THE CONSTITUTION AND VOTING REFORM
In looking at constitutional issues, the United States Supreme Court
clearly takes into account not only the intent of the Constitution but
also how that applies to the empirical reality involved in a given case.
A good example of this in American constitutional history is the
historical decisions the Court made in the cases of Plessy v Ferguson
in 1896 and Brown v Board of Education in 1954 concerning "separate
but equal" facilities based on race. In 1896 the Court ruled that "separate
but equal" met constitutional muster, but in 1954 based on empirical
facts it ruled that "separate but equal" was an oxymoron that violated
the constitutional rights of American Negros not to be discriminated
against based on their race.
In looking at the constitutional issue of the powers of the Congress to
regulate federal elections, one cannot ignore the impact our system of
plurality voting has on the operation of our political system, especially
our two party system. The Constitution itself does not mandate a two
party system. Many believe that our two party system, or duopoly, is
largely due to the operations of the electoral college and limited ballot
access. But removing these two things would under our system of
plurality voting do very little if anything to move our country away from
our two-party political duopoly.
Great Britain, from whom we got our voting system is a case in point.
There is no electoral college in Britain. In addition, ballot access for
running for the British Parliament is quite low. All it takes to run for
a parliamentary seat is ten signatures by eligible voters in a
parliamentary constituency and a 500 pound deposit, all of which
is returned to any candidate getting 5% or more of the vote. Yet
despite the absence of an electoral college and despite easy ballot
access, British elections in the postwar period with the exception of
the 2010 election always returned a majority of parliamentary seats
for one of two major parties. In other words, like the US the UK's
political system is based on a two-party duopoly because of the
voting system used. This is not accidental as Duverger's Law
illustrates.
If we wanted to design the worst possible voting system we could do
three things. First, we could compel voters to say the least possible
amount in voting--just vote for only one candidate. Second, design a
system that rewards voters for not voting for whom they really want to
vote. And third, design it so that over time it operates in such a way
as to diminish the number of realistic choices to the minimum, just
two. This, of course, describes our current system of plurality voting.
Plurality voting leads to vote splitting, the spoiler role and the wasted
vote all of which compel groups and voters to coalesce around and
vote for one of two major parties--the Duverger effect.
This has two important consequences for the issue of how democratic
our election processes are. First, as almost everywhere the system
has existed, the system engenders two-party dominance, the primary
reason why we have had no credible third party presence in over two
hundred years of American history. And second, it all to frequently
leads to poor outcomes in reflecting voters' preferences as nearly
everyone agrees occurred in the 2000 Florida presidential election.
In looking at the performance of alternative voting systems, the most
important question to ask is how well the outcomes of different
systems reflect the preferences of those who voted in an election. In
this vein, I would maintain that Congress has the power in federal
elections to mandate the system used in single winner multi-candidate
elections for members of Congress and the presidency. In the case
of congressional elections the Constitution and Supreme Court
decisions make it quite clear that Congress has the power to regulate
congressional elections and that such legislation would trump any
state's statutory act governing federal elections on its territory.
In Oregon v Mitchell (1970) Justice Black who announced the judgments
of the Supreme Court commented that:
I would hold, as have a long line of decisions in this
Court, that Congress has the ultimate power over
congressional elections. Similarly, it is the prerogative
of Congress to oversee the conduct of presidential and
vice-presidential elections and to set the qualifications
for voters for electors for those offices. It cannot be
seriously contended that Congress has less power over
the conduct of presidential elections than it has over
congressional elections.
In his comments on the case, Justice Black went on to state that:
Acting under its broad authority to create and maintain
a national government, Congress unquestionably has
power under the Constitution to regulate federal elections.
The Framers of our Constitution were vitally concerned
with setting up a national government that could survive.
Essential to the survival and to the growth of our national
government is the power to fill its elective offices and insure
that the officials who fill those offices are as responsible as
possible to the will of the people whom they represent.
In summarizing the Court's decision in the case of Oregon v Mitchell,
Justice Black wrote:
Our judgments today give the Federal Government
the power the Framers conferred on it, that is, the
final control of the election of its own officials.
Unless the Supreme Court were to reject Justice Black's comments, or
dicta, in the case of Oregon v Mitchell in a subsequent case, it surely is
clear that Congress has the power to pass a statutory act governing the
system of voting used in federal elections. And it is also clear on 14th
Amendment grounds that there are compelling reasons for Congress to
do so.
In the case of privileges of citizens of the United States that are not to
be abridged by the states in federal elections, one crucial privilege of
every citizen, with the constitutional exception of the election of senators
and electors between states with disparate numbers of electorate, is the
right of each voter to have his or her voice equally heard in reflecting the
preferences of the voters on the outcome. But that right is clearly abrogated
by the operation of our system of plurality voting in which a voter is only
permitted to give one vote to a single candidate. In the case of a voter
who supports one of the two major parties' candidate that voter faces no
dilemma in casting a vote. But voters whose favorite candidate is neither
a Democrat or Republican face a cruel dilemma of either voting sincerely
or strategically.
If they decide to vote sincerely as voters who prefer either the Democratic
or Republican candidate do, they wind up not having their voice heard in
determining the preferences of the voters on the outcome. The 2000
Florida presidential election is a prime example of that dilemma. Had the
election been limited to the top two candidates on the ballot, Bush and Gore,
it is clear that Gore would have won Florida by tens of thousands of votes.
Alternatively, had the voters in that election been permitted to give one vote
each to the candidate or candidates they approve of, it is also clear that
Gore would have also won by tens of thousands of votes. That is because
many of Nader's voters seeing from polls that Nader was not going to win
would in most cases have also cast a vote for Gore. In either of these
cases, the outcome of the Florida election would have better reflected the
preferences of the voters in Florida in 2000 than the actual outcome.
With the extent to which our two major parties have become polarized
on both ends of the political spectrum, it is increasingly clear that a
plurality of American voters, those in the center, have been increasingly
excluded from fully participating in a meaningful way in our political
processes. The fact that polls during the 2016 presidential campaign
have consistently shown that an overwhelming proportion of voters have
a negative assessment of either major candidate for president, suggests
that these independent centrist voters may now in fact represent an
actual majority.
Given living memory about the 2000 Florida presidential election and
the problem of the wasted vote in our system of plurality voting used
in every state in federal elections, it is quite clear that the voting system
used does not give equal protection of the laws to third parties. In light
of Duverger's Law this would be true even if third parties had the type
of ballot access that the two major parties enjoy in each state. Clearly,
in light of this and the above considerations there are 14 Amendment
issues which Congress can and ought to address.
It is clear that no voting system is perfect. But it is also clear that
some voting systems are better than others. Congress could give
the country a far superior voting system by a simple statutory act
mandating approval voting in federal elections.
Under approval voting in single winner multi-candidate elections, voters
are allowed to give one vote each to that candidate or candidates they
support with the candidate having the most votes winning. This essentially
costless voting reform, which could easily be instituted in a very short
time, would eliminate the wasted vote, the spoiler role and the necessity
of vote splitting all of which would level the voting field for third parties.
In addition, it would give fairer outcomes in multi-candidate elections in
terms of better representing voters' preferences in federal elections.
Also, as part of such a statutory act Congress could mandate more
equitable ballot access for third parties in federal elections in each state.
Given the desire of the American people to elect their president and vice-
president by popular vote and given Article 1 Section 10 of the Constitution,
Congress could also authorize under a system of approval voting the
creation of an interstate compact to allow the allocation of state electors to
those of the candidate with the most popular votes nationwide as long as
that candidate has at least a 50% approval rate nationally.
With its increasing dysfunction, our two party system is dumbing down
the American electorate as well as greatly harming the country. Since
our two party system is largely the result of our system of plurality
voting as Duverger's Law amply illustrates, Congress has the ability to
do something about this problem by mandating a fairer voting system
in federal elections. Of course, that is if it does have the constitutional
authority to do so as Justice Black maintained. It ought to test this for
the sake of the American people.