The rules for nominating presidential candidates are partly set by the political parties, and partly set by the government. State governments get to set the dates for political primaries, but the parties get to decide which delegates get seated at party conventions.
Until recently, the process was orderly. But Florida’s decision to run its primary in late January has opened the floodgates to a race to be at the front of the line. The result thus far is that, by the time 19 (or more) states have their primaries on Feb. 5, the primary season may be over, leaving effectively a nine-month general election season for president.
Such a system is bad for the public in a number of ways. The system will increase the role of money, because candidates will have to get their message out quickly and broadly in a number of very expensive states like California, Florida and New York. Voters will be deprived of a chance to learn about the candidates over time, and watch how they react during the course of the primary campaign season. We don’t know that party-nominated candidates will reflect the choices of a majority of each party’s voters. And of course, we’ll all be subjected to a blistering general election campaign starting ever earlier, making it even more difficult for the Congress and current president to get anything done during the elongated election season.
There’s likely nothing that Congress can do about this problem for this election, but it should seriously consider some sort of set of rotating regional primaries for future presidential elections. There are constitutional questions about whether Congress has the power to impose this system on states, but the recognition that a national solution is necessary to stop the race to the front of the line might induce courts to uphold Congress’ law imposing such a system.
The Ongoing Winner-Take-All Versus Proportional Electoral Vote Debate
Finally, there’s the matter of messing with how electoral votes are allocated. The proposed California initiative is a brilliant piece of political strategy, capitalizing on voters’ distaste for the winner-take-all method of choosing presidential electors in each state. (FindLaw columnist Vikram Amar wrote about it in detail earlier.) But again, to the extent the Electoral College is a problem, it calls for a national solution. California’s solution would be unilateral disarmament by the Democrats. (To make the measure fair, it would have to be matched by a similar move by a large state dominated by Republicans, but with a significant number of Democratic districts.)
In terms of a national solution, a constitutional amendment abolishing the Electoral College might be popular with voters, but it is unlikely to pass. Some states likely wouldn’t want to give up the advantages they enjoy under the current Electoral College system.
The proposed National Popular Vote plan could make an end run around this problem by providing that if enough states (holding a majority of the votes in the electoral college) agree, all of those states’ electoral votes would be awarded to whomever won the national popular vote for president. The proposal is open to criticism by those who like the Electoral College, and it too could be unconstitutional (as violating the Constitution’s “Compact Clause”). But it is at least a step toward a national solution.
We shouldn’t be surprised, in the post-Bush v. Gore environment, that political actors will take every legal step to gain political advantage. The trick is finding the will to impose law and order so that individually-rational decisions by these political actors don’t lead to irrational results for the country as a whole.
Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School Los Angeles, writes the Election Law Blog.
(This piece originally appeared on FindLaw.com)