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Will Al Franken or Norm Coleman be able to claim to be "the people's choice"?

By Jack M. Balkin

First things first: I of course support Al Franken and hope that he prevails over Norm Coleman, who appears to be a particularly odious opportunist in terms of his first embracing the Bush Administration and then, this year, pretending to distance himself from the Administration that he had helped to enable. That being said, and giving Minnesota due credit for appeaing to run a first-rate recount system, the election is Exhibit A for the problem of first-past-the-post systems of election.

Franken and Coleman each received approximately 42% of the votes cast on November 4. You can do the math. This means that over 15% of the vote was received by a third-party candidate, Dean Barkley (and, I gather, the remainder went to a couple of truly minor candidates). The one thing we can be sure of is that approximately 58% of Minnesotans will have cast their vote against the winner, whether it's Franken or Coleman. Obviously the 16% who voted for "other" in November may have a preference as between Coleman and Franken, but we--or at least I--do not know what it is, and no one in the universe has any "official" numbers.

Far better would be a voting system that allowed the winner plausibly to claim majority approval. One could do what Georgia does, so that Saxbe Chambliss, who received less than 50% of the vote against Jim Martin, had to compete in a runoff election against Martin, which he handily won. My own preference is the Alternative Transferrable Vote, by which every Minnesota voter would have rank ordered the candidates. Once Barkley is eliminated, then the second choices of those who had given Barkley their first-choice vote would be allocated, and the winner would have received some version of majority endorsement.

There is nothing in the Constitution that prevents states from adopting voting systems that would do a better job of meeting democratic criteria. It's also the case, incidentally, that several of the Democratic wins in 2006 featured non-majority winners who might have been helped by the presence of third-party candidates who deprived Republicans of likely votes. This might have been the case in Montana, and Sen. Webb in Virginia, too, might have been helped by the third-party candidate. So there's nothing partisan in my critique of the voting system that Minnesota, like almost all other states, has adopted.

Given everything that's happening in the world right now, this is a minor issue (unless, of course, Franken's win, together the political realities facing Republicans seeking re-election in 2010 gives the Democrats a filibuster-proof majority in the Senate, or a Coleman win makes it genuinely possible for Senate Republicans to play their role as filibustering obstructionists with regard to Democratic programs designed to meet the various crises).

For those who celebrate Christmas shortly, I hope it is a suitably merry one.

Full post as published by Balkinization on December 24, 2008 (boomark / email).