A possible transformation of state electoral systems
Quinn Yeargain is an Assistant Professor at Widener University Commonwealth Law School
In this week’s “Constitutional Conversations” post, Quinn Yeargain explores the extensive experimentation with electoral reform at the state level. Is this electoral reform experimentation introducing a new era of democratization and hopefully political depolarization?
In the United States, structural constitutional change seems unlikely—at least, anytime soon. At the federal level, it’s almost unthinkable to imagine a meaningful change to the allocation of power among the executive, judicial, and legislative branches, much less a formal change to how members of those branches are selected.
It’s possible that the minoritarian structures set up by the U.S. Constitution might be modified by statutory changes. Earlier this year, Congressman Earl Blumenauer introduced a bill to increase the size of the U.S. House for the first time in a century, though its chances of passing are slim. The National Interstate Popular Vote Compact, which would do an end-run around the electoral college by assigning states’ electoral votes to the national popular-vote winner, is slowly chugging along, though whether it reaches a critical mass of 270 electoral votes or is even constitutional remains unclear. And a growing number of states have amended their statutes on how U.S. Senate vacancies are filled to require same-party appointments, though again, the constitutionality of these changes is debated.
But while the possibility for change at the federal level remains murky, we may be in the midst of a change in state electoral systems. Democratic innovations—like top-two primaries, ranked-choice voting, and nonpartisan redistricting commissions—are being tested out across the country. As states rewrite their constitutions and statutes, they frequently borrow from each other. As a result, the experiences of states and municipalities with these new systems, if positive, could cause other jurisdictions to adopt similar systems.
Over the last 250 years, constitutional and statutory changes have made state governments almost unrecognizable. At the beginning of our country, few states provided for the direct, popular election of governors—in many states, governors were elected by the legislature, and in most of the others, the legislature chose the governor if no candidate received a majority of the vote. Only a handful of other states elected any other statewide officials. Legislatures, especially state senates, were elected from unequally sized districts, creating a massive imbalance in relative voting power.
But a series of changes slowly eroded the inaccessibility of state governments. A wave of democratization in the mid-nineteenth century culminated in the adoption of new constitutions that converted many appointed (or indirectly elected) positions into statewide elected offices. Majority-vote requirements were abolished in most states that still had them. The terms of executive branch officials and state legislators were lengthened. As the century continued, and the changing economy and society demanded a more responsive government, more and more elected officials were created.
By 1912, the median state elected ten different executive officers—sometimes offices as niche as the State Geologist or the Chief of the Bureau of Statistics in Indiana, or the Irrigation Board in Kansas. Many progressive reformers felt that states elected too many offices. Leaders in the newly formed Short Ballot Movement urged the adoption of constitutional amendments and statutory changes to cut down on the number of elected offices and increase governors’ appointment powers. Over the twentieth century, these changes were slowly adopted. Many elected offices were phased out altogether—like supreme court clerks, state printers, or registers of land offices. Others, like elected auditors, treasurers, and superintendents of public instruction, were abolished in some states but retained in others. And the adoption of the one-person, one-vote standard by the U.S. Supreme Court in the 1960s resulted in the reapportionment and regular redistricting of state legislatures.
For the last fifty years or so, state democracies have remained relatively consistent in their composition. State legislatures and voters have tinkered with their systems a bit, but larger, structural changes haven’t taken place.
In the absence of structural change, however, we’re starting to see electoral change—which may suggest that we’re in the middle of a new era of democratic reform. States are beginning to experiment with different electoral systems, and these ideas are spreading very slowly across the country. In many of these cases, states are repurposing the crux of an older idea—the democratic legitimacy theoretically conferred by a majority-vote requirement—with modern sensibilities.
California and Washington adopted top-two primaries in the 2000s, in which all candidates of all parties appear on the same ballot and the top-two candidates advance to the general election.
Alaska and Maine implemented ranked-choice voting in the last few years; Maine’s system only applies in certain elections, and Alaska’s debuted for the first time in its special congressional election in 2022.
Georgia and Mississippi have reformed their majority-vote requirements. In Mississippi, the state used to have a double-majority requirement in state elections, where if no candidate received a majority of the vote statewide and in a majority of State House districts, the State House would pick the winner. In 2020, voters ratified a constitutional amendment abolishing the double-majority requirement, and instead requiring a runoff election if no candidate wins a majority statewide. After the 2020–21 U.S. Senate elections in Georgia, the legislature moved to shorten the runoff campaign period and Secretary of State Brad Raffensperger has urged the legislature to abolish them altogether.
The adoption of these new rules and systems has started to inspire similar changes to be proposed in other states. The adoption of top-two primaries in California and Washington led voter groups in Arizona, Florida, and Oregon to (so far unsuccessfully) propose similar measures. Systems similar to Alaska’s top-four, ranked-choice voting system were proposed in Arkansas and North Dakota in 2020, but both were struck from the ballot for technical problems. Nevada voters approved a constitutional amendment that proposed top-five primary in 2022, and if approved again in 2024, it’ll be adopted.
The success or failure of these systems—in reality or in perception—will likely affect their ability to spread to other states more than anything else. The poor rollout of ranked-choice voting in the 2021 New York City mayoral primaries, and possible voter regret over adopting the top-four primary in Alaska, could stall further adoption of similar systems. Similarly, as top-two primaries enter their second decade in California and Washington, cracks may be emerging in the systems that could chill the use of top-two primaries elsewhere. Top-two primaries can result in a runoff where both candidates are Republicans or Democrats—colloquially known as a “lockout”—which can produce or encourage undemocratic behavior. These lockouts can result, for example, in two candidates advancing to the general election that are unrepresentative of their constituency, which encourages the political parties to game the system so that at least one of their candidates advances.
It can frequently be hard to appreciate a moment of change as it’s happening—and, in the end, the state experiments that are taking place right now might end up as bizarre anomalies that are done away with in the future. But, on the other hand, they might be tapping into voter dissatisfaction with the flaws of our country’s minoritarian political institutions and our two-party duopoly. And while structural change is still unlikely at the federal level, the proliferation of state-level changes provides reformers with the chance to test out different methods of election in laboratories of democracy—and could alter our conception of American democracy.