May 6, 2004
"2-for-1 Voting"--An Op-Ed by Prof. Bruce Ackerman
(This essay was originally published in the May 5, 2004, edition of the New York Times.)
By Bruce Ackerman, Sterling Professor of Law and Political Science
With Ralph Nader bobbing along at 2 percent to 7 percent in the polls, now is the time to consider whether our system is flexible enough to avoid another election in which a candidate loses the popular vote but wins the presidency. The answer is yes -- if Mr. Nader chooses to cooperate.
In November, Americans won't be casting their ballots directly for George Bush, John Kerry or Ralph Nader. From a constitutional point of view, they will be voting for competing slates of electors nominated in each state by the contenders. Legally speaking, the decisions made by these 538 members of the Electoral College determine the next president.
In the case of Mr. Bush and Mr. Kerry, electors will be named by each state's political parties. But Ralph Nader is running as an independent. When he petitions to get on the ballot in each state, he must name his own slate of electors. While he is free to nominate a distinctive slate of names, he can also propose the very same names that appear on the Kerry slate.
If he does, he will provide voters with a new degree of freedom. On Election Day, they will see a line on the ballot designating Ralph Nader's electors. But if voters choose the Nader line, they won't be wasting their ballot on a candidate with little chance of winning. Since Mr. Nader's slate would be the same as Mr. Kerry's, his voters would be providing additional support for the electors selected by the Democrats. If the Nader-Kerry total is a majority in any state, the victorious electors would be free to vote for Mr. Kerry.
This plan is consistent with the original understanding of the founders. When they created the Electoral College, they did not anticipate the rise of the party system; they expected voters to select community leaders who would make their own judgments when casting their ballots for the presidency. In designating Kerry electors rather than insisting on his own slate, Mr. Nader would be giving new meaning to this tradition that refused to view electors as simply vehicles of a candidate's will. In effect, he would be enabling his supporters to rank their choices: Mr. Nader first, Mr. Kerry second.
Over the centuries, the electors have become creatures of their parties, though they sometimes cast independent votes. Yet the Supreme Court has made only limited concessions to this reality. It has allowed political parties to protect the integrity of their mission by giving electors a place on their party's ticket only if they promise to vote for the candidates nominated at their national conventions.
But the court has never allowed any state to impose sanctions on an elector who later chooses to vote independently. Indeed, its leading decision recognizes that any promise an elector makes to his party may well be legally unenforceable because it would violate "an assumed constitutional freedom of the elector."
Nevertheless, about half of the states have sought to compromise electors' independence by compelling them to vote for the candidate or party that put them on the ballot. As a consequence, officials in these states might be tempted to reject Mr. Nader's effort to name a slate of electors who are not pledged to vote for him in the final count. In response, the Nader campaign would be obliged to go to court to vindicate the independence of the Electoral College as well as its own First Amendment right to select the electors who best fulfill its political purposes. In contrast, it will be easier to carry out the strategy in the many states that have no laws against elector independence.
The choice, then, is Ralph Nader's. If he truly has no desire to be a spoiler in November, he can structure his candidacy to allow his supporters to vote both for him and for Senator Kerry. But he must act now, when he is organizing his campaign to get on the ballot.
Bruce Ackerman, the co-author of "Deliberation Day," is a professor of law and political science at Yale.