Edward B. Foley, “The Real Preference of Voters”: Madison’s Idea of a Top Three Election and The Present Necessity of Reform, 2025 Wis. L. Rev. 401 (2025).
The core principle of Madisonian democracy is that the constitutional
separation of powers provides the best hope of safeguarding liberty, the rule
of law, and the republic itself from the risk of tyranny. In The Federalist
Papers, Madison did not focus of the importance of electoral procedure as a
means for preserving the separation of powers. Over the course of his career,
however, Madison came to recognize the significance of electoral procedure
to the structure and operation of republican government. In 1823, Madison
specifically embraced the electoral principles of the French theoretician
Marquis de Condorcet.
Recognizing Madison’s embrace of Condorcet’s principles is important
today to restore the separation of powers that have been failed to protect the
republic from the current authoritarian threat it faces. A Condorcet-based
electoral system would have avoided the election of a demagogue as
President. As important, or even more so, the use of Condorcet-based
elections for the Senate would have enabled the Senate to perform its essential
separation-of-powers functions of, first, disqualifying an impeached President
whose reelection is a danger of despotism and, second, refusing to confirm
irresponsible cabinet nominations.
