2 - Majoritarianism and Minoritarianism in the Law of Democracy

Summary

Democracies grapple with the tension between the principle of majority rule and ensuring respect for the interest of political minorities, however those might be defined in different societies and different circumstances. As an initial matter, constitutional designers confront this tension in the original architecture of a democratic system. But the balance struck between majorities and minorities is not exclusively settled through the original constitutional design. In the United States, at least, legal doctrine and statutory enactments have also been centrally engaged in ongoing fashion with this fundamental tension.

As this essay chronicles, the law of democracy began with a focus on ensuring the majoritarian basis of American democracy. Over time, the focus then shifted to concern with fair representation of the interests of minorities within the majoritarian system. Now, we argue, the focus of reform efforts is shifting back to efforts to restore the majoritarian thrust of democracy. The law of democracy cycles, perhaps without final resolution, between supporting majoritarianism, concern for minority interests, and back again to shoring up the majoritarian foundations of democracy.

In our era, it is the power of factional minorities who are able to leverage control of plurality winner processes that poses the greatest challenge for American democracy. The threatened tyranny of the minority of the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront.

2.1 From Electoral Majorities to Minority Rights

Democracies grapple with the tension between the principle of majority rule and ensuring respect for the interest of political minorities, however those might be defined in different societies and different circumstances. As an initial matter, constitutional designers confront this tension in the original architecture of a democratic system. Should the system be a strongly majoritarian parliamentary one? Should there be distinct, geographic-based representation in one chamber of a bicameral legislature of certain units, such as counties, states, provinces, and the like? Should there be explicit representational guarantees for identified minority groups, as in consociational democracies? If majorities have too much concentrated power, the risk is a form of majoritarian domination. If minorities are given too much power, the risk is a minority veto over government.

But the balance struck between majorities and minorities is not exclusively settled through the original constitutional design. In the United States, at least, legal doctrine and statutory enactments have also been centrally engaged in an ongoing fashion with this fundamental tension. Nor are the dominant concerns in one era necessarily those of another; solutions that appear best for a particular period of time are not necessarily appropriate as circumstances continue to evolve over time. At certain moments, the democratic system might be judged to be too strongly majoritarian, with the interests of political minorities being excessively subordinated. At other moments, the system might turn out to grant too much power to political minorities, with the ultimate risk being minority capture or paralyzed government.

The difficulty begins with the fundamental question of how much is due to those that triumph electorally. At its irreducible core, democracy turns on elections. Elections separate those able to muster popular support from those unable to inspire sufficiently. Elections provide the major mechanism for accountability of the governors to the governed and, through rotation in office, forestall the emergence of an alien governing elite. Elections reward institutions that wed effective campaigning to subsequent performance in office. When functioning well, democratic elections provide what Jonathan Rauch terms “dynamic stability,”¹ a process by which parties and programs are tested and retested, but within a relatively stable set of institutional arrangements.

Twenty-five years ago, we turned our attention to the potential distortion resulting from the ability of incumbent powers to improperly lock up the capacity for change, borrowing the concept of a “lock up” from corporate law and the competition for control of a firm. In the “Politics as Markets”² approach, the natural predilection of incumbents for stability compromised the dynamism of the political system and permitted an agency-cost gulf between the governors and the governed. Drawing from diverse sources, most notably John Hart Ely and Joseph Schumpeter, we examined whether barriers to entry and other anticompetitive encumbrances thwarted the normal processes by which choice generates development through competition, much as the antitrust laws look to keep open the processes of creative destruction by which new entrants test the continued market dominance of the old.

Much has happened in the intervening quarter century, and today we look a bit more skeptically at the outputs of democratic processes, rather than focus almost primarily on the inputs. At the time of publishing “Politics as Markets,” we were worried about majority parties and incumbents entrenching themselves through various control points in the political process; now we worry as much about minorities entrenching themselves within the parties and cutting off accountability to majoritarian preferences . As we have written about extensively, the fragmentation of political authority across the established democratic world³ and the rise of populism⁴ have yielded an all-or-nothing cataclysmic quality to elections, now increasingly shorn of the institutional moorings that defined the period of democratic ascendency. A good part of our attention turns to the current predicament of increasingly illiberal democracies gravitating toward executive command and legislative failure. This has forced a broad refocus to core questions of what ails democracy.

In this essay, our attention is directed to a reassessment of one of the persistent tensions in the law of democracy. We can think broadly of democratic stability as necessitating the avoidance of the twin shoals of excess power to the current majority and the risk of preemptive power flowing to factional forces. If these be the Scylla and Charybdis of democracy’s journey, the problem is compounded in an era of weak institutions, first and foremost the political parties. Electoral arrangements that well served an expanding electorate in pushing open the centers of power now risk becoming instruments of democratic paralysis or even collapse.

As with “Politics as Markets,” our inquiry can be rooted in the initial salvos of an assertive law of democracy in the period of Baker v. Carr⁵ and Reynolds v. Sims.⁶ Each case exposed the mechanisms by which institutional stasis could preserve an untouchable minority in power. As Chief Justice Warren noted at the end of his tenure on the Court, these groundbreaking opinions were intended to open political contestation over areas of American politics that had been laid relatively immune to an aroused militancy, even from a majority of potential voters . To this majoritarian commitment, we may add the initial thrust of the 1965 Voting Rights Act, which extended the ability to register and vote to excluded minority populations (in the South above all), designed to ensure elections would be responsive to the majority of all adult citizens.

It is common to think of judicial review as primarily protecting individual rights and vulnerable minorities. But many of the early law of democracy cases were actually in the service of majoritarianism, even if the indirect beneficiaries were expected to be discrete and insular minorities. Yet once the one-person, one-vote cases gave greater thrust toward majoritarianism, it soon became clear that this approach was insufficient to allow real access to effective political participation for America’s persistently excluded minorities – particularly in the face of racially polarized voting patterns. Almost immediately, cases such as Allen v. Board of Elections⁷ and White v. Regester⁸ sharpened the institutional inquiry into the way in which majority-reinforcing institutions, such as at-large or multimember district elections, consistently frustrated minority electoral prospects. The entrenched politics of exclusion proved far more resilient than could be redressed by a simple expansion of the franchise or the requirement of equipopulous election districts.

Dubbed the second generation of voting rights claims, the battle for effective guarantees of minority representation, particularly after the 1982 amendments to the Voting Rights Act (VRA), transformed politics, especially in the South. Districted local government elections allowed different minorities to establish themselves, beyond the black constituencies that were the primary concern of the cases. In short order, partisan competition spread, the parties realigned across an increasingly racially driven axis, and the Southern Democratic hegemon was uprooted, together with its formal Jim Crow foundation.

But the logic of creating minority avenues to challenge encrusted power did not stop at formal barriers to black representation. The logic demanded greater minority footholds in all facets of the political process, including within political parties. Thus, in a series of ballot-access cases, the Court struck down excessively burdensome requirements for third parties or independent candidates to get on the general-election ballot. As the Court reasoned in one such case, overly restrictive ballot-access rules to those challenging the major parties were an unjustifiable entrenchment of the established parties:

No discernible state interest justified the burdensome and complicated regulations that in effect made impractical any alternative to the major parties. Similarly, here, we perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the State is free to assure itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support.⁹

Indeed, this line of cases represented a growing distrust of majoritarianism as a stand-alone guarantor of democratic legitimacy. In Gordon v. Lance, a 1971 case expressing the same impulse toward restraining majorities, the Court upheld a West Virginia requirement of a 60 percent supermajority support for bond obligations:

Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a Governor by a state legislature, after no candidate received a majority of the popular vote.¹⁰

Once popular majoritarianism was no longer the primary virtue courts sought to uphold in the political process, the issue of the measure of proper legitimacy surfaced fully. The background norm of proportionality always lurked as a possible template – certainly that was the language of much opposition to the 1982 VRA engagement with at-large elections – a ready measure of when historically vulnerable minorities had received their due share. But the use of single-member districts as the antidote to minority exclusion pushed forward a markedly inferior way to achieve proportional results unless districts were packed with so many voters of a certain description or inclination as to make the desired electoral result inevitable.

In a setting such as that presented in Johnson v. DeGrandy,¹¹ the claims for maximizing the protection of minorities reached the point of black constituencies and Hispanic groups fighting for super-proportional legislative representation as a matter of due, leaving the bare white majority with a presumed limitation to sub-proportional status. A unanimous Court rejected this result. Then, most notably, in a long series of cases starting with Shaw v. Reno,¹² and each turning on complicated factual assessments, the Court imposed an important, though ill-specified constitutional constraint on the level of deliberate minority guarantees that states could offer.

Rather than spark a turn to majoritarianism, the post-Shaw period channeled needs for minority representation into a broad current of efforts to claim the political parties as the terrain for capturing political power. A compressed form of a long and complicated story would focus on the McGovern-Fraser reforms in the Democratic Party (and corresponding developments in the Republican Party),¹³ the financial strictures of McCain-Feingold,¹⁴ and the rise of social media as a forum for candidate independence and private fundraising. Each had the effect of diminishing the power of the party leadership and giving rise to free agency within the formal boundaries of the party, or at least with the aim of battling for command in the increasingly decisive primary process.

The resulting picture of party fragmentation and the capture of electoral vehicles by the polar extremes is one that bedevils the entire democratic world. The ubiquity of the problem and the push toward illiberalism cautions any discussion that focuses on American legal and political developments as having unique consequences.¹⁵ In democracy after democracy, we see “the external diffusion of political power away from the political parties as a whole and the internal diffusion of political power away from the party leadership to individual members” and, correspondingly, the “decline of parties as the locus of democratic politics and the rise of the individual-centered definition of politics.”¹⁶ Yet there is a clear domestic trajectory to the law of democracy since the 1960s, and we intend the following discussion to ground the problem of majoritarianism and minoritarianism in American law and politics. As the institutional centers of American politics lost command, the battle for the increasingly rudderless electoral vehicles empowered the further margins of each party.

One way of framing the inquiry is to go back to the key question posed by “Politics as Markets.” As originally framed, we were concerned about legal obstacles to the accountability of the electoral system to the will of the voters and to those who had been historically excluded. There was both too much centralized party control and too little capacity for minorities to enter the fray. In discussing cases going back to the White Primary Cases, we tried to show that structural attention to the openness of competition could provide a mechanism for cohesive minorities to seek advantage within the domain of political inputs, with less reliance on difficult rights claims on what the ensuing political outputs should be. We were worried about majority parties entrenching themselves; now we worry as much about minorities entrenching themselves within the parties. As coined by William Galston, we face the threat of becoming a tyranny of a minority of the majority. Put another way, the law of democracy was born in the pursuit of majoritarianism. It soon shifted to attempting to ensure fair treatment of minority interests in the face of systematic conflict. But we now face the challenge of precluding extreme or factional minoritarian interests from capturing and controlling government.

2.2 Re-establishing Majoritarianisms

America’s political parties are internally fragmented. Jumping ahead to the present, this is the most significant new challenge in American democracy.¹⁷ Fragmentation has numerous ramifications for both elections and governance. In both primary and general elections, it has accentuated the risk that under plurality-voting rules, factional candidates with intense but minority support can capture a party’s nomination and/or win the general election. In governance, the fragmentation of the parties means that even during periods of unified government, the parties are less able to cohere around the ability to deliver on a common platform of political objectives. In practice, this means that a minority faction in the party is able to exercise effective veto power over legislation.

In the second phase of the constitutional and statutory revolution in voting rights, the dominant concern was to ensure that racial and ethnic minorities would be fairly represented in representative institutions under circumstances in which majorities systematically declined to support candidates from those minority groups. The perceived problem to which law and policy responded was the risk that majorities would exercise a form of majoritarian tyranny, in which the interests of minorities were systematically discounted. In our new era of extremism and fragmentation, instead, a major concern has become too great a compromise of the majoritarian thrust on which democratic systems ought ultimately to rest. Much of current institutional reform thought can best be understood as an effort to reassert the importance of majoritarian control over the outcome of elections.

2.2.1 The Birth and Death of Majority Winners

In early American democratic thought and practice, democracy was understood to rest on “the grand principle” of majority rule. Many state constitutions expressed this commitment in requirements that candidates could be elected to office only if they had won a “majority” of the votes cast in the election. Under these provisions, if no candidate received an absolute majority of the votes cast, the election was considered a failed election. No candidate was elected. These were called “no-choice elections” or “non-elections.”¹⁸

This policy approach was consistent with certain democratic theory of the era, such as that reflected in the work of Condorcet (Madison and Jefferson were well aware of the work of Condorcet).¹⁹ In his work on voting theory, Condorcet had argued that the ideal voting system was one in which the winner – whether a candidate or a policy – would defeat all other alternatives on the agenda in a series of pairwise comparisons.²⁰ The “Condorcet winner” was legitimately entitled to win because that candidate had received a majority of the vote against any of the other candidates. Voting systems should be designed to reveal the Condorcet winner (Condorcet recognized that, depending on the distribution of preferences, a Condorcet winner was not always possible.)

If an election failed, states employed one of two fallback mechanisms. One was to re-hold the election until one candidate did receive a majority of the cast votes. Alternatively, the power to fill the office fell to the legislature, which would then appoint someone to the office. The drawback of the first approach soon became obvious. In Massachusetts, for example, one office took twelve ballotings before a candidate was elected. At least one Massachusetts congressional seat remained vacant for an entire two-year term because voters repeatedly failed to make “an election.” In Vermont, one congressional seat remained contested over the course of ten separate runoff elections – until one of the candidates died, a definitive if sub-optimal ultimate resolution.

The alternative fallback mechanism empowered legislatures to take over the choice from the voters, including for offices such as governor. The problems with this alternative, which remained in place in some states until late in the nineteenth century, were revealed in examples like the following, from Rhode Island: voters there went through four no-choice elections for governor in five years (1889–1893) due to the persistent presence of a third party (the Prohibition Party). In the gubernatorial elections of 1889, 1890, and 1891, the Democratic candidate received more votes than the Republican candidate but was only selected over his Republican opponent by the legislature once (1890). Then, following another no-choice election in 1893, the backup contingency failed as well, and no governor was selected after the Republican Senate and Democratic House reached an impasse. Instead, the governor elected in 1892 simply held over in office for the 1893 term.

As practical experience revealed that the “majority winner” rule could lead to repeated elections and vacant seats, and as voters came to reject the legitimacy of legislatures choosing officeholders for seats designed to be elective, nearly all state constitutions shifted to providing that the candidate receiving the “plurality” of the vote would be the winner. Only two states today still have majority-vote requirements in their state constitutions, Vermont and Mississippi. In Vermont, where the legislature still appoints if no candidate receives a majority of the vote, the legislature almost always appoints the plurality winner; yet in 1976, when a Democrat won the plurality but not majority of the vote for Lieutenant Governor, the Republican legislature appointed his Republican opponent. In Mississippi, the failure of any candidate to win a majority now triggers a run-off election (other states have similar run-off requirements via statute).

The rise of plurality-voting rules means that candidates who are not Condorcet winners can nonetheless be elected. If Al Gore had been pitted in a one-on-one matchup with George W. Bush in Florida in 2000, Gore might have defeated Bush; but with the presence of Ralph Nader on the ballot, Bush won the state’s electoral votes with a plurality of the vote, 48.8 percent. In addition, strong factional candidates can also prevail.

France provides the most dramatic recent example. In the first round of the recent French presidential election, around 30 percent of the vote went to the two candidates on the extreme right, Marine LePen and Eric Zemmour. If France used a typical plurality voting system, it’s not difficult to imagine that one such candidate could have been the plurality winner; Emmanuel Macron received 27.8 percent of the first-round vote (of course, the decisions of candidates and voters would have been affected had France used a single-round plurality-vote system). But when France abolished its electoral college and shifted to direct election of the president in the 1962 constitutional reforms that created the Fifth Republic, the system sought to ensure that only candidates supported by a majority could win. Thus, the system requires a second-round runoff between the top two first-round candidates if neither received a majority in that first round of the overall vote cast (the presidential election has required a second round run-off in every election since 1965 – and in the eleven elections held since then, three plurality winners in the first round have lost to a majority in the second round).²¹ If a majority prefers an extremist candidate, the French system – and most democratic systems – cannot prevent that. But it can prevent a factional extremist candidate from taking over the country simply because a plurality-voting system is in use.

2.2.2 Reforming Voting Rules to Re-establish Majority Winners

As the French example reflects, one institutional mechanism to ensure only candidates with majority support in an election will prevail is through a second-round runoff election. In the United States, two states – Georgia and Louisiana – require a runoff in the general election if no candidate wins a majority in the initial election;²² ten states require a runoff in primary elections.²³ But runoff elections in the United States have a tainted history, at least in some states, harkening to late nineteenth-century efforts to frustrate black electoral opportunity during Reconstruction. Of the ten states that have majority runoff requirements for primary elections, seven are in the South.

At the heart of the Jim Crow assault on the franchise, the 1890 disenfranchising constitution of Mississippi adopted the majority runoff election as part of the general effort to diminish the influence of black voters.²⁴ When voting is extremely polarized by race in majority-white jurisdictions, majority thresholds can create “a considerable obstacle to black, but not white, office holding” by providing an opportunity for “fragmented white voters [to] regroup behind the highest white vote getter and elect that person to office.”²⁵ As would be gleaned from public choice theory, coherent minorities are less likely to fracture than diffuse majorities, meaning a self-identified minority can more readily leverage its political strength than a more differentiated majority.²⁶ A runoff gives the more diffuse majority a second opportunity to close ranks, as in effect happened in France with Macron.

A case from the North addressed the relationship of such majority vote requirements to concerns about minority vote dilution. To win the primary election for three of the most significant city-wide offices in New York City (mayor, city council president, and comptroller), state law provided that if no candidate received at least 40 percent of the vote, a runoff between the top two candidates was required. In Butts v. City of New York, this requirement was challenged as both intentionally discriminatory against black and Hispanic candidates, and as a violation of the recently enacted “results” test of the VRA.²⁷ The Second Circuit first rejected the argument that such requirements were racially discriminatory in purpose on the ground that they were a justified means to ensure elections reflected the preferences of an ideological majority, not a racial one. The Court then rejected – correctly, in our view – the VRA claim on the basis that while the Act protects minorities against vote dilution in representative bodies, the concept of vote dilution has no application to elections for a single office. The VRA does not, in other words, preclude jurisdictions from choosing majority-winner voting rules rather than plurality ones, even if voting is racially polarized.²⁸ By creating a “single-officeholder” exception, Butts insulated majority requirements for executive office from the pressures for proportionality at the legislative level.

Runoff elections are one means to ensure majority winners. But there are two practical problems with this approach in the US context. Turnout in runoffs in the United States tends to fall below that in the general election, which weakens the basis for believing the runoff ensures that only candidates with broad, majoritarian support get elected. In the 2020 Georgia Senate elections, for example, Republican David Perdue received 2.4 million votes, but fell just below 50 percent of the vote, while in the runoff, his opponent Democrat Jon Ossoff won with two hundred thousand fewer votes than Perdue had received in the first round – 2.2 million votes – due to lower turnout. That dynamic stands in contrast to France, where turnout in the second round runoff of the presidential election is typically higher than in the first round.²⁹ Perhaps the difference is that French voters expect to vote in a second round, since every presidential election has required that since the current system was created. The runoff is also two weeks after the first round, unlike the considerably longer delays for most runoff elections in the United States. Second, the need to hold a second election after a primary or general election imposes significant costs on jurisdictions already strapped for election-administrative funding.

Ranked-choice voting (RCV) is best understood as a means to ensure majority winners without these practical problems. To be sure, there are a number of policy rationales that proponents of RCV offer, including that it encourages a less divisive form of campaigning, permits voters to express their sincere preferences without feeling they are wasting their votes, and avoids candidates with similar policy commitments from fragmenting the vote between them and delivering the seat to a candidate with a conflicting policy agenda.³⁰ But at its core, the most important argument for RCV is that it denies victory to factional candidates and rewards those who demonstrate the broadest appeal to voters. Because it does this in one election, RCV avoids the cost of running a second election and the drop in turnout that often results. RCV can be seen as a modern way of recapturing the original ideal that democracy should mean that only candidates who gain support from a majority of voters should be elected. At the times states shifted to plurality-voting provisions to avoid the time and expense needed for further rounds of voting, for practical reasons, RCV was not recognized as an option. Now that it is, it can be viewed as a better alternative than plurality-voting for legitimately determining who voters want to represent them.

But RCV itself comes in different variations, and some versions do a better job of selecting for true majority winners – Condorcet winners – than others. The version of RCV that has been adopted thus far in the United States entails eliminating the candidate with the fewest first-choice votes, if no candidate receives a majority of first-choice votes. The second-choice preferences for the candidate who has been eliminated are then transferred to those candidates, and the process is repeated until one candidate crosses the majority threshold or there are no more votes left to be transferred. But as more analysis of RCV has emerged, it has become clear that this system does not ensure the Condorcet winner is elected and, indeed, can eliminate a Condorcet winner.³¹ A different form of RCV that does a better job of identifying true majority winners is “Bottom Two” RCV; instead of eliminating the candidate last on first-choice ballots, this system engages in a pairwise comparison of the bottom two candidates and eliminates the one who loses in that comparison. But as Ned Foley has demonstrated, the form of RCV that comes closest to identifying the Condorcet winner is what he has dubbed “round-robin voting.”³² This approach uses the full array of information provided by ranked-choice ballots to perform pairwise comparisons between all the candidates; if a true Condorcet winner emerges, that candidate is elected, and the system has majoritarian-oriented default rules if no true Condorcet winner exists. Modern computing capacity allows the full set of comparisons to be run in no time. To be sure, the choice of the best RCV system would also have to take into account the likelihood of strategic voting and how different versions would fare in those circumstances, a matter beyond our scope here.

RCV is winning broader acceptance in states and cities, particularly in places where voters can directly adopt political reforms through ballot initiatives. But it is still novel and voters are reluctant to change familiar rules under which they have voted for years. Whether voters would be prepared to endorse any of these more sophisticated versions of RCV remains to be seen. But even the basic form of RCV currently in use does a better job than plurality voting in diminishing the prospects of factional candidates and enhancing the likelihood that candidates with majoritarian support will win – and decide to run, knowing that the system rewards such candidates.

2.2.3 Reforming Voting Systems to Re-establish Majority Winners

American elections are a two-stage process, with primary elections preceding a general election. But primaries can filter out potential candidates who would have the broadest appeal – who would receive a majority of the vote – when the candidates are put before the general electorate. When party leaders choose their nominees – as they do in many democracies and did in the United States before the advent of the direct primary in the early twentieth century – they have strong incentives to take “electability” into account. Party leaders want to be part of winning coalitions that control government or components of it, particularly if patronage or earmarks lubricate the returns to the victors. Primary voters might choose to take electability into account, but they do not have the same incentives as party leaders and can prefer candidates who more “purely” represent, in the view of primary voters, the party’s commitments.

If primary voters prefer “purist” candidates over electable ones, they can block candidates from reaching the general election who would have the broadest support. If that happens, voters in the general election can be faced with a choice between two ideologically pure candidates, neither of whom is close to reflecting the preferences of the median voter. To return to the recent French presidential election, some have speculated that if France employed the US system of party primaries, Marine Le Pen would have ended up as President. She would have won the primary among candidates on the right, while Jean-Luc Mélenchon would have won the primary among candidates on the left, with Macron voters split between the two. In the ensuing general election, Le Pen would have beaten Mélenchon.

In the United States, voters in some states indeed perceive this dynamic to be taking place. Absent replacing primary elections with a different means of winnowing the field for the general election, the question is whether primaries can be reformed to reduce the risk of eliminating candidates with the broadest general election appeal. The most significant reform in this direction was recently adopted by Alaskan voters, who endorsed a ballot measure creating a “Top-4” primary election, with RCV to be used in the general election.³³

The Top-4 primary lists all candidates on a single primary ballot but allows candidates to designate themselves with a party affiliation, or as nonpartisan, or as undeclared. All voters vote and the four candidates who receive the most votes go on to the general election. The winner in that election is determined through RCV. This system eliminates the party primaries altogether. But it retains a primary election as the means of filtering candidates for the general election. The theory behind Top-4, to be used for the first time in 2022, is that candidates who have broad appeal are likely to be among the top four vote-getters. Because the general election uses RCV, the candidate who wins is more likely to be a majority winner than a candidate chosen through the traditional mechanism of a party primary followed by a plurality-vote general election.³⁴

“Sore-loser” laws, which exist in approximately forty-seven states, can be another barrier that precludes majority winners from being elected.³⁵ These laws accentuate the effect of traditional primaries. They bar candidates who compete and lose in a primary election from running in the general election as an independent candidate or nominee of another party. If states shifted to Top-4 primary structures, these laws would become irrelevant. But as long as we have traditional primaries, these laws enhance the way primaries can block candidates who might have broad appeal from reaching the general election. Indeed, in the last two decades, we have had two prominent examples of relatively more moderate incumbent Senate candidates who lost their primaries nonetheless go on to handily win the general election in states that did not have sore loser laws or permitted write-in candidacies of even those who had lost party primaries.³⁶

When the Supreme Court upheld the constitutionality of these laws, it reasoned that the primary was designed to settle the choice between contending forces within a party and that the general election ballot was “not a forum for continuing intraparty feuds.”³⁷ But the Court’s decision occurred in the era before hyperpolarized parties had emerged, along with concerns that party primaries were vetoing candidates whom a majority would support in the general election. In addition, a risk of permitting sore losers to compete in the general election was that they would fragment the field and make more likely the election of candidates with less than majority support. But with RCV, that problem can be eliminated today. The repeal of sore-loser laws, combined with RCV general elections, could enhance the prospects of candidates who might face tough primaries but would be majority winners before the general electorate.

2.3 Political Structures

In Federalist 10, Madison famously wrote that the expanded size of the Republic would be an antidote to faction and the guarantor of broader deliberation in the service of the public interest. History proved him wrong on both counts. National political parties eventually formed and deliberation proved more effective across the party divide than among the unrepresented citizenry. The impetus for RCV begins at the local level, where party competition is typically nonexistent³⁸ and the ready capture by extremes is difficult to surmount.

Consider the 2021 Buffalo mayoral election as a cautionary note. The incumbent mayor, Byron Brown, stunningly lost to a declared socialist, India Walton, who drew support from national party progressives, such as Alexandria Ocasio-Cortez. Buffalo is a reliably one-party Democratic town, meaning the party primary typically is the only election, even though the primary draws few voters. In the primary, Walton received 11,000 of the 21,000 votes cast.³⁹ Brown was forced to run for re-election as a write-in candidate, appearing nowhere on the ballot – in fact, there were no other candidates on the ballot other than Walton. Brown managed to win almost 60 percent of the votes, despite not being on the ballot, in an election where over 64,000 voters turned out.⁴⁰ With the weakness of the parties in terms of money and messaging, they too readily become subject to takeover by an activist minority, fueled by small donors or a few large benefactors, and reflecting the margins of electoral politics, rather than what the majority in a large-turnout election wants.

To be sure, the absence of majority vote requirements is but a subset of design defects that enshrine outsized minority control. The Senate, by virtue of the state-based distribution of population, enhances the power of national minorities, and the Electoral College can do so as well. It is possible to make the Electoral College more majoritarian, if all states, for example, would choose to allocate their electors in proportion to the popular vote in their state. But coordinating the states in that fashion, when Congress lacks the centralized power to impose a uniform approach on the states, is an unlikely prospect. Short of such options, these institutions are hardwired into the Constitution and cannot be made more majoritarian except by constitutional amendment.

But the excess factional control today pushes further to the core understandings of how democratic accountability should work. After all, following Goldwater and McGovern, the Republicans and Democratic parties veered to less ideological candidates and in short order could speak of Presidents Nixon and Carter. Partly, no doubt, the Democratic Party was exhausted by the Vietnam War and the Republican Party discredited by Watergate. More fundamentally, each party had the internal wherewithal to hew back to the center to reform an electoral foundation that could provide a governing coalition.

This pull toward electability identified by the median voter theorem might have been most realistic in an era in which party leaders had more control of both who the party nominated to run and of rank-and-file members once in office. Party leaders have the strongest incentive to internalize the need to form winning coalitions capable of giving the party strong control of a legislative chamber. Those incentives are not extinct – witness Sen. McConnell trying to play a more significant role in Republican Senate primaries after the disastrous 2012 cycle in which the party ended up saddled with unelectable nominees who destroyed the party’s opportunity to gain control of the Senate, or Rahm Emmanuel’s successful efforts as Chair of the Democratic Congressional Campaign Committee in the 2006 cycle to recruit conservative Democrats to run in competitive districts, which enabled Democrats to capture control of the House.⁴¹

Nonetheless, the inescapable fact is that party leaders now have much less control than decades ago in both determining who the party’s nominees will be and corralling those in office to unify behind a party position. In the primaries, as politics has become hyperpolarized and more tribal, more voters are determined to vote for “purists” even if those candidates are widely viewed as less electable. With the emergence of social media, the rise of outside spending, the increasing prevalence of “safe” election districts, and the explosion of small-donor Internet-based fundraising, candidates and officeholders are now more capable of⁴² existing as independent free agents.⁴³ They can reach a national constituency, through cable television and social media, without being dependent on high-ranking positions on major committees. They can fund their campaigns in the manner of start-ups without being as dependent on party resources. They do not need plum committee assignments for national visibility or fundraising power. As a result, party leaders have lost significant control over who gets nominated and have lost significant leverage over members once in office. This is why the parties are more internally fragmented and more difficult for party leaders to govern. Indeed, a major theme of John Boehner’s recent memoir is his complete inability, as Speaker of the House, to control the extreme right flank of his party – what he called the “chaos caucus.” All this means the median voter theorem might well not be applicable to the current structure of politics and political competition. In the absence of stronger party institutions, the polarizing effects of small donors, campaign activists, and social media come to dominate the political scene. The newly minted verb “to primary” is now the most important disciplining device in fidelity to the agenda of the poles of the parties. This is why devices such as RCV or majority run-off or top-four, which give the majority a chance to reclaim electoral results, have become more appealing.

In the early days of the law of democracy, the Court was able to strike a major blow for majoritarianism. Even if the Court had the will to do so today, though, it is not clear how much judicial decisions can bring about the structural reforms necessary under current conditions to enhance majoritarianism. These changes will more likely come through voter-initiated measures or legislation. Such mechanisms are necessary precisely because of the inability of the party to deliver majority-appealing candidates. Yet these same majority-reinforcing tools risk obviating the need for parties altogether, and compounding the problem that gave rise to their appeal. Reforms always risk entry into the world of the second best. Here the risk is that reinforcing the majoritarian strain of democracy may further erode the party structures, whose weaknesses are a major reason for the need for majoritarian protection at present. In the absence of meaningful bipartisan competition, however, whether at the local, statewide, or even national level, current tides might require redirection in favor of the majority at present. Persistent minoritarian capture threatens democratic legitimacy. The threatened tyranny of the minority of the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront.