As a contested Republican convention grows increasingly likely and the rift between Donald Trump and mainstream Republicans widens into a chasm, the possibility that the losing faction at the convention could mount an independent bid for the presidency remains very real. Such a split in the Republican electorate would normally prove disastrous in a general election, and even the threat of such a run could provide Trump with convention-floor leverage.
In a recent article, I proposed that the only way to ensure that such a split does not guarantee Democratic victory would be for Republican-controlled states to change their selection of electoral votes from a plurality election to a runoff system.
But even if making this switch would be good policy, it must also be good law. If states are to seriously consider this option, the case must be made that such a switch is both constitutional and compatible with federal law. This article will explain why it is both.
The “Time of Chusing” Clause
Although the Constitution allows each state to appoint electors “in such Manner as the Legislature thereof may direct,” it also gives Congress the option to “determine the Time of chusing the Electors.”
It was not until 1845 that Congress narrowed this “time” to a single Election Day, mandating that “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November.”
If this were the entirety of the federal law, states would be prevented from conducting any form of runoff election for president on any date after Election Day. Yet when the bill was being debated in Congress, New Hampshire and Massachusetts required presidential candidates to win a majority of the popular vote in order to win their electoral votes outright, mandating a selection by the state legislature at a later date if no one reached this threshold.
Not wanting his own state’s system to be invalidated, New Hampshire representative John P. Hale noted with concern that “this bill appeared to him to be framed on the idea that the choice of electors would always be perfected in one day.” Hale reminded the House that “in the State which he had the honor to represent, a majority of all the votes cast was required to elect the electors of President and Vice President of the United States, and it might so happen that no choice might be made [in one day].”
After Hale suggested “that provision might be made for such a contingency,” a new section was added to the bill, which remains in effect: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
It was quickly confirmed that this provision allowed states to set majority-vote thresholds for president; in the very next election, in 1848, no candidate reached a majority of the vote in Massachusetts. The winner was decided in the state legislature 16 days later.
More recently, Georgia maintained a majority-vote requirement in presidential elections, beginning in at least 1936 and continuing through 1964. The rules originally dictated a selection by the state legislature in the event there was no majority-vote winner, later switching to a runoff election.
Thus there is no doubt that Congress has not precluded the right of states to require a majority vote for president on Election Day, and to hold a runoff election at a later date if no one reaches that threshold.
Changing the law during an election year
Can a state change its rules for choosing electors in the midst of a presidential election, even with the aim of helping a particular candidate in that very election? We don’t have to speculate about the answer to this question, because this scenario actually happened 48 years ago.
In early 1968, it was clear that segregationist former Alabama governor George Wallace was going to run as a third-party candidate for president, hoping to win several Deep South states in a split three-way plurality vote.
If a state wants to switch to a runoff system, or even go all the way back to a choice by its legislature, nothing prevents it from doing so, even after an election campaign has begun.
In what was almost surely not a coincidence, a bill was introduced in the Georgia legislature at the end of January that both lowered the signature threshold for third-party ballot access and eliminated the majority-vote requirement in presidential elections. The bill was enacted on March 8, 1968, a month after Wallace had formally announced his campaign, yet there was no dispute that the rule change would take effect for that election. If indeed it was enacted with the aim of aiding Wallace, the plan worked. Wallace won Georgia with a 43 percent plurality, avoiding a runoff because of the change in the law.
This 1968 precedent makes it clear that if a state wants to switch to a runoff system, or even go all the way back to a choice by its legislature, nothing prevents it from doing so, even after an election campaign has begun.
Other Federal Law: The Voting Rights Act and the Uniformed and Overseas Citizens Absentee Voting Act
Congress derives its power to regulate presidential elections from the enforcement clauses of the Fifteenth Amendment, which bans abridgment of the right to vote on the basis of race, and the Fourteenth Amendment, which guarantees the “equal protection of the laws.” These two powers, respectively, are the basis for the Voting Rights Act (VRA) and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).
The VRA forbids any voting procedure that results in members of one race “hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Runoff laws have previously been challenged under this provision, on the theory that (especially in southern Democratic primaries) a runoff election might allow a majority-white constituency to unify behind a single white-preferred candidate, defeating a minority-preferred candidate who would otherwise have won in a split field.
Courts, however, have consistently declined to strike down runoff provisions under the VRA. (Instead, the only successful challenge to a runoff provision that I am aware of was a constitutional challenge to an Arkansas law, which historical evidence strongly suggested was intentionally enacted to harm black voters.)
Every VRA challenge is highly fact-specific, making it difficult to generalize from prior precedent, but the odds of a successful challenge to a presidential runoff would be very low. Although there is certainly a correlation between race and party preference, general elections for president do not break down into pure racial bloc voting to the extent that is usually necessary to claim a VRA violation. If runoffs in highly racially polarized party primaries do not violate the VRA, it is even less likely that runoffs in a general election would do so.
UOCAVA was enacted to simplify voting by overseas members of the military. It requires that absentee ballots be delivered to them at least 45 days before “any federal election” (including presidential elections). This provision has been held to apply to runoff elections as well as general elections.
In response to UOCAVA, Georgia pushed back its congressional runoff elections to nine weeks after the general election, to provide a gap of more than 45 days so that finalized absentee runoff ballots could be sent in time. This solution would not work for a presidential runoff, however, since Congress has mandated (with constitutional authority) that electors must vote for president on the first Monday after the second Wednesday in December, providing less than 45 days between Election Day and the date by which electors must be chosen.
Happily, other states that conduct congressional runoffs have adopted an alternative solution to UOCAVA compliance that would be compatible with the Electoral College deadline: instant runoff voting. In the 2014 congressional primaries, four states sent instant-runoff ballots to military voters, and Louisiana did the same in its November election.
These ballots allow voters to select a first choice, which serves as their vote in the main election, and then to rank all additional choices in order, so that their vote in a runoff will automatically be given to whichever of the final two candidates they ranked higher. The implementation of this system shows that any state switching to a runoff presidential election could comply with UOCAVA in the same manner.
Neither the Constitution nor federal law stands as an obstacle to any state that wishes to switch to a runoff system. Whether Republican-leaning states actually make the switch will depend on overcoming political hurdles, not legal ones.
If the Republican party can somehow remain united through November, a runoff system will be no worse than the current plurality rule. But in the event that the party does split, a runoff could be the difference between near-certain defeat and a real chance of victory. The question, then, is what do these states have to lose?