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Nonsense About Nader

Yale law professor Bruce Ackerman plays an important role: He is an intellectual provocateur, putting forward big ideas that have the power to change the way we think about basic issues of social justice, constitutional interpretation, or democracy, but that have dozens of practical obstacles. His proposal for "Patriot Dollars," vouchers given to every citizen to make political contributions, is one such example -- full of problems, but nonetheless, a great contribution to our thinking about fairness. In an op-ed in the New York Times this week an entirely theoretical Ackerman proposal is unfortunately presented as if it were a serious proposal to deal with the outside possibility that Ralph Nader would again throw the election to George W. Bush.

What Ackerman proposes is that in states where Nader's name appears on the ballot, instead of offering a slate of electors committed to vote for him in the electoral college, he should choose the same names as the Kerry slate of electors. By this mechanism, he claims, a voter could cast a vote for Nader and yet have it count on behalf of Kerry. The merits of this, Ackerman says, would be that "in effect, he would be enabling his supporters to rank their choices: Mr. Nader first, Mr. Kerry second."

If Ackerman's proposal worked, it would create something that looks a little like Instant Runoff Voting, which is the preferred reform of some Nader supporters. Under IRV, voters can choose a first and second choice and, if their first choice is not among the top two, the second vote will be counted.

I oppose Instant Runoff Voting because it is of no value to achieving the goals its proponents claim. It would not create meaningful third parties, but instead encourages purely symbolic candidacies and symbolic votes. The vote for Nader is merely a gesture before voters turn, on the second ballot, to the real choice, that between Kerry and Bush. I believe that such symbolism discourages voters from developing political maturity and recognizing that, in a democracy, they don't always have their own perfect choice. To the extent that Ackerman's proposal creates something similar to IRV -- and it's not quite the same, because it assumes that Nader's votes should go to Kerry, rather than giving the voter the choice -- it is similiarly flawed. Voters need to understand, without any distraction, that if you want John Kerry and not George W. Bush to be president, you vote for John Kerry. Period.

But the real problem with Ackerman's proposal is an embarassing practical and legal flaw. He deals with only one hypothetical objection to his proposal: That electors are now generally pledged to vote in the Electoral College for the candidate on whose ballot they appeared. This is not mandated by the Constitution, was not the practice before 1800, and on a few occasions electors have defected to support a different candidate. But that's only relevant to Nader if he actually wins a state. Yes, it's possible that if Nader won a state, his electors from that state could argue that they have a right to vote for Kerry if they want to. This would have been a good solution for candidates like George Wallace in 1968, who won five Southern states. But Ralph Nader isn't going to win any states, so why are we talking about this?

The problem that Ackerman just glides over is that votes for Nader and votes for Kerry in a single state are not going to be aggregated, even if their slates have the same people on them. A vote for the Kerry slate is a vote for the Kerry slate; a vote for Nader is a vote for Nader. If Bush wins the plurality of votes in a state, even if Nader and Kerry together win a majority, it is the Bush slate that will represent the state in the Electoral College. Here's how the Federal Election Commission's long document on the Electoral College describes the process: "Whichever party slate wins the most popular votes in the State becomes that State's Electors -- so that, in effect, whichever presidential ticket gets the most popular votes in a State wins all the Electors of that State." There is no precedent for adding the votes of several candidates in order to choose a single slate of electors. It might arguably be constitutionally permissible if a state wanted to operate that way (just as Maine and Nebraska choose not to award their electors on a winner-take-all basis), but it would be a true innovation, and nothing that Nader has any choice about.

And in forty states, two political parties are not permitted to put forward the same candidates, so that Kerry's electors could not appear on the ballot of another party or individual candidate even if the candidate was willing. However, in the statesthat do not ban "fusion," a party is allowed to cross-endorse the candidates of another party, which would allow the same slate of electors to appear twice on the ballot. In New York, the only state where fusion is both legal and commonplace, Kerry and Kerry's slate will appear on both the Democratic Party line and the line of the Working Families Party, a party formed with union and community organization support that is considerably more liberal and creative than the Democratic establishment. Likewise, Bush and his slate will appear on the line of the state's long-standing Conservative Party, and votes for the two Kerry and the two Bush slates will be aggregated. Often, as in the case of Senator Clinton's election in 2000, the votes on the Working Families Party line exceed the margin of victory, giving the party considerable and constructive influence over elected officials. Every so often, when a Democrat is objectionable or to provide an alternative to a corrupt process such as the selection of judicial candidates in Brookly, the WFP will run its own candidates or even endorse a Republican, an option which strengthens its influence.

So, in theory, I suppose that a party in a fusion state could put up its own candidate's name as the presidential candidate, and then cross-endorse the actual electors of another party's slate, in the same way that it might put up its own candidate for governor but endorse Democrats for lower offices. It would be bizarre and would surely seem misleading, but would have the effect Ackerman is seeking. It would require an actual party with a standing presence on the ballot, something Nader's never been interested in, and it would require the candidate and party to actually want to not spoil the election, which seems to be the opposite of Nader's intentions.

But the fact is that fusion alone achieves much of what Nader and Ackerman say they want to do, and much more as well. By voting for Kerry on the WFP line, I simultaneously vote against Bush and also send a signal to the Democratic establishment that I prefer a more progressive voice. And, in addition, I help to build a participatory civic institution that I hope will have a long life in this state. That's why fusion, rather than IRV or Ackerman's proposal, is a valuable political reform. However, it's also a reminder that fixing democracy isn't just a matter of changing the rules. In most of the states that allow fusion, it is rarely practiced and its full potential goes unrealized.

Ackerman says that "the choice is Ralph Nader's" if he wishes to run without spoiling the election for Kerry. In fact, the only choice Nader has, if he does not want to help Bush, is to not run. The choice is with voters, who should simply not sign his petitions or vote for him, and with the press, which should stop taking him any more seriously than they would any other self-aggrandizing crackpot.

Posted by Mark Schmitt on May 7, 2004 | Permalink


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We live in a time and place in which all candidacies and all votes are symbolic.

Posted by: Frank Wilhoit | May 8, 2004 5:47:23 PM

Mark wites, "But the fact is that fusion alone achieves much of what Nader and Ackerman say they want to do, and much more as well. By voting for Kerry on the WFP line, I simultaneously vote against Bush and also send a signal to the Democratic establishment that I prefer a more progressive voice. And, in addition, I help to build a participatory civic institution that I hope will have a long life in this state. That's why fusion, rather than IRV or Ackerman's proposal, is a valuable political reform"

One of us msut be missing something here. How does IRV not accomplish essentially the same thing, but more flexibly? Why would a vote for Nader first, Kerry second, not send essentially the same message, and more clearly (how progressive is a party that runs Kerry for president, after all?)?

Posted by: Jonathan Lundell | May 8, 2004 6:18:57 PM

What are the states that allow fusion besides NY?

Posted by: aenglish | May 8, 2004 8:09:32 PM

What are the states that allow fusion besides NY?

Posted by: aenglish | May 8, 2004 8:13:07 PM

jonathan, because if Kerry gets 45% in a state, and Nader gets 3% (totalling 48%) and if in that state Bush gets 46%, Bush wins the state, despite losing to the aggregate Kerry-Nader vote. Mark made this clear in his post.

Mark is right about the symbolic nature of IRV.

Posted by: Buford P. Stinkleberry | May 9, 2004 12:38:23 AM

george wallace in 1968, strom thurmond in 1948

Posted by: chris | May 9, 2004 12:46:47 AM

I do not plan to vote for Ralph Nader, but I do not understand the argument that he should not run because it will help Bush. Is that not an insult to voters' intelligence? After all, anyone voting for Nader knows precisely what he or she is doing (considering the 2000 debacle), and I do not know a single person who plans to vote for Nader who would have voted for Kerry otherwise. Do we really want to achieve our desired results by limiting voters' choices?

Posted by: Peter Horace | May 9, 2004 4:29:21 AM

Forgive me for quoting a movie-
"A person is smart-People are dumb." Men In Black.

Mob mentality tends to counter even the most intelligent of people. Scary, but true. However, voting is really not a group activity. In the end it's one person in that booth making a decision.

Now, polling, that's a group activity where the above quote really has meaning. But I stray from my point.

I think one of the unintended consequences of Instant Runoff Voting would be that more people would actually vote for Nadar because of a perceived comfort that they actually have two votes. Let's face it, a lot of people will not vote for Nadar simply because they think he can't win. Perception is pretty much what controls our elections. With Instant Runoff Voting, that perception is tampered, if not totally changed.

Also, what's not to say people would vote symbolically on their second vote? I'd be one that would vote Kerry first and Nadar second.

I think your argument against IRV is based on the current political environment/conventional wisdom. Conventional wisdom is always limited by the prevailing logic.

One other thing-since when is creating more options a bad thing? That's what IRV does, it creates more options.

Finally, and I'm going out on a limb, I think you're projecting your way of thinking into the American electorate. Actually, if I didn't know any better, I'd say you were being judgmental about some of the American electorate. Naughty, naughty.

Posted by: Rook | May 9, 2004 8:42:37 AM

Buford, your example (Bush 46, Kerry 45, Nader 3) is exactly the situation where IRV (or fusion) elects Kerry. I'm not arguing for Ackerman's idea. Aside from the legal problems, Ackerman is simply asking Nader to campaign for Kerry.

My argument is over the contention that fusion somehow solves a problem that IRV does not.

I'm familiar with the argument against IRV (that, for example, if the Greens eventually overtook the Dems, it would result in a victory for the Republicans). That's a simplistic analysis, though, and asumes that the a three-way contest occurs over time in a vacuum.

But if the Greens (say) are successful in peeling votes from Dems via IRV, so will Libertarians from Republicans, and so on.

In the long run, IRV it a threat to the monopoly power of the two major parties, which is reason enough for them to oppose it.

And in the long run, IRV will lead to centrist winners. That's not everybody's idea of an ideal result, but is probably not inappropriate for a single-winner election.

Posted by: Jonathan Lundell | May 9, 2004 2:38:09 PM

A crackpot, of course, who has contributed far more to the social well-being of the country than Kerry, or Bush.

Posted by: david | May 9, 2004 10:15:47 PM

I'm with Rook. And I am dismayed to have Ralph Nader labeled a self-engrandizing crackpot here. Such remarks contribute to making words meaningless.

Posted by: cs | May 10, 2004 12:21:39 AM

I understand the arguments for and against IRV, and Rook is correct, my view of it does have to do with its application in the modern American context. I do not think it would threaten the two-party duopoly in the least, but instead would de-fang third parties, especially those like Nader (tho he's not a party) whose votes would all but automatically go to one of the other parties. Why would anyone pay any attention to his views, or those of another candidate who expresses views not represented in the Kerry-Bush choice?

My point that Nader should not run is exclusively in response to Ackerman's claim that Nader has the choice, if he wants to see Kerry elected, to run and yet have his votes "count" for Kerry. Since he does not actually have Ackerman's choice, then the only way that he can exercise choice in a way that ensures Kerry wins is to not run. If ensuring Bush's defeat is not an important goal for him -- and it does not seem to be -- then, sure, he can do what he wants and voters can and will make intelligent choices.

I hope that is sufficient to respond to Rook's comment -- "naughty, naughty" -- that I was being judgmental of the American people, or projecting my own views on to people. If not, I'd appreciate a little more explanation of what that meant.

Needless to say, Nader has not been a self-aggrandizing crackpot for most of his career, and I don't usually use such language, but I think that's the only appropriate term for him today.

Posted by: Mark Schmitt | May 10, 2004 12:47:12 AM

The Working Families Party holds some positions to the left of the Democratic Party, but it ought to be noted that, in an effort to appeal to blue-collar workers, its candidates often take positions well to the right of the Democrats. In Westchester County, home to many socially liberal Democrats & independents, WFP Candidates have cut into the Democratic vote by running against gay rights, affirmative action, gun control, immigrants' rights and public libraries (!).

Posted by: Brooklynite | May 10, 2004 2:09:36 PM

One of the beauties of IRV, to me, is people can clearly record their political mind with the 1st round vote.

Neither of the major parties, separately or compromised, represents my political positions(remotely). Many times I vote with 50% that don't waste the gas to participate in elections. I would be first in line every election if IRV was our voting method.

Leaving aside the inevitable joke votes, 1st round votes are likely to be the 1st accurate representation of american political beliefs. And I would be very interested to see what people really think in this country.

Posted by: | May 10, 2004 7:26:16 PM

While taking note that "aggrandizing" is clearly not in my insta-spell vocabulary, I still question its usefulness as a Nader label (a self-aggrandizing political candidate? now there's a shock!) Happily, I see you dropped "crackpot" in your responding comment. Thank you for that. While my personal preference is for proportional representation, I'm inclined to agree with the commenter above that IRV could bring more voters to the polls. As far as your question about the meaning of Rook's "naughty,naughty" remark, I can only speak for what his comment meant to me. I understood it as a response to yours that IRV fosters voting as a "gesture" and that "such symbolism discourages voters from developing political maturity and recognizing that, in a democracy, they don't always have their own perfect choice."

Posted by: cs | May 11, 2004 1:37:26 PM