Most elections for Congress feature a general election with a Democrat and a Republican who previously were picked by partisan primaries. These first-past-the-post elections present voters with a singular choice: Pick the Democratic candidate or the Republican candidate. This limited choice is becoming increasingly problematic for Americans as fewer and fewer of them much like either of the two major parties. Moreover, this form of election often leaves Americans voting for the lesser of two icky choices.

What can be done to improve matters? I contacted Edward “Ned” Foley of the Ohio State University. He holds the Ebersold Chair in Constitutional Law at The Ohio State University and also directs its election law program. In a recent white paper and forthcoming article, Ned proposes Congress pass a law requiring representatives and senators to be chosen by majority vote. How states achieve that goal would be left up to them.

Kosar:
The law you propose—what would it mandate?

Foley: It would require candidates
to receive more than 50 percent of the vote in the November general election in
order to win. This rule would apply to Senate and House elections, although it
could be limited to just Senate races if and when Congress were ever to adopt a
more ambitious system of proportional representation for House seats. Unless
the Constitution is amended (which is very unlikely), however, Senate elections
are necessarily single-winner statewide races. But Congress is constitutionally
entitled to set the procedures for these elections, and Congress should require
that a winning candidate receive a majority of votes. In fact, Congress enacted
this requirement for Senate elections in 1866, but that was when Senators were
elected by state legislatures. Unfortunately, that requirement was eliminated
when the 17th Amendment switched to a popular vote by citizens for Senate
elections. Congress should reinstate the requirement.

How
do you define a majority winner?

A majority of votes is at least
one more vote than half; in other words, greater than 50 percent. The key is to
distinguish a majority from a plurality, which means more than any other
candidate. When there are only two candidates, a plurality is necessarily a
majority. But if there is a third-party or independent candidate in November,
the plurality might be less than a majority. This happened in 2010, when
Senator Lisa Murkowski won reelection as a write-in candidate, after losing the
Republican primary to a Tea Party challenger. That same year, Marco Rubio won
his Senate seat with only 49 percebt when then-governor Charlie Crist withdrew
from the Republican primary and ran in the general election as an independent,
coming in second behind Rubio and the Democrat trailing in third place. It is
important to require a majority, rather than a plurality, because it might be
the case that if the third (and any additional) candidate were eliminated, the
candidate with the plurality would end up losing the two-candidate race.

Rep. Liz Cheney’s (R, WY)
predicament this year also illustrates why plurality-winner elections are
problematic. She might lose the Republican primary, and even if she ran in
November as an independent, the Republican nominee might be the plurality
winner. But in Wyoming the Democrat might come in third behind Cheney in second
place (like Crist in 2010), and yet if the
November election were a two-way race between Cheney and the Republican
nominee, Cheney might win (and this is so even though she lost the Republican
primary). A majority-winner rule would require Wyoming to have a method for
showing which candidate, Cheney or the Republican nominee, is preferred by the
state’s voters as a whole (and not just primary voters). In this situation, a
plurality-winner general election prevents the state’s voters from electing the
candidate they actually most prefer.

Is
the use of some form of ranked-choice ballots necessary to meet the
requirements of this proposed statute?

No, a state could use the kind of
“top two” system that California currently has: a nonpartisan primary, which
sends the two candidates with the most votes to the November general-election
ballot.

Your
paper notes that states could produce candidates with majority support through
round-robin voting. What’s that?

Foley: Round-robin voting
resembles a round-robin sports tournament in that each candidate faces off
against each other candidate one-on-one. The winning candidate in these
one-on-ones is preferred by a majority, and thus the candidate who wins the
most of these one-on-ones is the most majority-preferred candidate, just like
the winner of a round-robin sports tournament being the strongest competitor.
It’s possible to generate the round-robin election from ranked-choice ballots;
one calculates the round-robin winner differently from the “instant runoff”
method that is usually used with ranked-choice ballots. By identifying the most
majority-preferred candidate, the round-robin calculation is arguably superior.

Thank you, Ned.

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