05 February 2021

Can Election Law Reform Keep Crazies Out Of Office?

Timothy Egan writing an opinion piece in the New York Times, argues for a change in the primary process that favors moderates over extremists with a top two primary system where all candidates appear on a single ballot in the first round and the top two finishers (even if of the same political party) advance to the second round.

This is one option, and for all practical purposes, it eliminates the role that political parties play in nominating candidates for political office entirely. 

The alternative would be to go in the completely opposite direction, for which England is a prototypical example, in which party insiders, rather than the party rank and file in a primary election, interview, vet and decide upon which candidates to run in an election, giving political parties complete control over their nominees whom they generally screen on a variety of criteria similar to those in a hiring decision which keeps out crazies by a very different mechanism.

The English system, like all parliamentary systems, also means that the individual within the party who will serve as Prime Minister for the country if their party (possibly in coalition with other smaller parties) secures a majority in parliament is chosen by their elected legislator peers within their party (and can be quickly removed by those same peers if the person they select goes off the rails, or by the legislature as a whole if enough members of the ruling party defect to cause it to lose its majority), rather than having a national head of government selected by the general public as countries with strong President systems do.

Eagan makes his case for stripping parties of the power to nominate as follows:
The two Republican House members from Washington State who voted to impeach former President Donald Trump will not only survive their next election but do even better in 2022 than they did last year. . . . 

They will win because Washington is one of the few states where voters have designed a method to keep extremists from both parties on the fringe of politics. It’s something the rest of the country could learn from.

In other words, how can we save the Republican Party, now in the midst of a fight over its confused and darkened soul? Take it away from Republican Party activists and give it to the people. We already have a way to make it work.

Hear me out. In Washington, along with California, the top two vote-getters in a congressional primary, regardless of party affiliation, advance to the general election. Sometimes two Democrats make the final. Sometimes two Republicans. Often, it’s one of each, with partisan zealots left out. . . .

In a top-two primary system, Ms. Herrera Beutler will almost certainly make the runoff, even if another Republican gets more Republican-leaning votes in the primary. But in the general, she’ll pick up independents and many Democrats, as she did in the past. She won by 13 percentage points last November, in a district that Mr. Trump carried by 4 points.

Removing the leverage to knock out Ms. Herrera Beutler in the primary allows her to be more accountable to her constituents than to her party. Little wonder that she’s also a member of the bipartisan Problem Solvers Caucus.

Mr. Newhouse has already survived an attack from the far right, in 2014, when he got only 26 percent of the primary vote, versus 32 percent for the right-winger. Still, that was enough to make it to the November election, where he beat the extremist with the help of Democrats and independents. He has won by wide margins since then.

Kim Wyman, Washington’s Republican secretary of state, said the top-two (or four) open primary system encourages higher turnout and promotes candidates with a broader reach. “You have to appeal to a wider group of voters than your base,” she told me. “For a lot of states, this is a radical concept — giving voters the choice and the power.”

With top-two primaries, the incentive is actually to take more risk; the more voters you appeal to of all political stripes, the better your chance of winning office.

The downside of the top-two system is that it might leave, say, a majority-Democratic district without a Democratic candidate in the general election. If something like a half-dozen Democratic candidates were to split the primary vote equally, it could allow two Republicans to get just enough to make the general.

In that instance, one-party choice can mean no choice for the party left off the general election ballot. This system also makes it very hard for minor-party candidates to advance.

The parties hate this system. Which is why all three states that have these types of races had to do it by vote of the people. (In November, Alaskans voted in favor of top-four primaries. Nebraska has top-two primaries for state legislative races.)

In a heavily one-party state, this system probably wouldn’t save a profile in courage. Representative Liz Cheney, now under ferocious attack by Trumpers in Wyoming for her vote to impeach, might be doomed in a state that Mr. Trump took by 43 points.

But such primaries could protect Representative Dan Valadao of California, another one of the 10 Republicans on the side of impeachment. President Biden carried his district, but Mr. Valadao attracted enough votes from both sides to win.

Ballotpedia sums up the different options:

In general, there are two broad criteria by which primary elections can vary from jurisdiction to jurisdiction: 
Terms of participation: In jurisdictions that conduct partisan primaries, who can vote in a party's primary? Is participation limited to registered party members, or can other eligible voters (such as unaffiliated voters or voters belonging to other parties) participate? In general, there are three basic types of primary election participation models: open primaries, closed primaries, and semi-closed primaries.

Methods for determining the election's outcome: What share of the total votes cast does a candidate have to receive in order to advance to the general election? Methods for determining primary election outcomes include plurality voting systems, majority voting systems, and top-two primaries.

Terms of participation

The terms of participation in primary elections vary from jurisdiction to jurisdiction (and, sometimes, within a jurisdiction; different political parties may enforce different participation criteria). In general, there are three basic primary election participation models used in the United States:

Open primaries: An open primary is any primary election in which a voter either does not have to formally affiliate with a political party in order to vote in its primary or can declare his or her affiliation with a party at the polls on the day of the primary even if the voter was previously affiliated with a different party.

Closed primaries: A closed primary is any primary election in which a voter must affiliate formally with a political party in advance in order to participate in that party's primary.

Semi-closed primaries: A semi-closed primary is one in which previously unaffiliated voters can participate in the primary of their choosing. Voters who previously affiliated with a political party who did not change their affiliations in advance cannot vote in another party's primary.

Methods for determining the election's outcome

Methods for tallying votes to determine a primary election's outcome include the following:

Plurality voting system: In plurality systems, the candidate who wins the largest share of the vote wins the election. The candidate need not win an outright majority to be elected. These systems are sometimes referred to as first-past-the-post or winner-take-all.

Majority voting system: In majority systems, a candidate must win more than 50 percent of the vote in order to win the election. In the event that no candidate wins an outright majority, a runoff election is held between the top two vote-getters. For this reason, majority systems are sometimes referred to as two-round systems. Ranked-choice voting is a specific type of majority voting system that may also be used in primary elections.

Top-two primaries: A top-two primary is one in which all candidates are listed on the same primary election ballot; the top two vote-getters, regardless of their partisan affiliations, advance to the general election. Consequently, it is possible that two candidates belonging to the same political party could win in a top-two primary and face off in the general election. 
A top-two primary should not be confused with a blanket primary. In a blanket primary, all candidates are listed on the same primary ballot; the top vote-getter from each party participating in the primary advances to the general election.
Primary election systems used in Washington

In 22 states, at least one political party utilizes open primaries to nominate partisan candidates for congressional and state-level (e.g. state legislators, governors, etc.) offices. In 15 states, at least one party utilizes closed primaries to nominate partisan candidates for these offices. In 14 states, at least one party utilizes semi-closed primaries. In two (California and Washington), top-two primaries are utilized.

Washington utilizes a top-two primary system. In a top-two primary system, all candidates are listed on the same ballot. The top two vote-getters, regardless of their partisan affiliations, advance to the general election. Consequently, it is possible that two candidates belonging to the same political party could win in a top-two primary and face off in the general election. Any registered voter may participate in the primary and vote for any candidate, regardless of his or her partisan affiliation.
A variant of a top-two primary is a top-four primary (which will much more often lead to runoff elections after the general election):
A top-four primary is a type of primary election in which all candidates are listed on the same primary ballot. The top four vote-getters, regardless of their partisan affiliations, advance to the general election. Consequently, it is possible for four candidates belonging to the same political party to win in a top-four primary and face off in the general election.


Michael Malak said...

I'm surprised puncturing the veil of political parties, as in Washington state, does not violate First Amendment freedom of association.

It would be more constitutional to have all political parties to be private and then have ranked-choice voting in the public election.

andrew said...

In many ways the entrenched system of state run partisan primaries is more violative of the freedom of association. This gives two political parties an institutional preference and state subsidy over other political parties.

We know, as a matter of the experience of comparative politics and history, that even if we didn't have state run or state sponsored partisan primaries that a single member district plurality voting system would still produce two dominant parties in any given geographical area within two to four election cycles. So, the bias induced by state run partisan primaries isn't as bad as one could reasonably hypothesize in terms of being the cause of our very strict two party system in the U.S., and the partisan primary system is one way to reduce spoiler effects.

But the Washington/California style two round system (and requirements for majorities to win a first round in Louisiana, Georgia, and single member district elections in Denver municipal elections, for example) in which there are not partisan primaries sponsored by the state, are neutral between major and minor parties.

It wouldn't be a stretch at all to restore to political parties the ability to actually control who runs as a candidate with their partisan label in a meaningful sense, in a Washington/California style system, since this could be done without shutting out candidates who fail to receive party endorsements. This is something that political parties in states with partisan primaries are denied, particularly open or partially open partisan primaries where one votes in either a Democratic Primary or a Republican Primary but doesn't have a choice of all nominees from all parties in a first round of voting.

If the party establishment controlled who was allowed to control who ran under the banner of their own political parties, neither Bernie Sanders, nor Donald Trump, would have ever been a major party nominee. Bernie Sanders actually ran for office as a Socialist, even though he caucused with the Democrats in Congress, until he ran for President. Donald Trump vacillated between the Democratic Party and the Republican Party prior to running for President and was disfavored by establishment Republicans pretty much until he had the GOP nomination secured (in significant part because the establishment GOP was divided rather than rallying around one candidate) in mid-2016.

In a California/Washington style system, it is very plausible that Bernie Sanders or Donald Trump, or both, could have still made it onto a final general election ballot, even so. But either of them would have been running as third-party candidates or independent candidates, in the tradition of candidates like Ross Perot, rather than as candidates of the Democratic and Republican parties respectively.

An open top two primary, while it is not exactly equivalent to ranked choice voting, (also known as instant runoff voting), is very similar to it. Both systems greatly reduce the systemic penalty involved in running as an independent or third-party candidate and the spoiler effect, and both allow people whose preferred candidate is not a top two candidate in the first round to express a second choice. In ranked choice voting, the second choice is expressed at the same time. In a top two primary system, the second choice is expressed in a second round of voting.

andrew said...

I personally favor systems with some form of runoff to ranked choice voting/instant runoff voting, because I believe that voters who are forced to make a second choice do a better job of it when that second choice is made in a second round of voting, because (1) the average person is less good at making a hypothetical second choice than they are at making a first choice in a second round of voting, (2) making only a first choice in each round requires less research for an average voter than making a series of two or more ranked choices, and (3) because making a second choice in a second round of voting that is between only the top two candidates improves the quality of the decision making that takes places in making the second choice since there are fewer candidates to research and a more clear choice and because the additional campaigning that is done in the second round (knowing how other first round races contribute to the overall impact of the decision as in the case of the Georgia runoff elections this year) improves the quality of the decision-making. I think that these considerations outweigh the usual reality that second round voter turnout is usually lower than first round voter turnout (although by less than one might think because runoff elections are almost always elections in which the second round voter feels that he or she can make a difference in the outcome and that encourages turnout).

andrew said...

The importance of access to information about candidates and ballot issues in elections is greatly underestimated in the collective series of decisions that has led to our currently incredibly long ballots. My general election ballot in 2020 had 47 distinct choices. Moreover, the general election ballot was preceded by (in chronological order): (1) a Presidential primary ballot, (2) a non-Presidential partisan caucus, and (3) a partisan primary ballot which I think also had a small number of non-partisan ballot issues on it.

Furthermore, since I live in Denver which has a consolidated City and County government that has its elections in the spring, rather than in the fall, there is an additional round of municipal elections (usually with some runoff elections) every two year election cycle, and these are also sometimes accompanied by ballot issues. And, of course, we get ballot issues and non-partisan school board elections in odd numbered years. Outside of the City and County of Denver, most local governments hold their partisan county elections for myriad officers that aren't elected offices in Denver at the same time as the even numbered year, November, general election for state and federal offices, and have caucuses and primaries for county as well as state and federal partisan offices as well. Small counties, at least, have fewer judicial retention elections for county and district courts, than urban counties. But El Paso County, for example, has just about as many judicial retention elections each cycle as Denver, despite having county offices on the ballot as well. Moreover, unlike Denver, most Colorado municipalities hold their (usually) non-partisan city elections at the same time as the November general election, although sometimes in odd numbered years along with school boards, rather than in even numbered years when Governor's races or Presidential races, Congressional races, U.S. Senate races (two times out of three) and state legislative races crowd attention away from municipal races.

Some of the county and state partisan races are for offices that simply shouldn't be decided in partisan elections like county surveyor, county corner, county treasurer, county clerk, county assessor, state treasurer, and secretary of state. Having elections run by partisan elected officials, for example, is pretty much the worst possible idea. Judicial retention elections are likewise a farce, because only a tiny fraction of the public has enough information to make good choices even with the blue book, because recommendations on retention by the blue ribbon panels appointed to do so are far too lenient, and because legally correct decisions that a law abiding judge had no choice about can still lead to the non-retention of a good judge simply because the law enforced is itself controversial. Likewise, in the wake of Baker v. Carr, 369 U.S. 186 (1962) that provides that all state legislative seats must follow the one man, one vote in apportionment, the current bicameral state legislative system is unnecessary and provides little marginal benefit. Shorter ballots would lead to better informed decision making.

andrew said...

The case for eliminating other elected offices where there is some genuine policy making involved isn't as clear cut, but I would personally favor making the attorney-general, sheriff, state school board, and CU-Regent offices, at least, appointive. The AG and state school board could be appointed by the Governor with state legislature approval. The sheriff could be appointed by the county commissioners. County coroners should be replaced by a state medical examiner (a civil service appointee) since the economies of scale aren't sufficient to support am adequate coroner in every county. The county treasurer, county clerk, county surveyor, state treasurer and secretary of state should be civil service appointments at the state and county levels respectively. I don't love the idea of electing a DA, but it might be worth the trouble since it has a lot of policy discretion, having the state AG or the Governor appoint DAs would undermine local control, and having county commissioners from counties with unequal populations appoint the DA in multi-county judicial districts is problematic, although an appointed DA would make sense in the City and County of Denver. There is no reason that the DA would have to be a partisan office, however, and it would be better if it was not one.

Judicial retention elections should be replaced with some system that conducts judicial retention elections only when a judge is flagged as needing to face one, in county court, by the county commissioners (or Denver City Council or a recall petition, in district court, by county commissioners (or Denver City Council) in any county in the district or a recall petition, and for state appellate courts, by the state legislature or a recall position, which would leave these to a handful of genuine hotly contested retention elections every couple of years, rather than holding them as a matter of course, for all judges, and there should be judicial terms limits of 12-18 years or so, in a particular judicial office, in addition to the existing mandatory retirement age.

andrew said...

We'd be left at the state and county level (outside of Denver) electing a Governor (in non-Presidential election even years), a state representative (in even years), a DA (in a non-partisan race in Presidential election years), and county commissioners in even years (either from five single member districts in large population counties once every four years across the board in Presidential election years, or in small population counties with three commissioners elected at large, two for four year terms in Presidential years, and one at large in non-Presidential years). Of course, even number years would still have Presidential elections, elections for U.S. Senate, and elections for U.S. House. We'd switch to a Washington/California style top two primary system in even numbered years for all of these partisan offices except President, which would be in a separate Presidential primary (top four rather than two two primaries would be used for at large county commissions with two seats up at once). Political parties free to grant or deny endorsements of candidates without primary elections in the non-Presidential race. If we are going to have a bicameral state legislature at all, the upper house should be elected by proportional representation (perhaps with roughly half elected every two years for four year terms) by choosing a political party, each of which has a ranked list of candidates. Party nominations of candidates in the open first round partisan race primary elections (which wouldn't control ballot access), and selection of party lists if the state senate were elected by proportional representation, would be done through a caucus system. State ballot issues should be restricted to even year general elections.

Thus there would be five partisan ballots every four years (Presidential primary, two general primary election ballots, and two general elections in even years, with no runoff elections. There would also be one round of partisan caucuses every two years, but this wouldn't affect ballot access, except for party lists in an upper house proportional representation system if a bicameral legislature was retained. The partisan vacancy committee system for partisan offices would be retained (rather than holding vacancy elections from the general public for state and local partisan elected offices).

Odd years should have no primary elections, but should have non-partisan elections for school boards, municipal offices, and elected special district offices (including RTD) in November. County, school board, municipal and special district ballot issues should be restricted to odd year general elections. Non-partisan races for single member districts would require a majority vote, with a top two runoff if no one wins it. There would be two non-partisan ballots every four years (local general elections) plus zero, one or two non-partisan runoff ballots every two years. Judicial terms would be extended by one year for all judges so that judicial retention elections, in the rare circumstances when they were triggered, would be held in odd numbered year general elections, rather than in even numbered years, so that these judicial retention elections wouldn't compete with partisan elections for voter attention and wouldn't become entangled in partisan campaigns with partisan election candidates weighing in as part of their election campaigns.

andrew said...

So, there would be seven to nine ballots every four years: three in Presidential election years (for four to six partisan candidate offices plus a party list if bicameral, and a somewhat smaller set of state ballot issues and sometimes an elected official recall election), two in non-Presidential election even years (for four to six partisan candidate offices plus a party list if bicameral, and somewhat smaller set of state ballot issues and sometimes an elected official recall election), and one non-partisan ballots in odd numbered years (for local school board, municipal and elected special district candidate races and all a somewhat smaller set of local ballot issues and a profoundly smaller set of all judicial retention elections, and sometimes an elected official recall election) plus runoff elections in single member district non-partisan races where no one candidate gets a first round majority. There would also typically be one partisan caucus run entirely by political parties (if they wish) every two years, but it would play a much less important role in the candidate nomination process - having no role in candidate nomination for any office but a state senate party list if there is a bicameral state legislature.

I'd also eliminate state and local TABOR de-Brucing voting when existing taxes bring in more revenue than allowed and eliminate TABOR refunds (which could go to rainy day funds for yers when less than the TABOR revenue cap is collected), but would keep TABOR votes on new taxes. Voter initiatives and the option of referred constitutional amendments and TABOR new taxes would be retained, but not voter initiatives to force votes on legislation passed by the legislature. I would make it somewhat harder to get statutory voter initiatives on the ballot, significantly harder to get constitutional amendments on the ballot, however.

I would keep the option of recall elections for all state and local elected offices by petition along the lines of the current system, to be held on the next available open primary or general election ballot.

All elections would continue to use the mail-in paper ballots we have today, with the only change being that ballots would be postage pre-paid. Without nearly as many judicial retention elections, and with somewhat fewer ballot issues in each election due to the limitations suggested above, the blue book would be somewhat shorter. But, a new blue book in which candidates could make a brief pitch for themselves would be distributed in advance of each open partisan primary, and in odd numbered years, the blue book would be expanded to include a brief pitch for each non-partisan candidate. These expansions reflect the demise of widespread newspaper subscriptions. I would also lower the voting age to sixteen years old (as of the general election date in that calendar year) for all elected offices.

Shorter ballots would improve turnout and would improve the quality of the decisions made by voters faced with fewer races and issues to inform themselves about.

andrew said...

In Denver, elections for DA (which would be politically appointed by the Mayor with council approval) and county commissioner would be dispensed with, as would county clerk and recorder (which would be civil service appointed), and municipal elections would be moved to odd numbered years in November, together with school board and RTD elections and any judicial retention elections. So, in Denver we'd have:

In non-Presidential election even years, there would be open primaries for Governor, sometimes U.S. Senate, U.S. House, and state representative, and a general election for the Governor, sometimes U.S. Senate, U.S. House, a state representative, and a party preference for state house if there is a bicameral legislature.

In Presidential election years, there would be a Presidential primary, an open primary for for sometimes U.S. Senate, U.S. House and state representative, and a general election for the President, sometimes U.S. Senate, U.S. House, a state representative, and a party preference for state house if there is a bicameral legislature. The general election in each of these even numbered years would also have state ballot issues and any recall elections of elected officials for municipal office or school board or RTD elected officials.

In every other odd numbered year there would be elections for non-partisan four year terms, Mayor, city council at large, city council by district, city auditor, half of school board seats, half of RTD districts, any local ballot issues, flagged judicial retention elections, and recall elections of state elected officials, RTD seats not up for election, and school board seats not up for election that cycle.

In the other odd number year, there would be elections for the non-partisan half of school board seats, half of RTD districts, any local ballot issues, flagged judicial retention elections, and recall elections of state elected officials, RTD seats not up for election, and school board seats not up for election that cycle. Following general elections in odd numbered years, there would be runoff elections for Mayor, city council, school board district as opposed to at large seats, and RTD seats where no one candidate got a first round majority.

andrew said...

In one slightly more ambitious reform, I'd replace single district Congressional elections with a party list proportional representation election for the Congressional seats in each state (eliminating gerrymandering) with a two-seat open primary for states with a single member of Congress.

I'd also admit D.C. and Puerto Rico to statehood. And, by constitutional amendment (made easy by eliminating the three electoral votes granted to rump D.C.), I would give each self-governing U.S. territory the number of seats in the U.S. House of Representatives that it would have if it were as state, would create one U.S. House seat for U.S. citizen expatriates outside any U.S. state or self-governing U.S. territory, and I would replace the electoral college (possibly made a moot issue by an interstate compact leading to the same result) with a direct popular vote for President. I would impose a six term limit on U.S. Representatives and a two term limit on U.S. Senators. I would also non-constitutionally abolish the filibuster and other privileges of non-majorities except the vote of any U.S. Senator from a state of a U.S. District Judge.

I would limit the authority of a lame duck Congress to veto-override majorities, and would prohibit the lame duck President from vetoing bills or making permanent appointments or making binding regulations or international agreements. I would reduce the threshold for Presidential impeachment convictions and veto overrides and treaty approvals from two-thirds to 60%, and would include failing to uphold the oath of office and failing to faithfully execute the laws as grounds for impeachment. I would transfer the task of approving Presidential nominations from the U.S. Senate to the U.S. House.

andrew said...

I would increase SCOTUS to a constitutionally fixed fifteen judges serving fixed fifteen year single terms, and limit other federal judges to single fixed fifteen year terms.

I would eliminate federal diversity jurisdiction in cases involving all U.S. parties. I would eliminate federal question jurisdiction (except as to appeals from state courts, which could be vested in SCOTUS or in an intermediate appellate court created by law) in cases not involving the U.S., a state or state official, or a foreign state or foreign official. And, I would end the original jurisdiction of the U.S. Supreme Court in cases where a U.S. state was not a party (i.e. in diplomatic cases). I would provide that duly adopted treaties are inferior to the U.S. Constitution, but superior to domestic legislation.

I would also give the Speaker of the House, the Minority leader of the House, the Majority leader in the U.S. Senate, and the Minority Leader in the U.S. Senate, and the Governor of each U.S. State and self-governing U.S. territory, standing to bring cases involving an actual case of controversy in a matter other than a disputed election, in which only taxpayers or citizens with no particularized interest in the case would otherwise have standing, and would give the Speaker of the House, the Minority leader of the House, the Majority leader in the U.S. Senate, and the Minority Leader in the U.S. Senate standing to enforce Congressional authority and issue and enforce Congressional subpoenas.

I would vest authority over disputed elections exclusively in the courts rather than Congress, with all post-election vote counting disputes resolved in state courts except that federal court jurisdiction after an election would exist but be limited to disputes over the total votes cast in Presidential elections following state certification of those votes (by state courts if necessary), and over failures of Congress to seat a state certified winner (by state courts if necessary) of a U.S. Senate or U.S. House race.

I would also constitutionally lower the voting age to sixteen and end disqualification from voting for felons (who would vote where they resided prior to incarceration).

Michael Malak said...

Your point about long ballots is well taken. Everything not of importance is on it!

Why is there no ballot question about housing the homeless in a dignified manner?

Let alone, at a national level, ballot questions about immigration or war?

andrew said...

Yeah. Indeed.

There was a ballot question about improving the lot of the homelessness on the 2020 Denver ballot, although not as general.