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Voting rules matter

By Jack M. Balkin

It appears that John McCain is the anointed (at least by the press) nominee of the Republican Party, not least becasue he carried a number of Northeastern states in which he basically stands no chance of winning in November and because he won 33% of the vote in Missouri and, apparently, 44% of the Republican vote in California. As to the former, the winner-take-all feature had been engineered to slingshot Rudy Giuliani into the lead. Obviously, things changed. (California is not winner-take-all for the Republicans.) Missouri is also a winner-take-all state, which means, by definition, that a candidate rejected by 67% of the relevant electorate can nonetheless "win" because of being first-past-the-post. Perhaps McCain might have won in a run-off or alternative transferrable vote, but there is certainly reason to doubt this in Missouri.

I obviously wasn't watching all of the channels and assorted pundits, but my impression is that most of them, like most of the press in general, are hopelessly addicted to horseracing, where indeed first-past-the-post is everything. But isn't it a bit odd that the candidate for one of the major parties might well not represent a majority of his party, especially in the states where he will inevitably have to concentrate his fall campaign? (I would, of course, much prefer to eliminate the electoral college, but that's irrelevant. The campaign will be structured by the electoral college, which means that McCain will not be spending much time in New York or, I suspect, California.)

Democrats, of course, have eliminated winner-take-all contests, which means, I'm delighted to say, that, among other things, the Texas primary will matter, for the first time in many years. (Though I confess I don't expect to see the eventual Democrat nominee spending much time in Texas during the fall campaign itself.) Still, the winning candidate, whoever he or she may be, will probably be able to demonstrate the support of a majority of the Democratic voters, which is no small thing. Of course, the wild card is if Sen. Obama has both a delegate lead and a popular-vote lead, but the "superdelegates" decide to throw the nomination to Sen. Clinton. That, I think, would be a serious mistake, though, of course, it would be "within the law." Perhaps we can also look forward to an extremely bitter floor fight over counting the Michigan and Florida delegates that Sen. Clinton will claim to have won fair and square. In any event, we are certainly being led to understand exactly how important formal voting rules are for both parties. And we're getting a good "natural experiment" on the consequences of different rules.

Full post as published by Balkinization on February 06, 2008 (boomark / email).