible
wherever they may be.  What's wrong with that?

> It's a very complex system, and though abolishing the EC has abstract
> appeal, once you start thinking through the complexities, it
> just doesn't
> seem worth the risk. Whatever the problems of the EC, at
> least we have a
> long history of seeing what they are and how bad they are,
> and they aren't
> that bad really. The alternative is only an idea and it would
> remain to be
> seen exactly what that would do in practice.
>
> I know I've said before on this list that I was against the EC--on the
> ground that the President, being only one person cannot
> really channel the
> interests of the states, and so it is different from the
> other federalism
> mechanisms like the Senate--but I now view that as another interesting
> abstraction, part of a number of abstractions that just don't
> offset the
> many real complexities.
>
> Ann

BW:  In the final analysis I think most people will find my proposal
comparatively very simple.  The winner is whoever gets the most votes, with
a runoff if the first-place finisher doesn't get an absolute majority.
That's what it boils down to.  It's the EC that seems creaky and complex.
But complexity isn't the essence of the EC's problems.  It's just an
undemocratic and not-very-sensible way to choose a national leader.

Bryan Wildenthal, Thomas Jefferson School of Law