There’s still time for states to change their election laws.
In USA Today, Randy Barnett has written a sobering assessment of the dangers of a Donald Trump presidency and proposed that if Trump wins the Republican nomination, a Constitutional party should form as an alternative “that can attract principled conservatives, but also any American who is tired of crony capitalism, runaway government, and rule by an out-of-touch political class.”
Barnett assumes that such a candidate would throw the election to the Democratic nominee by splitting the non-Democratic vote — unless Trump collapses during the general-election campaign. Others have described a third-party run by a more traditional conservative than Trump as potentially “a heroic act of self-sacrifice,” similarly assuming that such a run would surely result in Democratic victory.
In other words, even those who would support a Constitutional candidate acknowledge that under current rules, a vote for that candidate would almost certainly increase someone else’s chances of being elected. This is hardly reassuring for those who wish to cast a meaningful vote in November for a limited-government candidate.
But vote-splitting among Republican-aligned voters would ensure a Democratic win only if every state retained its current rule of awarding presidential electors to the winner of a plurality of the votes. The Constitution, however, leaves the states free to select any rule they wish for allocating electors, and it’s not too late for states to adjust these rules before the November election to better fit these extraordinary circumstances.
Republicans currently hold unified control of the state legislature and governorship in 24 states (including Alaska, with its Republican-turned-independent governor). Even if the party is unable to stop Trump from winning its nomination, it can ensure that voters are given the option to vote for the Constitutional candidate in November without guaranteeing a win for the other side. To do this, these states must change their selection of presidential electors to a runoff system.
The rules of a runoff system would be simple: If no candidate receives an absolute majority of a state’s popular vote in the general election in November, the top two vote-getters compete in a runoff vote a few weeks later. Such systems are not uncommon: Georgia and Louisiana, for example, have long required runoffs in every election except for president.
Such systems are not uncommon: Georgia and Louisiana, for example, have long required runoffs in every election except for president.
Suppose the general election turns out to be a three-way contest between Trump, Hillary Clinton, and the Constitutional candidate. Take a state like Texas, in which Barack Obama won 40 percent of the popular vote in 2012, and in which Trump won only 27 percent of Republican-primary voters. Let’s say the Texas vote in November breaks down Clinton 40 percent, Constitutional candidate 35 percent, Trump 25 percent. Under its current plurality system, Texas would award all of its electoral votes to Clinton. A runoff system, however, would pit Clinton against the Constitutional candidate in a second vote. If Trump voters align strongly against Clinton in the second round, then the Constitutional candidate would win the state’s electoral votes.
Could a Constitutional candidate plausibly win an outright majority of the Electoral College in such an election? Probably not, especially since it’s unrealistic that every Republican-controlled state would be able to move to a runoff procedure in time. But if no candidate wins an outright majority of the Electoral College, the election would be decided among the three candidates by the newly elected House of Representatives, with each state given one vote. Republicans currently are the majority in 33 state delegations, and it’s a safe bet that the Constitutional candidate would be more popular with congressional Republicans than Trump. Thus, a second- or even third-place showing by the Constitutional candidate in the Electoral College could still lead to that candidate’s becoming president.
A few other strategies could also send the election to the House, but each has serious drawbacks. Allocating a state’s electors proportionally among the three candidates, instead of by winner-takes-all, would reduce Trump’s chances of winning an Electoral College majority, but it would also increase Clinton’s chances, since she would pick up some electors in red states where she would normally be shut out. The same goes for a vote by congressional districts, as is currently practiced in Maine and Nebraska.
Even if the states don’t adopt runoffs, the Constitutional candidate might still deny both Trump and Clinton an Electoral College majority by running a targeted campaign in heavily Republican states such as Oklahoma, where a three-way plurality win would be possible. But this would hardly be ideal for someone running as a plausible third national candidate, and it would require the House to either vote for Trump or choose as president someone who had won only one or two states.
A runoff system is the best option available to achieve a competitive three-way race, but is it likely that states would actually make the switch, when the plurality (or “first past the post”) system has been the standard for so long? Not really. The current system reflects the rational desire of the major parties to maintain a strong two-party system; when elections are structured as plurality-take-all, it is in everyone’s interest to align themselves into only two factions, so that votes are not “wasted.”
Yet sometimes an intra-party rift becomes so large that it causes a general-election schism. And when the previous two nominees of a party declare its current front-runner unfit for office, it is plain that we are in the midst of such a schism. Even if Trump loses the Republican nomination, his willingness to run as an independent means we may well have a three-way race no matter what.
When the plurality-voting system has failed so spectacularly to maintain a party’s unity, states have two options: retain the current system — which would nearly guarantee a win for the party that remains unified — or switch to a runoff, under which three candidates can run competitively without fear of vote-splitting.
If the states don’t exercise their constitutional prerogative to reconsider their election processes in light of new circumstances, voters looking for a candidate who respects the Constitution may find themselves unable to cast a meaningful vote in November. On the other hand, if enough states switch to a runoff system, the possibility of seeing a new president who is not Trump or Clinton will be eminently attainable, no matter what happens this summer in Cleveland.
— Thomas Berry is a third-year law student at Stanford University who will be a legal associate at the Cato Institute after graduation.