presidential election; election law; election process law


Consider what 2016 might have looked like if this better electoral system had been in place. Bloomberg then could have entered the race without risking being a spoiler. In a three-way race—Bloomberg, Clinton, and Trump—Bloomberg might have fizzled out, leaving a two-way race between Clinton and Trump. Since that is essentially how the election ended up anyway, the country would have been no worse off for having had a chance to consider Bloomberg as an alternative. But suppose, however, with Trump’s candidacy spinning out of control in a series of unacceptable comments (as it appeared to do in early August),11 the American electorate might have preferred a head-to-head matchup between Bloomberg and Clinton, rather than one between Trump and Clinton. Maybe Clinton would have beaten Bloomberg in that head-to-head matchup. That is fine; that is a democratic choice reflecting the preference of the electorate. But maybe Bloomberg would have beaten Clinton. We will never know, because the actual system in place was not designed to enable the American electorate to have that choice. In this respect, the existing system is deficient. It deprives the American electorate of an option it should have. The purpose of this Article is to offer a repair for this deficiency.