but
it's not a 3 person race and votes aren't counted that way
yet.
Voters in November might prefer to elect a Republican, like Haley, who can't beat Trump in the GOP primary
@NEDFOLEY wrote: JAN 2, 2024
Disqualifying Trump from being president again would “deny [Americans] their democratic choice” of who they want to elect, argues the Wall Street Journal (among many voices). In fact, disqualifying Trump could do just the opposite.
How so?
Elections are a two-stage process. First, the primary. Then, the general election in November.
The primary can prevent the candidate who the voters in November most want to elect from even being on the November ballot.
According to the polls, American voters overall would prefer to elect Nikki Haley instead of Joe Biden—and they would prefer to elect Haley more than Trump.
Not only would Haley beat Biden by a bigger margin than Trump would, but it’s obvious that a majority of all Americans—Democrats and independents, as well as Republicans—would choose Haley over Trump if the choice was just between the two of them. (This is true even after Haley’s blunder in responding to the question of what caused the Civil War.)
But Haley likely won’t be on the November ballot if she must run against Trump in the Republican primary (or, to be precise, the series of primaries that determine who is the Republican nominee at the party’s convention). Trump most probably will beat Haley for the Republican nomination.
That doesn’t mean, however, that a majority of all American voters would prefer Trump rather than Haley to be president. Rather, it just means Republicans would prefer Trump over Haley. That’s not at all the same thing.
Couldn’t Haley just run in the November election as an independent even if she loses the Republican nomination and therefore prove that she’s more popular among all American voters than either Trump or Biden?
Well, that’s actually quite complicated. First, states have “sore loser” laws that purport to prevent candidates defeated in a primary from running in the general election. These arguably could bar Haley from being on the November ballot if Trump defeats her for the Republican nomination. (It’s debatable on a state-by-state basis whether these “sore loser” laws apply to presidential elections.)
Second, even if these “sore loser” laws were not an obstacle and Haley could be on the November ballot along with both Biden and Trump, the existing electoral system is capable only of identifying which of two candidates is the more popular. If there are three or more candidates, it can’t always determine which one a majority of voters would most prefer to elect.
Suppose that in a three-way race with Biden, Trump, and Haley, the votes were split this way: Biden 40%, Trump 40%, Haley 20%. One might think that Haley was the least popular of the three. But in fact, that would be wrong—or at least dependent upon what one means by popular.
Even with this three-way split, a majority of voters could prefer Haley to either Biden or Trump when compared to each one-on-one. Without Trump in the race, the 40% of voters who like Trump the best would prefer Haley over Biden. And if it were just Trump versus Haley, the 40% of voters who like Biden best would prefer Haley over Trump.
Thus, of these three candidates, Haley is the one that a majority of voters would prefer to win compared head-to-head to either of the other two, but a three-way race using America’s existing electoral system would hide this truth.
Given this reality, disqualifying Trump actually would enable a majority of Americans to elect the one they most prefer to win among the three candidates. Eliminating him from the Republican primary would enable Haley to win the Republican nomination, and then she would face Biden directly in the general election and potentially beat him there. (Indeed, No Labels wouldn’t run a potential third-party spoiler candidacy if Haley rather than Trump is the Republican nominee, at least according to their professed plans.)
This point isn’t sufficient reason to disqualify Trump. If he’s eligible to run, he should be permitted to run—just like any candidate, including Haley and Biden. Even if the existing electoral system is ill-equipped to handle more than two candidates, it’s the system we have until we change it. It’s important to play the game according to the rules.
But the point is reason enough to reject the spurious argument that disqualifying Trump would prevent Americans from electing the candidate they most want to be president.
Who wins a presidential election is determined not only by the preferences of the voters. It is determined by the specific legal rules that structure the way the preferences are considered and accumulated in the overall electoral process.
This is most obvious in the case of the Electoral College system. As we all know, the winner of the national popular vote may not win a majority of Electoral College votes because of the way the Electoral College sums the popular vote on a state-by-state basis.
But the ways legal rules determine the outcome of a presidential election involve much more than just the quirks of the Electoral College. Even if we replaced the Electoral College with a national popular vote, there would still be the questions of what role partisan primaries should play in the overall process, how many candidates would qualify for the general election ballot, and what method would determine the winner of a multi-candidate race. We can see the effect of these legal rules as we consider the current presidential race.
The unavoidable truth is that election outcomes are path-dependent, meaning that which candidate wins is a product of the particular path by which the electoral process unfolds, and is not necessarily based on the preferences of voters independent of the method used to determine the winner.
The Founders of the Republic understood this truth, which is why they wrote into the Constitution a complicated process for electing presidents. They imposed a number of constraints in an effort to guide the choice in particular ways that they thought would maximize the chance that presidents would act in the overall national interest. Their decisions—like prohibiting naturalized citizens from becoming president—may not all have proved to be the wisest.
Over time, we’ve tinkered with their system, such as the Twenty-Second Amendment’s prohibition on serving more than two terms, adopted after FDR was elected four times. This seems today the most consequential constitutional constraint preventing Americans from electing the president they most prefer. If Barack Obama were eligible to run again, it is entirely plausible that a majority of Americans would prefer him to any of the other alternatives—Biden, Trump, Haley, or anyone else.
Obviously, the provision of the Constitution that disqualifies individuals who have “engaged” in an “insurrection” is much less straightforward than the Twenty-Second Amendment’s two-term limit. It’s reasonably debatable whether Trump falls within the scope of the insurrection disqualification.
But the disqualification provision is part of the Constitution, just like the Twenty-Second Amendment, and given the supremacy of the Constitution over all other forms of law in our Republic, it deserves to be enforced just like any other constitutional provision.
There are sound arguments for saying that the provision does not apply to Trump. For example, was his conduct in connection in connection with the January 6 attack on the Capitol sufficient to consider him as “engaging” in the attack?
But it is not a sound argument to say that applying this provision to Trump would deprive Americans of their choice of who they want to elect president. On the contrary, enforcing this provision against Trump would be only one of the many ways that the Constitution and laws of the United States structure the electoral process that ends up with a winning candidate.
Furthermore, eliminating Trump from the competition—if he is indeed ineligible to serve—might have the fortuitous consequence of paving the way to permit American voters in November to elect the candidate they actually would most prefer to win among those who are currently running.