The “Americans Elect” Movement to Reform Presidential Elections: How Will It Work? And, Is It a Wise Idea?

Posted in: Election Law

This week, a national movement to reform presidential elections reached a significant milestone.  I’m not talking about the important National Popular Vote Compact movement about which I’ve written extensively, including in a recent column viewable here.  I’m talking instead about “Americans Elect,” an organization that is striving to put a “nonpartisan” presidential/vice-presidential candidate slate—determined by citizens around the country who will participate in an “online convention” next year—on the ballot in all 50 states before next November’s presidential election.

On Monday, Americans Elect formally qualified to have its candidates on the California ballot; the organization had collected over 1.5 million signatures in the Golden State – the largest single signature-gathering effort in California history.  With this week’s development, the organization has earned space on presidential ballots in 12 states, and has signaled that it has the resources to make good on its goal of being on the ballot everywhere in the nation before next fall.

In the space below, I describe how the Americans Elect process is supposed to work, and then offer a few thoughts on the wisdom of the enterprise.

How the Americans Elect Process Is Envisioned to Play Out

The essence of Americans Elect is broad-based online participation by Americans of all political stripes in selecting a nonpartisan presidential ticket that will be an alternative to the tickets put up by the two major parties.  Through the online organization, citizens will communicate with each other about what their top issues and concerns are, and then nominate potential presidential candidates (who must meet the constitutional qualifications for the office).  Nominees can be members of any political party, and indeed could (judging from the organization’s website) presumably be candidates in the Democratic or Republican primary processes.

After a full online vetting process in which candidates will answer sets of policy questions driven by voters’ concerns, “delegates” will select their Americans Elect presidential candidate in an “online convention” next June.  Any registered voter, of any party or no party, can participate as a “delegate” and vote in this online convention.

If the top vote-getter in the online convention agrees to accept the nomination, s/he will then pick a running mate who must be from another political party (hence the organization’s characterization of its ticket as “nonpartisan”).  This ticket comprised of people from more than one party will then represent Americans Elect on the general election ballot next November in all the states for which the organization has achieved ballot access.

Is This Effort a Good Idea?  One Set of Problems:  The Spoiler Issue and Concerns About Possible Voter Confusion

Getting more Americans more directly and more deeply involved in the nominating process for presidential candidates, free from all the baggage of the apparatuses of the two major parties, is arguably a good thing.  And harnessing the power of the Internet to help voters across the country to participate in an organized, focused, substantive dialogue about issues and candidates across the political spectrum is similarly laudable.  Also, it is possible that a middle-of-the-spectrum movement that is not a formal third party could help move the two major parties towards compromise and conciliation.  And having such a movement be funded by people with no apparent partisan agenda—note, though, that the identities of all the funders of this movement are not known at present—would be remarkable. But there are clear downside risks to this venture as well.

First is the spoiler problem.  Generally speaking, general election ballots for president/vice-president ask voters to choose one of the “tickets” listed on the ballot, with each ticket consisting of a presidential and a vice presidential candidate.  Ordinarily, the executive ticket that garners a plurality of votes captures the state’s presidential electors, and the set of electors who are pledged to the winning ticket then vote for that ticket in the so-called electoral college (assuming the candidates are alive when the vote is taken).

In other words, in virtually every state, the ticket of presidential/vice presidential candidates that receives more votes than any other ticket in the state wins all of that state’s presidential electors in the electoral college contest.

What this means is that any third non-trivial ticket, whether of a formal third-party or not, can tip the balance between the two dominant parties in a state whose voters are closely divided among the Democrats and Republicans.  And since state presidential ballots do not permit voters to register a second-choice preference if their top-choice ticket fails to win the most votes, the presence of a third non-trivial ticket on a state ballot can sometimes result in the state being won by a major political party despite the fact that this party’s policies are actually less favored among the state’s voters than those of the other major party.  Florida in 2000 is an arguable example; the votes that the ticket headed by Ralph Nader got likely would have been cast for Democrat Al Gore had Nader not been on the ballot, and yet because of the votes Nader got, Republican George Bush won the state.  This was a big deal; because the national election was so razor thin (as could be true again in 2012), winning Florida enabled Bush to win the White House.

This possibility that a state (and perhaps the nation) could be won (for electoral college purposes) by a presidential candidate whose policies are less attractive than those of other candidates is heightened by the fact that, conceivably, someone could be a nominee for a major party (Democrats or Republican) as well as for Americans Elect.  So, for example, if Americans Elect nominated Barack Obama (and if he accepted), he would be at the top of two tickets on each state ballot—the Democratic ticket (in which his vice president would presumably be a Democrat, say Joe Biden), and the Americans Elect ticket (in which his vice president would have to be a Republican or Independent, say, John Huntsman).  And because states generally have voters simply select one “ticket,” Obama’s support might be split between these two tickets, enabling the Republican ticket to receive the most votes and thus to prevail in a given state, even if Obama was the first-choice presidential candidate by an overwhelming number of the state’s voters.

This problem could be ameliorated if a state ballot permitted counting all the votes for each presidential candidate separately, rather than on a “ticket-by-ticket” basis, but states are not required to do that.  And votes might easily be confused about how their preferences will be tallied.  For these reasons, major party candidates who think they have a good chance of winning their party’s nomination may decline to be considered by Americans Elect.

Which major party might Americans Elect hurt more?  It’s hard to know this without knowing who Americans Elect will pick as its standard bearer, something that won’t happen until next June.  But to the extent that the organization seems fueled by people who want to pursue a middle-ground set of policies, its ticket might draw more votes from, and thus do more electoral damage to, whichever of the two major parties that is perceived to have selected a more moderate, less extreme, nominee.

Some Misconceptions Inherent in Americans Elect’s Requirement That Its Nominee Pick Someone From a Different Party to Be Its Vice Presidential Candidate

What are we to make of Americans Elect’s insistence that its ticket include a president and vice president of different parties?  As I have written at some length in academic essays, nothing in the Constitution or federal election law requires that an elected president and vice president be of the same party.  Before the Twelfth Amendment, there were instances in which a president and vice president of opposing parties served at the same time (e.g., President John Adams and Vice President Thomas Jefferson, his opponent from the other major party).  And some of America’s founders affirmatively liked this “intra-branch” balance.

For this reason (and because sometimes a major party’s vice presidential candidate is arguably unfit for possible succession), it would not be absurd to think about structuring ballots so as to elect presidents and vice presidents separately.  Normally, voters would prefer to have both come from the same party.  Yet separate elections might improve the quality of vice presidential candidates.  And occasionally voters might prefer a split federal executive.

But should the voters who might like the Americans Elect presidential nominee be forced to accept a vice president from another party?   Does it make sense, if the Americans Elect ticket is to be viable, to mandate lack of party uniformity?

I don’t think so.  For starters, the bipartisanship that Americans Elect organizers think will come from having a vice president of a different party is illusory, simply because vice presidents don’t have much constitutional power to influence anything.  Unlike state lieutenant governors, in whom state constitutions often vest real authority, the vice president has little inherent authority and is, in reality, only as influential as the president chooses to make him. The only constitutional function assigned to the vice president is to preside over the Senate—a function that is, as the soon-to-be-Vice President Thomas Jefferson pointed out in January of 1797, more legislative than executive.

A vice president exercises meaningful independent authority only if s/he should succeed to the presidency.  And since Americans Elect is not requiring the president to resign two years into the term, such succession would occur only haphazardly.  And if it did happen, it would result in policy vacillation, not bipartisan policy moderation, the ostensible goal of Americans Elect.

Indeed, one reason why we elect presidents and vice presidents using party tickets is that we generally think that temporal consistency within a four-year term is a policy virtue (especially, perhaps, as relates to foreign affairs).  And we also don’t want to create an incentive for political enemies to try to impeach or incapacitate a president in order to obtain a different set of policies.  (I do not want to overstate these advantages of consistency here.  If we really valued consistency above all else, we probably would try to discourage the practice of a presidential candidate’s picking someone from a different “wing” of the party as the vice presidential nominee to create “balance.”  We also might tweak the succession statutes to ensure partisan continuity in the line of succession after the vice president.  But the fact that consistency doesn’t trump everything else does not mean it is not generally considered to be an important virtue.)

In any event, if Americans Elect wanted real bipartisan policy out of an administration,  a better approach might be to require the nominee to sign a pledge (that, while not legally enforceable, would exert a large political constraint) to reserve certain key cabinet posts ( where meaningful power is often wielded) to members of the other party, or to appoint one-half of new federal judgeships to persons who are registered with the other party, or to elevate to seats on the federal appellate courts a certain number of judges who had been appointed by a past president of the other party, etc.

The Downside of Innovation That Is Too Rapid

All of this brings me to a more general concern—that the changes possibly wrought by Americans Elect, or something like it, require a lot of time to study and weigh.  In general, significant structural changes to the presidential election system should be put into place far in advance of the next quadrennial election, so that the candidates and the analysts and the voters all have time to digest and factor in the new possibilities, and so that potential pitfalls can be anticipated and remedied.

This is why, for example, I have argued that the National Popular Vote system I have advocated should be adopted years before it is first implemented.  That Americans Elect might become operational in most or all states for the 2012 election, even though it is just now being unveiled and vetted, seems a bit worrisome.  In the past, when there has been the emergence of a third party, and thus a third non-trivial ticket on many ballots, the new party’s policies and likely nominee have been known pretty far in advance of the general election.  The Internet makes it possible to conceive of an online nominating convention that does away with a primary/caucus process and that picks a nominee quite quickly and quite late, but the very speed with which technology enables things to be done also gives us all less time to process their implications.

Posted in: Election Law