Every presidential election cycle, people and pundits complain: why Iowa and New Hampshire? Inevitably, they offer improved ways of nominating presidential candidates. Just as regularly, nothing changes.

In the world of the party nomination process, the delay in releasing the 2020 Iowa caucus results is completely irrelevant. The precinct caucuses elect delegates to county caucuses, which in turn elect delegates to a state convention, which in turn elect 41 delegates to the national convention — in July. There is no problem if it takes several days to tabulate the results.

But in the world created by the media and public expectations, the caucus is not about delegates, it is the first “official” vote on the candidates, a make-or-break factor in the flow of money and volunteers. Whoever the media anoints as the “winner” — by having a small plurality of the vote or perhaps merely by doing better than expected — gets more and better coverage. Candidates faring poorly often drop out before hearing from any other voters.

This year’s tallies show how meaningless the Iowa results ought to be. Bernie Sanders had a plurality of 6,000 votes over Pete Buttigieg based on first preferences, which dropped to 2,500 in the final tally after votes for “non-viable” candidates were redistributed. The vagaries of the state party rules mean that it is likely that Buttigieg will earn two more national convention delegates than Sanders. If we declare either of these two the “winner” based on the vote count, we are ignoring the 74% of caucus participants who preferred a different candidate (as well as the 72% of eligible Iowa voters who did not participate). But surely Joe Biden in fourth place is the “loser”? Only if we want to let 13,000 Iowans (the first count between Biden and Sanders) decide who should be president. After Iowa, Biden will trail Buttigieg and Sanders by only a handful of national convention delegates out of nearly 4,000 to be elected.

An Evolving System

Is the selection of delegates by primaries and caucuses the first stage in a government-run election for the most powerful national office? Or is it the selection of delegates to privately-run conventions controlled by non-governmental organizations? It’s a bit of both, even though most Americans don’t get this. I would not be surprised if many believe that the Constitution mandates presidential selection via primary elections and national conventions by Democrats and Republicans.

Iowa and New Hampshire go first by accident. Following criticism of the lack of popular participation in selecting the 1968 nominee, the Democrats changed their rules to require state parties to create an open and transparent selection process resulting in delegates pledged to a candidate. In 1976, Jimmy Carter showed that early victories in Iowa and New Hampshire could be used to build momentum via free media attention. Despite attempts to rationalize the system, the two early states strenuously defended their role, realizing that their status was a boon for the local economy.

Prior to the 1980 elections, the Democratic National Committee (DNC) adopted a rule restricting primaries to a 13-week period from March to June — except for Iowa and New Hampshire. Holding a late primary means that the race is often already decided, so many states picked the first allowable date, which eventually became Super Tuesday. To counteract this trend, the party added incentives such as bonus delegates for states with later primaries. In 2006, as a result of criticism that Iowa and New Hampshire are not demographically representative, the DNC added South Carolina and Nevada before Super Tuesday, but maintained the privileges of the first two states. By 2012, the Republicans adopted a similar schedule.

Potential Fixes

Changing the Order

Many elaborate plans have been proposed to change which states go first, or rotate the order, or create regional primaries. These proposals appeal to those who believe that the “cycle” should start with just a few states, preferably small ones, where candidates can practice “retail” politics. Any of these reforms would maintain an arbitrary advantage for earlier states at the expense of later ones. By maintaining a long nominating season, these reforms would not reduce the cost of campaigns.

A National Primary

A same-day national primary doesn’t suffer from these defects. Americans have always been in favor of a national primary, in keeping with the transformation, in the public mind, of the nomination process from a party-based one to a public one. A 2013 poll, the most recent I found, counted 58% in favor versus 33% against. Large majorities were in favor whenever this question was asked between 1952 and 1988. Holding a national primary would certainly increase voter turnout, since less-engaged voters would be more likely to know about it, and no candidate will drop out before all voters have a chance to participate. However, with more candidates it is more likely that no candidate would win a majority of delegates, giving the ultimate decision to the convention and contradicting the popular notion that only the voters should decide.

Ranked Choice Voting

Ranked choice voting can be used in state primaries to maintain the Democratic Party’s 15% “viability” threshold without discarding votes. (The Republican Party lets states choosing later primaries use winner-take-all but requires earlier states to use proportional allocation, with a threshold as high as 20%.) In 2020, four state parties, Alaska, Hawaii, Kansas, and Wyoming, will for the first time use RCV in party-run primaries to allow voters who support a “non-viable” candidate to provide back-up choices, much as caucus goers can do by moving to a different candidate. The system also helps ensure that votes are not wasted should a candidate withdraw after a voter mails a ballot. Maine has also adopted RCV for presidential primaries, but the law will not be in effect for 2020. Because Maine now has a state-run primary, the new law lets each party decide how to translate the results into delegates.

With a national primary, RCV could be used to determine the nominee directly using a 50% threshold. But in that case, there is no need to hold a convention: just let the voters select the nominee directly. If we go that far in creating a completely government-run system, there is really no reason for party primaries at all: just have a national election using RCV in one single election. This eminently sensible option butts up against the hard reality of an unchangeable, undemocratic electoral college. So for the moment we will seek other solutions.

The Difficulty of Changing the Nomination System

The brutal fact is that the presidential nomination system is unlikely to change except at the margins, even after the “epic fiasco” in Iowa in 2020. The reason is simple: no one is in charge. Each of the two national parties creates guidelines, but each state party independently decides how and when to select delegates. Every state government has rules that control the nomination process. A state or national party may not be able to influence the state legislature, which might be controlled by the opposition or might not want to change the customary date of a joint presidential and state primary election.

A national party can enforce its rules only by refusing to seat delegates: this right has been upheld by the Supreme Court. But even that sanction is not controlling, since the party cannot prevent a state from holding an election of delegates on its behalf, and it is politically hard to refuse to seat delegates that have apparently been duly elected by the voters.

The Democrats tried and failed to reduce the disproportionate influence of Iowa and New Hampshire prior to the 1980, 1984, and 2008 elections. Both states adopted an ”automatic trigger” law that allows them to reschedule should any other state try to go first. These states were successful in preserving — indeed, codifying — their privileged status in part because the prospective presidential campaigns having influence within the national party wanted to be on the good side of state politicians, since the early states and their voters would likely hold a contest even if sanctioned by the national party.

Unresolvable Contradictions

The more the system becomes a first-stage election open to anyone, the less it is possible for parties to exercise ideological control or peer review. The current system fails in both of its dual roles of party nominations and government-run election: there is no meaningful party control, and at the same time there are many violations of democratic norms, once you start to look under the hood:

• There are wide variations in state rules on who can vote in party primaries.
• Delegate allocation is not based on population, in violation of the one person, one vote standard.
• Even for the Democrats, who mostly use proportional allocation, there are many ways in which the distribution of delegates can vary from the distribution of votes.
• Voters have no say in the choice of the vice presidential nominee.
• The parties control who may qualify for debates.
• Most voters do not participate. Primary turnout has recently been around only 15% of the electorate for a party that has a contested primary. Fewer than 30% of all voters participated in 2016 and without a serious contest on the Republican side it is likely to be much less in 2020.

Can the Convention Pick the Nominee?

It is possible that in 2020 no Democratic candidate will secure a majority of convention delegates on the first ballot. In that case, the delegates decide. Instead of being only a publicity event, the convention would revert to its role as a decision-making body. If for example Sanders is the plurality winner but lacks a majority of pledged delegates, the party might instead choose a compromise candidate who received far fewer primary votes (or, conceivably, no votes) as both a stronger general election candidate and a better representative of the majority of primary voters.

But such a decision would no doubt produce bitter complaints from Sanders supporters, and would be viewed with suspicion by many Americans, who assume that the candidate with the most votes should win, no matter how large the majority voting for others, and who don’t believe that the convention delegates should pick candidates. The Republicans, and the Russians, would certainly use this controversy to undermine the Democratic nominee.

The Need for Peer Review

The national party conventions are the top decision making organs of the Democratic and Republican Parties. By making the delegate selection process open to all voters and nominations open to any self-styled candidate, we have made the legacy parties vulnerable to capture: not only do the delegates choose the party standard bearers for President and Vice-President, but they also set the party platform and write the party rules.

Elaine Kamack, the foremost expert on the Presidential primaries, argues that the system lacks peer review, and other experts agree. Kamarck writes: “if we are to be concerned about the quality of our presidents and if we are to be protected from demagogues and authoritarians, we may want to consider some ways of fitting peer review into the modern system.”

An Obvious Solution

In 2019 the Democratic majority in the U.S. House approved H.R. 1, a comprehensive elections reform bill that would create uniform standards for voter access and redistricting for Federal elections. Should this majority achieve governing power in 2021, a version of this bill is likely to become law.

Two additions to H.R. 1 could revolutionize Federal elections. Congress should assert that under the Equal Protection Clause of the Fourteenth Amendment, states must apply the same ballot access rules to old and new parties. Further, Congress should assert that the Freedom of Association Doctrine arising from the First Amendment requires that political parties have the right to select the method by which they nominate candidates. Congress should give the Federal Election Commission the power to register Federal political parties and set national standards for qualifying for the ballot in Federal elections.

These proposals are obvious in that they would put us in compliance with international standards, such as the OSCE Guidelines on Political Party Regulation, which advises:

“The ability for all parties to gain access to a place on the ballot should be equal and free from discrimination on any grounds.”

“The system for ballot access should not discriminate against new parties.”

“Parties must be able to select party officers and candidates free of government interference.”

How Would this Solve the Problem?

Separating party and government roles would allow each to perform its proper function. The government provides equitable access to the ballot and a fair electoral system. The parties organize supporters, raise money, develop ideas, recruit candidates, and vet and choose nominees. States could still organize party primary elections, but only with the consent of the party. Given the weight of tradition, I would expect that state Democratic and Republican parties will continue to hold such contests. But they will not be bound by the results of primaries unless they choose to be. They will also have the power to exclude candidates — but those candidates will have a reasonable alternative route to the ballot, which they do not have today.

Can Congress Do That?

Our seemingly national presidential election has been grafted onto the Constitutional system of selection by presidential electors. The Constitution says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” and foresees a very limited Federal role: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

Although states have the power to determine the method of appointing electors, Congress regulates Federal elections, including campaign finance laws, voter registration requirements, absentee voting, election security, and voting equipment — all equally applying to elections for House and Senate and for Presidential Electors. The Supreme Court has found that there is “broad congressional power to legislate in connection with the elections of the President and Vice President.”

More Candidates Will Prompt States to Require a Majority

With more candidates on the ballot, there could be more plurality winners. Votes for a weak candidate could lead to a state victory by a candidate not actually favored by the state majority. In a close election, these state plurality victories can lead to the election of a minority candidate (e.g. Bush in 2000 and Trump in 2016). Although this problem already exists, it would become more urgent to provide a solution when ballots routinely have more than two non-fringe candidates. States can readily prevent this “spoiler” problem by requiring a runoff or adopting ranked choice voting. In 2019 Maine adopted RCV for presidential elections, taking effect this year (although the Maine Republican Party is seeking to block it).

What if a Minor Party Wins Electoral Votes?

A nationally weak candidate could win a state, perhaps with only a plurality, thereby depriving another candidate of a majority of electoral college votes (as could have happened in 1948 and 1968 when three candidates won electoral votes). If a “third” presidential candidate wins enough electors to determine who has the electoral vote majority, the candidate can negotiate a deal with one of the two able to win, and then instruct his or her electors to choose that person. The deal could conceivably involve one or more cabinet positions, as is commonly the case in countries that have coalition governments. In requiring electors to meet and vote by written ballot, the constitution permits presidential electors to vote for whoever they want, despite state laws that attempt to bind them to the outcome of a public election. (The Supreme Court recently accepted a case to consider if states may fine electors who do not vote as pledged.)

Will the Ballot be Too Crowded?

There are many ways to deter completely frivolous candidates, such as requiring candidates:

• to be nominated by a Federally-registered political party, with an organizational structure and a minimum number of members;
• to pay a refundable deposit;
• to collect a reasonable number of signatures.

The deadline for naming candidates should be no more than a few weeks before the election, rather than the six months or more that many states today require for new or “minor” parties. Whatever the rules, they must be the same for both existing and new parties.

Will Americans Vote for a “Third Party”?

We don’t know: they haven’t really been given a chance. In 2016, the Libertarian Party was the only non-legacy party to have a Presidential candidate on every state ballot. The Green Party failed to qualify in six states. But neither of these parties tries to appeal to the majority, or even a large group, of Americans: it is their overriding interest in just being on the ballot that explains their willingness to collect thousands of signatures and jump through other hoops, beginning months before the legacy party conventions. Compare the fate of Republicans who wanted to provide an alternative on the general election ballot after Trump’s capture of their party: anti-Trump Republican Evan McMillan was able to qualify for the ballot in only 11 states.

In 2012, Americans Elect attempted to create a mechanism for a non-legacy party candidate to appear on the ballot. Despite spending $35 million over two years and collecting millions of signatures (1.6 million in California alone), Americans Elect qualified in only 29 states.

Even candidates running for legacy party nominations get tripped up by restrictive state laws: both Andrew Yang and Bill Weld tried and failed to qualify for the Ohio ballot in 2020. They needed 1,000 signatures: if they were trying to qualify as a non-party candidate, they would have needed 5,000; as a candidate of a new party, they would have needed 44,000!

Under today’s rules, there is no realistic way for serious candidates to seek the most important office other than as a Democrat or Republican — and no way at all after the legacy parties have chosen nominees, even if the choices are deeply unpopular, as in 2016.

There is No Easy and Effective Alternative

My proposed reform is not only obvious but fantastical. Americans do not fully appreciate the inherent contradictions in a government-run private nomination system, nor do they understand the link between discrimination against new parties and poor electoral outcomes.

Still, for the reasons outlined above, it is highly unlikely that the national parties, or any other actors, will make any but modest and incremental reforms to the Presidential nominating system. This is completely unacceptable: the power of the President has grown immensely, and the current nominating system neither meets democratic norms for a public election nor provides a role for political parties to vet candidates.

The modest yet revolutionary idea presented here — have Congress require states to follow international norms for regulating political parties — is the only way to make meaningful reform short of a constitutional amendment to elect the president by direct popular vote.

Which, now that I mention it, would not be a bad idea. In a future post I will present a way to make that happen that could overcome the enormous barriers to constitutional amendment through the Article V process.