Imagine going to a restaurant, opening the menu, and discovering that you only had a choice between two items. Steak or chicken. Nothing else. For those of us that like steak or chicken, this menu might be just fine. But for those who may prefer seafood, pasta, ethnic fare, or the like, the choices are far from adequate.

Yet, every two years in November, as we fill out our voting ballots, we confront little more than a two item menu. For President: Democrat or Republican. For Senator: Democrat or Republican. For Governor: Democrat or Republican. For well over a century, these two parties have controlled American politics from local to the national level. In economic terms, the two parties have a duopoly; the “market” for political power is not free or open, but dominated by the two parties.

Not surprisingly, numerous recent polls show that a majority of Americans are unhappy with both parties and the domination of politics by the two parties. Politicians themselves have joined this chorus; most recently, former Republican presidential candidate Jon Huntsman called for the formation of a third party, notably, phrasing his concerns in economic terms: “All I can say is I’m looking at the political marketplace and the duopoly is tired and we’re stuck in a rut.”

Notably, Americans’ concerns with a two-party system are not novel, and were voiced by our founding fathers themselves. In 1789, only a year after our Constitution was adopted, John Adams stated:

There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.

George Washington, in his farewell address on September 19, 1796, stated:

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention, which in different ages & countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders & miseries, which result, gradually incline the minds of men to seek security & repose in the absolute power of an Individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

While our founding fathers distrusted political parties, and feared the rise of a two-party system, they inadvertently contributed to the very political Frankenstein that they dreaded. As the founders of one of the first true democracies in the modern era, our founding fathers did not have the advantage of research on the impact of voting methods on the development of political parties. Thus, the form of voting utilized by our founding fathers was the most intuitive form, called “plurality voting,” in which the candidate with the most votes wins – even if the candidate did not receive a majority of the votes cast (“majority” meaning 50% or more votes, not simply the one with the most votes). The net result is the “spoiler” effect, in which the presence of more than two candidates can result in the election of the “least desirable” (from a normative standpoint) candidate.

This “spoiler” effect most recently impacted a national election in the 2000 presidential election. The fate of the Bush/Gore election rested on the results from Florida, which produced the following final results:

CANDIDATE     VOTES       PERCENT

Bush                2,912,790     48.847%

Gore                2,912,253     48.838%

Nader                97,488         1.635%

Al Gore lost by 537 votes; presumably, had Nader’s supporters chosen among the two major candidates, he would have gained more than the 537 votes necessary to win Florida.

The impact of plurality voting on political representation was studied at length by French sociologist Maurice Duverger, who theorized that a plurality rule election system tends to favor a two-party system. Duverger’s work, published in the 1950s and 1960s, is now known as “Duverger’s Law” or “Duverger’s Principle.” A corollary to this rule is a “double ballot majority system” (requiring a run-off between the top two candidates of an earlier election) or “proportional” representation leads to multipartism.

The spoiler effect of plurality voting may rear its ugly head in this fall’s general election. Maricopa County’s sheriff, Joseph Arpaio, is running for reelection, but is possibly vulnerable due to scandals and suggestions of corruption within the Sheriff’s Office. However, he is opposed not by one, but two, honorable and capable candidates, Phoenix Police Sergeant Paul Penzone, a Democrat, and Scottsdale Police Lieutenant Mike Stauffer, an independent. Should these two candidates receive a majority of votes between them, but fail to obtain exceed Arpaio’s vote total, the Sheriff could be reelected without receiving a majority of votes.

Our founding fathers did not have the benefit of the work of Duverger and other sociologists and political scientists. However, our Constitution does not require plurality voting that leads to the two-party system. Article I, Section 4, of the Constitution, leaves the manner of elections to the States:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. . .

Either Congress, or our State legislature, has the power to end the duopoly of the two parties and create a voting system that maximizes the free market of political ideas and power. Whether they have the will and courage to do so is, of course, an entirely different matter.

Sidebar: Presidential Elections That May Have Been Swayed By The “Spoiler” Effect:

YEAR       WINNER                “SPOILER”            DENIED VICTORY
1800   Thomas Jefferson   Charles C. Pinckney          John Adams
1844   James Polk                   James Birney                  Henry Clay
1848   Zachary Taylor         Martin van Buren            Lewis Cass
1876   Rutherford B. Hayes    Peter Cooper              Samuel J. Tilden
1884   Grover Cleveland          John St. John              James Blaine
1912   Woodrow Wilson      Theodore Roosevelt      William H. Taft
1968   Richard Nixon            George Wallace          Hubert Humphrey
1992   Bill Clinton                    Ross Perot              George H.W. Bush
1996   Bill Clinton                    Ross Perot                      Bob Dole
2000  George W. Bush           Ralph Nader                     Al Gore

(1) The opinions expressed herein are those solely of the author, and not of Robbins & Curtin, PLLC. Robbins & Curtin, PLLC, wants to feature blogs from the individuals in the firm that represent  the beliefs of the individuals within the firm but not of the firm itself.  IMHO or “In My Humble Opinion” blogs are not necessarily the opinions of the firm but represent well thought out opinions that should enter the public discourse.