Lawrence Lessig Urges U.S. Voters to Support Buddy Roemer for Americans Elect Nomination

Lawrence Lessig, prominent law professor and author of several books on campaign finance reform, has this Atlantic Monthly column, urging his readers to vote for Buddy Roemer in the Americans Elect nomination system. Lessig says that his previous support of Americans Elect has garnered an angry reaction from many of his readers, who claim that the Americans Elect nominee might “spoil” President Obama’s chances for re-election, or Mitt Romney’s chances.

Lessig responds to this argument by pointing out that about a week ago, Roemer said he would withdraw from the election if he can’t win. In this recent column, Lessig is more specific. He says a few days before the election, Roemer would ask his voters not to vote for him, if polls show he can’t win. Lessig points out that, in a sense, the U.S. does have an informal version of Instant Runoff Voting. The polls can be considered to be the “first round”.

The problem with the Roemer maneuver is that in many states, early voting now means that elections are conducted with a month of voting, not just one day as in the past. Furthermore, not every voter would learn that Roemer had asked voters not to vote for him. It would be impossible to withdraw Roemer’s name from the ballot, just a few days before November 6, 2012.

Thomas D. Elias, one of California’s Most-Read Newspaper Columnists, Says Top-Two System Has a Wasteful Aspect to It

Thomas D. Elias is a widely-read newspaper columnist. His column is syndicated in over fifty California daily and weekly newspapers. During the campaign involving Proposition 14, California’s top-two “open primary” system, Elias was one of the ballot measure’s most enthusiastic supporters. He wrote three or four columns in support of the measure.

Now, however, he describes the system as having a “wasteful” aspect to it. See his latest column here. He points out that it is overwhelmingly likely that U.S. Senator Dianne Feinstein will poll more than 50% on June 5, on a ballot containing the names of 24 candidates for U.S. Senate from five different parties. But, as his column points out, it doesn’t matter how well she does; she will need to run again in November. That is because the Washington and California top-two systems were written to conform to the U.S. Supreme Court ruling Foster v Love, issued in 1997. That decision told Louisiana it could no longer hold its first round of top-two congressional elections in September or October. Federal law, since 1872, has told the states to hold their congressional elections in November. If a state wants a run-off to guarantee that the winner gets 50%, that state must hold its run-off after November. California and Washington top-two proponents didn’t want to do that, so they wrote their measure so that there is always a congressional election in November, but only the top two vote-getters may run. They must run in November, even if one got an overwhelming majority in June. That is now being noticed, at least by Elias, and he correctly concludes that is wasteful, both for the candidates and the voters.

Not every California reporter understands this. For example, on Saturday, May 12, Lodi News-Sentinel reporter Ross Farrow wrote in this article, “The top two vote-getters will square off in the November general election. However, if any of the three congressional candidates get more than 50% of the vote, that candidate will win the election outright in June.” It is not surprising that many Californians, and even California newspaper reporters, are confused. Proponents of top-two constantly say the California top-two system is “just like” the standard two-round non-partisan elections in county elections. That is not correct, because in California non-partisan county elections (and also in a few California cities) the first round is an election, and a second round is only held if no one gets 50% in the election itself. Generally someone does get 50% in the election itself and no run-off is needed. UPDATE: The Lodi newspaper story has been corrected.

Political Science Evidence Overwhelmingly Says Top-Two Systems do not Elect More Centrists

Political scientists who have studied primary systems invariably find that top-two election systems do not elect more centrist candidates. Here is a summary of that evidence:

1. Professor Todd Donovan of Western Washington University concluded, “The partisan structure of Washington’s legislature appears unaltered by the new primary system” and “The aggregate of all of this (implementation of the top-two system starting in 2008) did not add up to a legislature that looked different or functioned differently from the legislature elected under a partisan primary.” These statements are from his article, “The Top Two Primary: What Can California Learn from Washington?” published in the California Journal of Politics & Policy, February 2012 (vol. 4, issue 1).

2. Professors Boris Shor and Seth Masket studied Nebraska’s non-partisan legislature in 2011 and concluded “Despite a history of nonpartisanship dating back to the 1930s, the Nebraska state legislature appears to be polarizing. How does polarization happen without parties? Using interviews, roll call votes, and campaign finance records, we examine politics in the modern Nebraska unicam. We find that term limits, which began removing incumbents from office in 2006, created opportunities for the state’s political parties to recruit and finance candidates, and they have done so in an increasingly partisan fashion…The results offer a compelling example of parties overcoming an institutional rule designed to eliminate them.” This is from the Abstract to their article “Polarization Without Parties: The Rise of Legislative Partisanship in Nebraska’s Unicameral Legislature” which can be read on-line at this link.

3. Professor Shor also intensively studied polarization and partisanship in all 50 states legislatures, using hundreds of thousands of bits of data, mostly roll call votes and legislative questionaires. He determined which states were most polarized. See his conclusions here. Professor Masket then looked at the Shor data and concluded there is no relationship between type of primary system and degree of partisanship and polarization. See Masket’s article here.

4. Professor Eric McGhee studied partisanship in California’s legislature during the blanket primary years, and concluded “Electoral Reforms won’t fix California gridlock.” That article was published in the San Francisco Chronicle on March 14, 2010. Read it here.

5. Professor L. Sandy Maisel wrote a letter on August 10, 2010, to Ralph Nader, in which he said, “I am against top-two systems for three main reasons. First, I think the argument of proponents – that it will lead to the election of more moderates – does not hold water. It has not been the case in Washington, nor in Louisiana, where the system is similar…Generally, if there is a crowded primary, extremist and/or single-issue candidates will emerge at the top.” Maisel has written many books on U.S. political parties and is considered one of the leading experts on the U.S. party system.

6. Finally, Richard Winger’s examination of Washington state legislative elections under the top-two system in 2008 and 2010, in elections with two members of the same major party running against each other in November, rebuts the idea that top-two elections between two members of the same party elect the more moderate candidate. There were no statewide or congressional elections in Washington state in either 2008 or 2010 between two members of the same major party. For legislative races, there were 8 such races in 2008 and 10 in 2010. In some of them, the incumbent was re-elected, which obviously changed nothing. In the races without an incumbent, top-two proponents believe that the more moderate candidate will win. But this did not happen. In 2010, two Republicans ran against each other, in races with no incumbent, in two districts. In the 2nd district (seat 2), J. T. Wilcox defeated Tom Campbell. Campbell was the centrist, refusing to join his own party’s caucus, and enjoying the support of labor unions; he lost to Wilcox, who was an orthodox Republican. In the 31st district (seat 1), Cathy Dahlquist defeated Shawn Bunney. Dahlquist campaigned by using the label “conservative” prominently in her advertising and listing other “conservatives” who had endorsed her. Bunney campaigned by stressing that he was endorsed not only by the state’s Republican Attorney General, but by the State’s Auditor, who was a Democrat.

In the only 2008 race with one Republican running against another, and no incumbent, Shelly Short defeated Sue Madsen in the 7th district (seat 1). When I asked Madsen which of the two of them was more conservative, she said, “It’s a dead heat.”

Races between two Democrats in November were more difficult to characterize. In 2010 in the 34th district (seat 2), Joe Fitzgibbon, age 23, who was backed by labor, defeated Mike Heavey, son of a former Democratic state legislator. In 2008, in the 46th district, seat one, Scott White, who was endorsed by labor, defeated Gerry Pollet. But also in 2008, in the 36th district (seat 1), Reuven Carlyle, who had some labor endorsements, defeated John Burbank, who had more labor endorsements. In 2010, in the 27th district (seat 1), Washington state’s leading gay activist, Laurie Jinkins, defeated Jake Fey, who was backed by labor unions. Jinkins had been instrumental in defending the state’s civil unions law in 2009 against a referendum, and in 2010 she became the first open lesbian elected to the Washington legislature.