Harvard Social Impact Review: How Consensus Choice Voting Could Strengthen U.S. Democracy
Written by Edward B. Foley
This article first appeared in the Harvard Social Impact Review.
America’s constitutional democracy is in peril because American elections are generally not conducted according to the principle of majority rule. Instead, in most jurisdictions, partisan primary elections eliminate candidates with the broadest appeal before the general election. As a result, the candidate who wins is often not the one whom a majority of voters would have preferred.
Consider the current U.S. Senate race in Texas, in which a traditional conservative Republican incumbent, John Cornyn, faces a challenge from the far right in Ken Paxton. As of this writing, it seems possible that Paxton may defeat Cornyn in the May 26 Republican primary runoff, resulting in a general election between Paxton and a self-styled “progressive” Democrat, James Talarico. If Paxton then wins in the November general election, that would not mean that he was the candidate preferred by a majority of Texas voters. If the voters in November were instead able to choose between Paxton and Cornyn, it is almost certain that Cornyn would prevail. Paxton may be more popular with those voters who participate in Republican primaries, but the more moderate Cornyn would be more popular with the Texas electorate overall. And it is also quite possible that Cornyn, whose sufficiently bipartisan appeal has previously yielded decisive general election victories, would prevail in a head-to-head match with the progressive Democratic candidate. Thus, the candidate who would have prevailed in a head-to-head contest against every other candidate would have been sidelined before the general election.
The same point applies to this year’s Louisiana’s Senate race, in which Bill Cassidy is the incumbent Republican. Cassidy angered President Trump by voting to convict him in his second impeachment trial. Consequently, Trump has endorsed Cassidy’s opponent in the Republican primary, Julia Letlow. Because of Trump’s endorsement, Letlow is likely to win the primary and prevail in November. But there is every reason to think that a majority of all Louisiana voters — Republicans, Democrats, and independents — would prefer Cassidy to Letlow if given the chance to express that preference on their general election ballot.
This phenomenon is not new. Research that I have conducted for a book I’m currently writing on electoral reform shows that among so-called “Gingrich Senators” (Republicans who previously served in the House after 1978 and who were elected to the Senate before 2012), as well as the Tea Party and MAGA Republicans who entered the Senate afterwards, twenty-five won their seats by first beating in the primary a candidate whom a majority of general election voters would have preferred. All of these new Senators — such as Ted Cruz, Mike Lee, and Tommy Tuberville — were more extreme than their defeated primary opponents. They went on to win in November because general election voters in their states preferred even an extreme Republican to a Democrat. But a majority of general election voters in these states would likely have preferred the more moderate Republican, who was defeated in the primary, to either the extreme Republican or the Democrat.
This dynamic has also occurred on the Democratic side of the aisle, but much more rarely because the problem of polarization is asymmetrical, with Republicans moving further to the right than Democrats moving to the left. (John Fetterman’s 2022 victory is one clear recent example, as he ran considerably to the left of moderate Connor Lamb in the primary before beating Mehmet Oz in general election.) Consequently, the misalignment between Republican Senators and their voters is far greater than the representation of blue-state voters by Senate Democrats. But whenever this dynamic occurs, either on the right or the left, it results in Senators being more extreme and polarized than the voters who elected them.
The problem is not just who is elected but how they behave. Although seven Republicans voted to convict Trump for his role in the January 6 attack at the Capitol, other Republican Senators refused to do so for fear of being “primaried,” although they easily would have been the most majority-preferred candidate in a general election race.
This kind of distortion is illustrated by the current Texas Senate race. John Cornyn has been changing his positions during the primary contest while seeking President Trump’s endorsement, moving sharply to the right on issues such as eliminating the filibuster to pass the SAVE Act. If Cornyn didn’t have to win the primary but simply could demonstrate in the general election that he is preferred by the majority of Texas voters to either Paxton or Talarico, he could stick to his longstanding positions on important issues and better represent the totality of the Texas electorate.
There is a solution to this problem. It begins with replacing partisan primaries with a primary system in which all candidates — regardless of party affiliation — compete against each other for votes from the entire electorate. The three to five candidates who receive the most votes in the primary would then advance to the general election. Whether it’s three, four, or five can vary depending on how each state wants to balance the tradeoff between more voter choice and more electoral complexity. The general election would then be conducted according to the principle of majority rule as explained by the Marquis de Condorcet, an eighteenth-century mathematician. Condorcet’s key insight was that the way to implement majority rule when there are more than two candidates in an election is to determine the electorate’s preference regarding each pair of candidates. The candidate whom a majority of voters prefer compared to eachopponent head-to-head should win the election. Otherwise, the winner would be a candidate whom the majority disfavor when compared to this alternative, and that is inconsistent with the basic idea that in a democratic election the will of the majority should prevail.
This type of voting method, called “consensus choice” by current advocates, is distinct from the type of ranked choice voting, called “instant runoff voting,” that has been adopted in several jurisdictions, including for statewide elections in Maine and Alaska. The instant runoff tabulation eliminates candidates one-by-one based on the number of top rankings they received, with their votes then reallocated to the other candidates. While instant runoffs are an improvement upon the current system, they will sometimes eliminate the candidate who would win every head-to-head matchup, because more polarizing candidates may receive more top rankings. The Condorcet tabulation method, on the other hand, will always elect the candidate that is preferred to every other candidate.
To illustrate this difference, imagine an election with three candidates: Blue, Purple, and Red. Suppose the electorate is divided into three groups: 40% like Blue best and Red least, 35% like Red best and Blue least, and the remaining 25% like Purple best, with four-fifths of this group preferring Red to Blue and one-fifth preferring Blue to Red. An instant runoff tabulation of these ballots would eliminate Purple, who has the fewest first-choice votes, causing Red to beat Blue 55-45. By contrast, Condorcet tabulation shows that 60% of voters prefer Purple to Blue and 65% prefer Purple to Red, making Purple the winner of the election.
If elections in the United States were structured to comply with Condorcet’s principle, the Senate and the House of Representatives would represent a much broader swath of voters and would be less hyper-partisan. And presidential candidates would have to appeal to more than just their bases. Public policy would better accord with what a majority of American voters want, and American democracy would not be at risk of subversion by a faction whose views do not reflect the will of the majority.
About the author: Edward B. Foley is a leading scholar of election law and the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. He is currently a Visiting Professor at the University of Arizona and was a Crane Fellow in Law and Public Policy at Princeton University in 2024-2025, as well as a Guggenheim Fellow in 2023. He is the author of Ballot Battles: The History of Disputed Elections in the United States, and he is currently writing a book on electoral reform to safeguard American democracy. He is a graduate of Yale College and Columbia University School of Law and a former clerk to U.S. Supreme Court Justice Harry Blackmun.
