Reforming the California recall-replacement process

What a relief. It turned out like the fundamentals of this state said it should all along. But the risk was high. Maybe those polls that showed the recall ahead or close were just rogues. But a process that lets a motivated minority potentially replace an effective but unexciting incumbent with someone elected by a small percentage of the vote is deeply undemocratic. 

It needs to be reformed before an extremist minority puts us through such an attempted power grab again, and maybe pulls it off. So this planting is all about brainstorming for some possible improvements to the process.

As I have noted before, I oppose recalls in principle, at least against the elected chief executive. I explained why in the first in my series on this recall. But for this discussion, I will assume we are stuck with a recall provision, and only focus on how it could be improved. I also am limiting myself to recalls of elected governors (or by extension, presidents), and not to all the other offices that are, or might be, subject to recall.

Minimal changes

The California process of initiating a recall is probably the most favorable to an incumbent’s opponents. Without undermining the principle of allowing the people to recall a governor, there are numerous ways the hurdle could be made higher. FiveThirtyEight has already done a helpful rundown of how California’s provisions compare to those of other US states.

Possible reforms, drawn from experiences of other states, include raising the petition signature requirement (currently just 12% of the number of voters who participated in the previous gubernatorial election) and shortening the time during which petitions can circulate (currently 160 days).

While reforms of this sort are probably a good idea, they are very minimal. There are more fundamental problems with the process, once qualified. These problems do not go away unless the qualification becomes so onerous that effectively a recall election is never triggered. And while some tightening of the criteria may now be likely, it is unlikely the conditions will be greatly restricted.

Somewhat more significant changes for recall

Somewhat more significant options including requiring a claim of malfeasance, rather than we just do not like you, as a basis for petitioning for a recall, or requiring a supermajority to vote in favor of the recall. I do not think the first of these ideas is easily enforceable. (What are the criteria, and who decides if they have been met and so an election is triggered?)

The supermajority idea is attractive. Obviously, a supermajority privileges the status quo, and that is why I normally do not approve of such rules other than perhaps for constitutional changes. Yet in a system based on fixed terms, privileging the status quo is not such a bad idea–the officeholder serves his or her original term unless a strict condition for termination has been met. Nonetheless, I would be concerned about the continued legitimacy and effectiveness of a governor whom a majority of voters–but less than three fifths or two thirds or whatever–had voted to oust.

One could also set a rule that says the recall has not succeeded unless it obtains a majority that is also a greater number of voters than originally voted for the governor in the last election. This is de-facto a supermajority requirement, but it sets the threshold according to the existing electoral base of the incumbent instead of at a fixed level. I retains the same problems I noted with a specific supermajority threshold, but I do rather like the idea nonetheless. See Frozen Garlic for a good statement of the general principle “that recalling an elected official should be significantly harder than electing that same official”; the post has some specific suggestions for implementing that principle. That blog is about elections in Taiwan, where there are recalls and there is a turnout requirement for it to be valid (but it is low, at 25%).

Reforms to the replacement election

Here is where the most important changes could be made. Currently, all state officeholders in California are elected by majority in a “top two” runoff election–unless they are replacing a recalled officeholder. Per Section 5(a) of the California Constitution, “The candidates who are the top two vote-getters at a voter-nominated primary election for a congressional or state elective office shall, regardless of party preference, compete in the ensuing general election.” However, Section 15(c), regarding recalls, says “If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate…”

An obvious solution is to clean up this contradiction. Why should a replacement be eligible to be elected by only a plurality when the officeholder being replaced was elected by a majority? This violates the previously articulated principle by making it easier to replace than to initially elect. Among the strange things about recall-replacement elections in this state is that there is no primary. Of course, readers of this site know that we do not have primaries at all anymore (other than for presidential nominating delegates). What Section 5(a) calls a “primary” is actually not a primary; it is just the first round of a two-round majority election in which party affiliation is not a criterion regarding who advances to the runoff (as quoted previously, “regardless of party preference”). In any case, how we label this process is not the point–important though it is!. The point is that there is a prior qualifying round for general elections, but not for the special election that chooses a replacement. This should be corrected.

Any correction should also resolve the current undemocratic “trainwreck” criterion that a replacement can win fewer votes than the recalled officer had not merely when previously elected but also in the same election. If a majority is required to elect the replacement, this problem is mostly solved. But how to do it? Here are a few possibilities.

(1) Replicate the current general-election process, that is, have a preliminary round (“primary”) and then a top-two runoff, in the event a majority has voted to recall the incumbent.

A key problem with this is it could result in having three special election dates to complete the process: the recall, then if a majority votes for it, a qualifying election, and then if no candidate wins a majority, a runoff. Such a proposal is not likely to fly.

(2) An alternative would be to hold the qualifying round concurrent with the recall question. If the recall passes by majority, but no single replacement candidate wins a majority, then there is a top-two runoff a few weeks later. This would turn a potentially three-round process into a maximum of two, and might still allow it to be over in one round.

If this option were chosen, I would explicitly permit the recalled officer to run in the qualifying round on the same day. If he or she is one of the top two, then the recalled official proceeds to the runoff against a single challenger. If a majority votes to retain the previously recalled governor, so be it. A majority has decided it did not see a single replacement who was better than the incumbent after all. (This sub-option that I suggest is not necessary for the general principle of two rounds to be adopted.)

(3) Yet another possibility is to dispense with the recall question altogether. A successfully qualified recall petition simply triggers a special election in which the incumbent may stand alongside whatever replacement candidates have qualified. The incumbent survives unless a single replacement candidate earns a majority of votes cast. It is all over in one round, and on one question. It would have the advantage of forcing coordination among the opponents, because they need a majority and get only one chance at it.

A potential flaw is the incumbent could survive without even a plurality if coordination fails and there are many candidates, which raises those legitimacy questions again. But the goal is to make it hard to replace, not hard to continue. A twist would be to say there is a runoff if and only if the incumbent finishes second or worse to a challenger who has fallen short of a majority. (Such a runoff probably should include the incumbent even if he or she finished lower than second, but I don’t feel strongly about that particular sub-option.)

By now, some readers will be impatient that I have not mentioned the ranked-choice option. Okay, here you go.

(4) Using ranked-choice voting (RCV) is a simple solution that could be done in one round of voting either with, or without, two questions. The smallest change would be to have two separate questions like we currently do, but the replacement is by ranked-choice voting (alternative vote). A better–I think–option would be the single question: rank as many of the following candidates, including the incumbent, as you wish.

I do not favor these RCV options because we have seen we can have dozens of candidates enter. Asking voters to rank a huge field, where at least the major out-party may have several candidates, is asking a lot of the voters. Moreover, with many candidates, many voters will not rank them all, and the chances are high that the winner will still have only a plurality. This is a general problem with RCV in an effectively non-partisan context (i.e. when multiple parties have not each pre-selected a single candidate). I do not favor this, although I recognize it as an improvement over the status quo. Almost anything would be.

Abolish the replacement election

We have a Lieutenant Governor. The main point of such an office is to replace the incumbent Governor if the latter is unable to discharge his or her duties. If a recall passes, have the Lt.Gov. take over and there is no need to have a special replacement election. This makes a great deal of sense, and I’d be happy with it. Voters might not be, and so its chance of being enacted as a constitutional reform in California is likely not high.

Think big

As I explained earlier (see first linked post), one of my objections to gubernatorial (or presidential) recall is that it targets one officeholder. If we are talking impeachment for malfeasance, that’s fine. But in reality, a recall is a just another political process–even more than impeachment, which is also political. If the objection of the potential majority in favor of recall is discontent with policy, the problem is clearly not only with one person. So recall them all! Have a recall process that simply initiates an early election for the entire legislature as well as the governor. Sort of like an early dissolution in a parliamentary system. Go back to the people and get new policymakers, or if the voters prefer, reelect them all.

I do not actually favor this. But I mention to make a point–recalls are about attempting to reset the terms of delegation from voters to their agents in government. So it sensibly should not be used to target a single individual (again, unless there is some process specifically targeting only a corrupt individual officeholder).

So there you have it. These are the ideas I have come up. What are yours? What do you think of these? We desperately need to change this process before a minority power grab succeeds in the future, but how?

There is a California National Party candidate in the gubernatorial replacement election

I remember back at the time of the 2003 California gubernatorial recall election, one of my laments was that, with so many candidates on the replacement portion of the ballot, not one of them was a secessionist/sovereigntist. Well, this time, no such lament!

I recently learned that there is a sovereigntist candidate this time. His name is Michael Loebs, who in his day job is a lecturer in political science at San Francisco State University. He is running with the California National Party, which has styled itself on the model of the Scottish National Party. (Because the state restricts what party names can appear on the ballot even though party affiliations are self-declared by candidates, he appears as “no party”.)

I am not posting this to have a conversation about whether California should have an active movement for (peaceful) separation, although I have felt such leanings myself for about as long as I have been politically aware. Nor do I use this space to endorse candidates. I am simply happy that, if we have to have this trainwreck of a recall/replacement election, at least we finally have a sovereigntist candidate in the mix.

Of course, I will vote NO on the recall regardless of my vote on the replacement question. In fact, you can call NO on the recall an endorsement!

California’s recall & replacement rules are a trainwreck waiting to happen, but are they unconstitutional?

As the voting is underway in the California gubernatorial recall election against Gavin Newsom, polls are showing it quite close. While the no-recall side leads, and objectively Newsom should be expected to prevail in such a strong Democratic Party-aligned state, it is far from a sure thing. In my earlier planting on this topic, I said that, “rather than learn the lessons of its irrelevance in this state, the California Republican Party has learned a different lesson. While it may not win state power the normal way, it can harness grievance, the possible low turnout of a special election, and a celebrity to pick off a Democratic governor now and then.”

As the campaign–such as it is–has developed since my writing those words in late April, it is clear that it is indeed all about grievance and hardly about governance. It is also still at risk of being a low turnout affair, which is where the threat to Newsom’s tenure rests. Will enough Democrats mail back their ballots marked NO, when all the enthusiasm is on the side of the terminally aggrieved?

What there is not in this contest is a celebrity on the replacement side of the ballot. Unless Larry Elder counts. He is leading the polls as the replacement candidate. (I had never heard of him till a month or so ago, and anecdotally, I sense that most folks who don’t listen to right-wing talk radio likewise did not know who he was. On the other hand, I certainly knew who Arnold Schwarzenegger was long before he ran for governor. So, no, Larry Elder does not count as a celebrity, at least not in a qualitatively meaningful sense.)

And therein lies the problem from a small-d democratic perspective: the rules of how California runs this type of election have always been a trainwreck waiting to happen, and such a train wreck of democracy just might happen this time. While the recall question on the ballot is a YES/NO option and thus will be decided by a majority of votes cast, the replacement option on the ballot has 46 candidates, and the winner will be the one with a plurality of votes, if the YES wins the first question. Elder leads polling by a wide margin, but with not even 25% of the vote. If we take his current polling level as a share of the decided vote, it is still only around 40%. Moreover, with no Democrat (or rather none with any hint of visibility) running on the replacement side, there are likely to be quite a few voters who vote NO but then do not select a replacement candidate. In other words, if Newsom loses a close contest, his replacement could be elected by significantly fewer votes than Newsom himself earned on the NO side. California now requires a majority for election of all other offices in the state in general elections (under the “top-two” rule), but a replacement special election is still decided by plurality (and with no party primaries).

This outcome–a sub-majority election of a candidate with less voter support than the recalled incumbent, and which can’t be discounted as fantasy–would be a massive miscarriage of democracy, whatever one’s opinion of Newsom (or Elder). But could be it also be unconstitutional? That is the claim made in the New York Times by Erwin Chemerinsky and Aaron S. Edlin. They build their case on US Supreme Court jurisprudence on one person, one vote. Two cases from 1964 (Wesberry v. Sanders and Reynolds v. Sims) concerned state legislative and congressional districts, ruling against malapportionment in these districting plans on the grounds that it denied voters equal influence on outcomes.

The claim of Chemerinsky and Edlin is that this logic can be extended to a gubernatorial recall and replacement, under the rules California uses: “If Mr. Newsom is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection. Their votes have less influence in determining the outcome of the election.”

While I agree with the principle, I am dubious it rises to a constitutional issue, even if we did not have a SCOTUS that was dominated by Republicans.

Please read their argument and tell me if I am wrong to be skeptical of the constitutional claim (independent of the likelihood of the Court actually offering redress if this is the outcome of the election).

Mexico 2021

The following was a comment by Manuel on a post about the 2018 election. It certainly deserves a more prominent planting hole, so I am copying it here. Please note the following is authored by Manuel Alvarez-Rivera of the always valuable Election Resources on the Internet, not by me.

Note Manuel’s very interesting observation that this time the system functioned as pure mixed-member majoritarian (MMM), i.e., with “parallel” allocation of the single-seat district and list components, rather than with any compensatory allocation.

___________

Preliminary results of the June 6, 2021 Chamber of Deputies election in Mexico indicate that no gaming of the 8% disparity cap took place this year, largely because the ruling “Juntos Hacemos Historia” (JHH; Together We Make History) coalition won fewer single-member mandates than in 2018.

With 99.6% of the tally sheets processed, Mexico’s Preliminary Election Results Program (PREP) reports the distribution of Chamber of Deputies single-member seats stands as follows:

PAN – 33
PRI – 11
PRD – 0
PVEM – 1
PT – 0
MC – 7
MORENA – 64
PES – 0
RSP – 0
FXM – 0
PAN-PRI-PRD – 65
PVEM-PT-MORENA – 119

The PAN-PRI-PRD “Va por México” (VPM) opposition coalition ran candidates in 219 of 300 Chamber districts, while JHH (PVEM-PT-MORENA) contested 183. On the basis of the coalition agreements published on the National Electoral Institute (INE) website, the party distribution of single-member seats would be as follows, with party single-member seat and vote shares in parentheses:

PAN – 72 (24.0%; 18.3%)
PRI – 30 (10.0%; 17.8%)
PRD – 7 (2.3%; 3.7%)
PVEM – 30 (10.0%; 5.5%)
PT – 31 (10.3%; 3.3%)
MC – 7 (2.3%; 7.0%)
MORENA – 123 (41.0%; 34.0%)
PES – 0 (0.0%; 2.7%)
RSP – 0 (0.0%; 1.8%)
FXM – 0 (0.0%; 2.5%)
Independents – 0 (0.0%; 0.1%)

The coalition seat and percentage totals, including votes and mandates won by their respective constituent parties running alone, are as follows:

PAN-PRI-PRD – 109 (36.3%; 39.7%)
PVEM-PT-MORENA – 184 (61.3%; 42.7%)

The absence of PVEM-PT-MORENA and PAN-PRI-PRD coalition candidates in many districts made little difference in the overall election outcome. Had both coalitions ran in all 300 districts, the MORENA-led coalition would have had a net loss of just four seats, gained by the PAN-led coalition.

Meanwhile, the official allocation of PR list seats won’t be known until as late as the third week of August, but on the basis of preliminary figures it would be as follows:

PAN – 41
PRI – 40
PRD – 8
PVEM – 12
PT – 7
MC – 16
MORENA – 76
PES – 0
RSP – 0
FXM – 0

Consequently, the overall composition of the Chamber of Deputies would be as follows (seat shares in parentheses):

PAN: 72 + 41 = 113 (22.6%)
PRI: 30 + 40 = 70 (14.0%)
PRD: 7 + 8 = 15 (3.0%)
PVEM: 30 + 12 = 42 (8.4%)
PT: 31 + 7 = 38 (7.6%)
MC: 7 + 16 = 23 (4.6%)
MORENA: 123 + 76 = 199 (39.8%)

Therefore, the coalitions would have the following totals:

PAN-PRI-PRD: 109 + 89 = 198 (39.6%)
PVEM-PT-MORENA: 184 + 95 = 279 (55.8%)

Since no party hit the 8% disparity cap, Mexico’s Chamber of Deputies electoral system operated in a purely parallel manner in this year’s election. Moreover, the JHH coalition parties won between themselves 47.76% of the “effective national vote” cast for parties entitled to take part in the allocation of PR seats. As such, the parties’ joint share of 55.8% of the Chamber seats happened to be just 8.04% above their effective national vote aggregate percentage. Had PR list seats been distributed among coalitions (as opposed to individual parties), the application of the 8% disparity cap would have reduced their overall seat total by only a single mandate.

Finally, the over-representation of the PVEM-PT-MORENA coalition in the Chamber of Deputies – where it retained a reduced but comfortable majority – stems largely from its continued dominance in twelve states in southern Mexico, where it won 85 of 99 single-member seats (85.9%) with 49.1% of the vote, while the PAN-PRI-PRD coalition trailed well behind with 32.9% of the vote and 14 seats (14.1%). In the rest of the country the election was closely fought, and while the VPM coalition parties won the popular vote, 43.5% to 39.2% for the JHH coalition partners, the latter still won slightly more district seats (99) than the former (95). Meanwhile, MC won all its seven district seats in Jalisco state, where it topped the poll with 31.5%, in a close three-way race with the PAN-PRI-PRD and PVEM-PT-MORENA coalitions, which polled 31.3% and 28.6%, respectively.

El Salvador presidential power grab

This past Saturday, El Salvador’s president, Nayib Bukele, used the first session of the new legislative assembly, dominated by his party, to dismiss five members of the Constitutional Court and the Attorney General. There was no pretense of following constitutional procedures. It is a pure power grab and probably qualifies as an autogolpe.

If you read Spanish, this story in El Faro is a good place to start. If not, there is an El Faro English summary. Also at El Faro (and in English) is an excellent piece from February about how we got here–Oscar Pocasangre writes about how the country’s party system was collapsing. He blames this collapse in part on the corruption in both established parties (ARENA and FMLN, representing opposing sides from the former civil war) and also the changes of the electoral system to open-list and now free-list PR.

For years I have followed Salvadoran electoral and party politics closely, including at this blog. I often noted how rigid the party system had become. In recent years, the rigidity had begun to erode, and I remarked on that at times. But it was indeed clear once Bukele was elected that it was on the brink of a complete shakeup, if not breakdown. For the past year or more, I have been worried the breaking down of the party system might take democracy down with it. Has it now? This is an alarming development.

Poor recall

It is now all but certain that there will be a recall election later in 2021 against California Governor Gavin Newsom. I oppose recall elections in principle, but this one is especially silly and likely counterproductive for its own promoters.

Recall elections only exacerbate the worst features of the presidential (including gubernatorial) form of government, in that they increase the already inevitably high personalization of the political process of such a system. As if all of what makes for (in)effective government and policy-making can be put on one individual.

In the particular case of Newsom, it is silly in that the number one issue the state (and all governments) have had to face over the past 15 months is the pandemic, and California actually has fared better than other large US states. Is that entirely due to Newsom? No, see my comment about the risks of personalizing government. But he probably deserves some credit.

Its promoters are, of course, Republicans. The Republican Party is so completely out of step with this state that it needs internal reform to make itself competitive again. One might think this would be the lesson it would learn from having won vote percentages in the low thirties in the last two presidential elections and having elected no statewide official since 2006. Newsom himself was elected with 61.9% of the vote in 2018. In recent cycles, the Republicans have struggled to win even a third of the seats in either house of the state legislature.

However, rather than learn the lessons of its irrelevance in this state, the California Republican Party has learned a different lesson. While it may not win state power the normal way, it can harness grievance, the possible low turnout of a special election, and a celebrity to pick off a Democratic governor now and then. But this isn’t the California of 2003, and neither Caitlyn Jenner nor Randy Quaid, nor any of the others in the “clown car” of candidates looks ready to be the next Governator.

As an institutional device, recalls sit poorly with the separate origin (and, normally, survival) of executive and legislative organizations that defines presidentialism. If you need a mechanism to enable early elections, logically you should have a fresh mandate for the legislature, too. Better yet, use parliamentary government (and if you also use proportional representation, you have the greater likelihood that the resulting coalition governments dissolve midterm when political conditions change, and early elections result). In a presidential/gubernatorial system, they just reinforce the worst aspect of the system–their personalization of the executive, and their potential for “populist” solutions. And I say that as someone who thought Arnold Schwarzenegger was a pretty good governor (although I voted against the recall of then-Governor Gray Davis, I voted for the new governor’s reelection in 2006). Or, rather, he was pretty good only after a rocky first year, which only buttresses my point about personalization and populism. He tried to govern by shear force of personality (and he has an unusual measure of that!) and through popular initiatives, including calling a special election for some of them. When it did not work, he eventually learned how to be a governor. The state can’t afford on-the-job training and exercises in populism as it emerges from the pandemic. This specific recall is an even worse idea than the institution of recall is generally.

It is nearly sure that it will fail, at great expense. And it likely will only push Newsom and the Democratic Party father to the left and into ever-greater embrace of unions and other constituent groups, while making the Republican brand even more toxic in the state. Not that I care too much about the latter. The California Republican Party can go hang itself. And if you’d rather replace that verb with another more pointed one, feel free.

Peru 2021

Peru has its presidential and congressional elections today. For presidency, it is the first round of a two-round majority election. And it is likely that the top two will combine for a very small percentage of the vote in this first round. (See polling summary.) That’s really no way to select a top leader, but that’s what you get when you have a democracy without political parties in any meaningful sense of the term. See Steven Taylor’s post today for more about that.

The combination of weak parties and fragmentation with an electoral system that uses a wide variation in district magnitude and D’Hondt divisors, can also result in wide discrepancies between national votes and congressional seats. For instance, in 2016, it helped produce divided government when the party that won a manufactured majority in congress, concurrent with the first round, lost the runoff. In the just-linked earlier post, I said that “governing may be a challenge” in the period ahead. Oh, did that prove to be a good call! (Details in Steven’s post.)

California 2020

We Californians are known for our ballot propositions. Twelve of them in this election. Too many!

I voted last week. Or at least I think I voted. The ballot went into a box that looked legitimate. I’ve never been fond of absentee/mail voting (except for those who have no other choice). In fact, I have never done it, being committed to the idea of going to an actual polling place. But, this year is… different.

I have some thoughts on a few of them. I don’t usually do “endorsements” in part because I wonder why anyone would actually care how I would vote (unless perhaps if it was an electoral system measure). But I want to mention a few of these that I feel somewhat strongly about.

Yes on 18. Back in the year I turned 18, I was of age to vote by the time the general election came around, but I was not able to vote in the primary. I remember at the time, there was talk of a change to allow those who will be 18 before the general election to vote in the primary even if their 18th birthday was between the elections. That is so very sensible. Finally, we get to vote this change into the state constitution.

I am genuinely puzzled that so many newspapers across the state have advised a no vote on 18. I understand why the GOP is against–it is an anti-democratic party (and an anti-republican one), so one of its core principles is: more voters = bad. But I can’t imagine any good argument against this, especially now that we no longer have primaries (except for presidential-nominating delegates). We have a two-round general election. If you are eligible to choose from among the final two, you should be eligible to vote to winnow the initial field. Simple as that.

I voted no on Prop. 22 (re app-based services). At the outset I sort of leaned yes. But the more I learned, the more strongly I was against. Whatever the merits of the policy proposal, the following is a real deal killer: Amendments by the legislature would take a 7/8 vote. I am against super-majority requirements for detailed policy provisions on principle, but usually such requirements are 3/5 or 2/3. But SEVEN EIGHTHS. Absurd! 

I also generally oppose initiatives that are mostly about one interest group trying to convince voters to do what it has already lost in both the legislature and the courts. (Which suggests the proposal is probably not good on the merits, either.) In this case, it is mostly a carve-out for a few specific companies. It’s not about the drivers, despite the slick advertising prominently featuring people of color and single mothers. It is about some companies that are obviously doing quite well if they are able to afford all this advertising. 

Here are some example of their advertising in the form of mailers we have received. See what I mean by their prominent featuring of individuals who are clearly intended to invoke progressive sympathies?

As I said, the measure is not actually about the drivers. It is about some companies trying to bypass the regular policy-making process. (Yes, an initiative is also part of the legitimate policy-making process, but we voters don’t have to go along!)

Also–going out of order here–I decided to vote yes on 15. The advertising from those against has really been over the top.

“Wrong side of history”? And scare tactics are always a nice touch: “homeowners are next.” So if someone comes back with a later proposition that will hurt homeowners, what can we do? Oh, I know. We can vote no on that (highly hypothetical) measure.

In the case of both 15 and 18, these are things I have been waiting to vote for my entire voting life! Prop. 15 creates a split roll for property taxes (a long overdue fix to Prop. 13 of 1978) and Prop. 18, as discussed above, lets 17 year olds vote in the first-round election if they will be 18 by the time of the November second-round election.

For any voters who have not yet made their decisions, I highly recommend the California Choices website. It has links to details of all the propositions, and scorecards of endorsements from newspapers, political parties, non-profits, and unions.

Republic of Barbados?

Barbados may begin a process of transition to a republic. The representative of Queen Elizabeth II, Governor General Sandra Mason, announced such a plan in her throne speech in September. Of course, that means it is the government’s program to abolish the monarchy.

An article about this in The Economist mentioned that such plans do not always go smoothly. It cites the case of Trinidad and Tobago, already a republic since 1976, where the head of state (a president selected by parliament) got to “pick the winner” in a situation (1997) that saw two parties tied for the plurality of seats. The author concludes that “fears of a similar confrontation [between president and sitting prime minister] may have led some Caribbean leaders to reconsider their support for republicanism.”

However, there is no necessary reason why the roles of head of state and head of government need to be separate. Nor must it be left to discretion by the head of state when there is an unclear result of the election. These states could adopt something like the Botswana and South Africa models: The parliamentary majority elects a single individual to serve in both roles. Call the person the “president” or the “prime minister” as you wish. But as long as he or she, and the cabinet collectively, depend on confidence of the majority, it is still a parliamentary democracy (albeit maybe not a Westminster system).

In the most recent election (2018) the Barbados Labour Party won all 30 seats. It was a huge win in votes, too, with 72.8%. (In only two of the single-seat districts did Labour win less than 60%.) Still, it would seem that perhaps a more pressing matter might be not the head of state but electoral reform to avoid total sweeps like this.

Ecuador’s 2019 Local Elections

On March 24, 2019, Ecuador held sectional elections to elect 23 provincial prefects, 221 mayors, 867 city councilors, 438 rural councilors, 4,089 members of rural parish councils, and seven councilors of the Council of Citizen Participation and Social Control (CPCCS), a social regulatory body. The elections had a little bit of everything: complex electoral rules and a mixture of systems, bickering over how to count votes, and results that reinforce what political scientists know about electoral systems’ impacts on party systems. I was fortunate enough to observe these elections as part of the Organization of American States’ Electoral Observation Mission (EOM). Given that the EOM’s final report was finally presented to the OAS Permanent Council until June 19, 2020, I can now offer some political science-based reflections on the experience. 

I’ll describe the array of electoral rules and then highlight three noteworthy factors:

  1. the difficulty in counting null votes in a plurality-at-large election;
  2. the political party atomization that “pluralitarian” and free list proportional representation produced; and
  3. the persistence of ballot order effects in plurality-at-large elections, even with order randomization.

It should be noted that Ecuadorian legislators finally passed a bill in December 2019 to switch from free list PR to closed and blocked lists for multi-member elections, among other changes.

Electoral Systems

Since 1998, elections in Ecuador have been cognitively demanding due to the complexity of the electoral lists and rules governing voting.  2019 was no exception. Despite being a national process, not all voters cast the same number of votes or even used the same number of ballots: voters in urban areas received six ballots to elect representatives at four levels of government (prefect, mayor, urban councilor, CPCCS representatives), while voters in rural areas received seven ballots for five levels of government (prefect, mayor, rural councilor, rural parish boards, CPCCS representatives). Moreover, the National Electoral Council (Consejo Nacional Electoral, CNE) employed three different electoral systems across these five different offices:

  1. Prefects: First-past-the-post
  2. Mayors: First-past-the-post
  3. Urban and rural canton councils: Free list PR (5 ≤ M ≤ 15)
  4. Rural parish councils: Free list PR (M=5 or 7)
  5. CPCCS (three different ballots): Plurality-at-large, Plurality-at-large, First-past-the-post

The free list, which Tom Mustillo and I have written about and which is sometimes called “panachage” or “open ballot”, is a unique variation of the open list where voters can: 1) cast preference votes for candidates; 2) cast multiple preference votes; and 3) distribute preferences across multiple lists. Alternatively, voters can cast a single list vote. To determine seat distribution, votes are pooled at the party list level (an important detail that distinguishes the free list from plurality-at-large). For national legislative elections, only Switzerland, Luxembourg, Honduras, and El Salvador now use this system, although it is more common at a subnational level in Europe. This system presents a number of complexities for voters (since there are so many candidates from which to choose and so many votes to cast) as well as vote counters (because each voter’s number of votes varies by district magnitude and voters are not required to cast all their votes).

There is a lot of “choice” available to voters.  Here is a 2019 ballot for urban councilors from a district in Quito with M=5 that demonstrates it nicely. Voters in this district are allowed to cast up to five votes within or across the 22 party lists, or five out of 110 total candidates.  It is no surprise that voters often opt for list votes (plancha, in Spanish) or use only a portion of their preference votes.

Figure 1. Ballot for urban councilors from a district in Quito

 

Still, Ecuadorian voters should have been accustomed to the free list: before legislators phased in out in late 2019 in favor of closed lists, voters had been using it for 17 years in both national and local elections.

Being tapped with the civic responsibility of working a polling station is a lot of work for elections like these. Poll workers had to tally votes manually, recording not just the choices on six or seven ballots, but counting all M votes on the free list ballots and finding the three choices on the men’s and women’s CPCCS ballots as well (something I explain in greater depth below). The four-person team at the table I was assigned to “quick count” took more than seven hours to tally all of their 250-300 voters’ votes (see the photo below as they were just beginning).

Figure 2. Poll workers sorting ballots before counting votes

 

1. Counting Null Votes under Plurality-at-Large

Despite the complexities of the free list, the most compelling ballot in this election turned out to be the one used to elect CPCCS representatives.  After a 2018 plebiscite turned this appointed seven-person body into an elected one, electors were supposed to be given seven votes to be distributed however they wanted across the entire ballot (e.g. plurality-at-large/MNTV/block voting). However, in February 2019, the CNE stipulated that to maintain gender parity and minority representation, it would divide the single ballot into three separate ballots:

  • A “men’s ballot”, from which voters could cast three votes (plurality-at-large);
  • A “women’s ballot”, from which voters could cast three votes (plurality-at-large), and;
  • A ballot with indigenous/Afro-descendent/ex-pat candidates, from which voters could cast one vote (SMD plurality).

How to count the votes—or in this case, the non-votes—dominated pre-election discourse.

The CPCCS is an autonomous entity responsible for appointing authorities of the Ombudsman’s Office, the Office of the Comptroller General of the State, and state superintendencies, as well as influencing the designation of certain electoral and judicial authorities.  Many politicians and civil society organizations long decried the CPCCS and argued that it should be eliminated as a political body.

Paragraph 3 of Article 147 of Ecuador’s Code of Democracy states that elections can be nullified, “when the null votes exceed the totality of the candidates’ votes, of the respective lists, in a specific circumscription, for each office”. Predictably, there was a current of public opinion in these elections that exhorted voters to cast a null vote as a way to protest the body and demand a national plebiscite on its existence. However, counting the null votes for an office where the voter can cast up to seven votes between three ballots turned out to be more complicated than it may first appear.

Specifically, there is no way to satisfy the “one person, one vote” principal stipulated in the Ecuadorian Constitution if electoral authorities count votes instead of ballots. There are two basic scenarios:

  • Scenario 1 (original proposal): A null vote on a plurality-at-large ballot (M=3) is equal to a single vote, meaning that a null voter is only able to cast 3/7 of a null vote (1/7 + 1/7 + 1/7 on each of the three ballots) while a valid voter can cast 7/7 of a vote (3/7 + 3/7 + 1/7)—effectively disenfranchising the null voter.
  • Scenario 2 (counter-proposal): A null vote on a plurality-at-large ballot (M=3) is equal to three null votes. This way, both valid and null voters get to exercise a full vote (3/7 + 3/7 + 1/7 in each case). The problem is, the system does not permit cumulation voting, which means a) that the null voter is effectively casting three cumulation votes while a valid voter cannot do the same thing; and b) that anyone using fewer than M valid votes per list ends up using fewer votes than the null voter (e.g. a single blank on the first ballot would give the voter 2/7 + 3/7 + 1/7 = 6/7 of a vote).

Electoral authorities were divided on the interpretation, but eventually settled on the first counting rule. Regardless, the null counting method would not have mattered, since just over 20% of the ballots registered null votes against 50% of valid votes (more than 20% of the ballot for CPCCS were also left blank). 

2. Personal Voting and Party System Atomization

Low entrance barriers and guaranteed public financing gave rise to the participation of a whopping 278 political parties, movements, and local organizations. However, all three electoral systems also incentivize the personal vote at the expense of the party. The results were predictable, with extreme party system fragmentation and a lack of mandate for most elected officials.

To just take the FPTP elections, 19 different parties and 10 local political movements split up the 23 prefectures (most of them as part of electoral alliances), with the Social Christian Party winning the most with eight (35%).  Eight parties or movements won just a single prefecture.

There was greater atomization at the level of the elections for mayor. There, 42 parties or movements gained political representation in the 221 mayoralties. Sixteen different political parties won ten or more mayoralties, with the most successful party, the Social Christian Party, earning just 43 mayoralties nationwide (19.5% of the national total). The largest party in the preceding twelve years, President Lenín Moreno’s Alianza Pais (“Country Alliance”), managed only 27 mayors nationwide, falling to the fourth position at national level. The excess of municipal and provincial movements led to the formation of various electoral alliances; in fact, multi-party electoral coalitions won 112 of the 221 mayoralties.

These results suggest that without significant changes, the 2021 general elections are likely to be contested by a panoply of parties with weak roots and limited national ambitions, akin to what we see in some other Latin American countries, like Peru.

3. Ballot Order Effects

A third interesting pattern to emerge was a ballot order effect for the CPCCS elections.  Recognizing the advantage that candidates near the top of the ballot hold over those placed toward the bottom, the CNE decided candidate placement on each of the three CPCCS ballots in February 2019 via lottery, on national television and in the presence of a public notary.

The 28-candidate men’s CPCCS ballot looked like this, with the women’s ballot and minorities’ ballot organized a similar way:

Figure 3. The CPCCS ballot for men

 

Despite the lottery, which quite literally randomized candidate placement, there is evidence that candidates towards the top of list enjoyed a distinct advantage over those toward the bottom. The figure below is a scatterplot of CPCCS ballot placement and votes. Red circles represent women candidates (11 nominations), squares are the men candidates (28 nominations), and the diamonds the minority candidates (4 nominations); for each list, I also included the best fit line to show the relationship between ballot position and votes received. In all three cases, there is a clear negative relationship.

Figure 4. Scatterplot of CPCCS ballot placement and votes

 

This relationship is statistically significant for two of the three lists (men and women; there were only four candidates on the third list). To test the relationship suggested in the figure, I ran a linear regression of the effect of candidate on electoral performance. Employing list fixed effects, the results are consistent with the scatterplot. For each change in position, the mean CPCCS candidate lost around 18,126 votes (p<0.05), or a total of 507,528 votes (18,126) over the range of the 28 positions on the men’s list.  Despite placement randomization, then, this vote is just one more example of the pervasiveness of ballot placement effects; given financial and technical constraints (e.g. inability to randomize candidate placement for each paper ballot), it’s hard to imagine how the CNE could have avoided this problem.

Sectional elections in a small country like Ecuador are not often on the radar of international analysts.  However, the multitude of electoral systems, debate over null vote counting, and ballot order effectd make it as compelling a case study as many national elections in larger countries that grab international headlines.

The strategic voters’ nightmare that is US Democrats’ “proportional” system

With a “front runner” who so far is not mustering more than a quarter of the vote in polling aggregates (e.g., both Fivethirtyeight and Economist), and four other candidates in the 10%–20% range (here with some variation between different aggregators), it is a good thing the Democratic Party uses proportional representation to choose its nominating-convention delegates. Right?

Well, not this “proportional” system. I will now leave aside those zany rules of the Iowa caucus or the marginally more rational rules of the Nevada caucus, and focus on the closest thing we will get to a national primary: “Super Tuesday”. Specifically, I will focus on California for the the obvious reason that it is the biggest. And happens to be where I live and vote. Other states have broadly similar systems, but for smaller numbers of delegates.

This is one awful example of “proportional representation” (PR). Why? First, because it is not really PR due to the high threshold. Second, because it is ridiculously complex. Third (and flowing from the first two), because it is nearly impossible to know how one should make effective use of one’s vote.

My premise is to assume a voter wants to vote against Sanders. (Any resemblance to any particular actual voter may be coincidental. Or not.) With so many candidates still in the mix, one could at least feel good that it in a big state with a lot of delegates, the proportional allocation will mean your vote is not wasted. It could help select some delegates for whichever non-Sanders candidate the voter selects.

But that is not the case at all.

First, there is the threshold. It is set at 15%, which is extremely high. It is all the worse when, as noted already, so many trailing candidates are at risk of falling below 15%. It is not out of the question that all of California’s delegates could go to Sanders even if he has just 32% of the vote, as in a recent PPIC poll. That poll has Biden in second with only 14%. A delegate sweep is not the most likely outcome (8% are undecided, and many might be weakly supportive of their current choice and thinking strategically, like our hypothetical voter), but it is possible. One hundred percent of the delegates on a third of the vote certainly would not be a  “proportional” outcome!

Then there is the districting. Obviously, we know from studies of electoral systems for actual proportional representation systems that having many districts, and low-moderate district magnitude (number of seats–here, delegates–per district) reduces proportionality. On the other hand, if a candidate is just below 15% statewide, the districting might help that candidate, to the extent that there is regional variation in support. Failing to clear the statewide threshold does not preclude getting delegates in a district, as long as the candidate is above 15% in any given district, and that the magnitude of that district is large enough for the candidate to get a delegate with whatever his or her vote share is in the district.

The statewide delegates amount to around 35% of all the delegates awarded in California: 144 of the 415 total. In electoral system terms, the allocation is in parallel, not compensatory like many two-tier proportional systems. That is, a candidate who clears 15% gets a “proportional” share of the statewide delegates and adds on to this whatever number of delegates he or she has won in districts.

A statewide district of M=144 seems huge, right? Well, this being the Democratic Party, they have to make it further complicated. There are two statewide districts, in parallel with each other as well as with the many sub-state districts. The magnitudes are still large, at 54 and 90. (The former are the PLEO, or pledged leaders and elected officials.)

The districts for delegate selection are the state’s districts for the US House. They vary in magnitude for delegate purposes according to recent Democratic voting history in the district. California has 53 districts, and they vary in magnitude from 4 to 7. There are only two districts (numbers 12 and 13) that elect 7. The mean magnitude is 5.1. See the California Democratic Party Delegate Selection Plan (pp. 14-15 of the linked PDF) for the number per district.

(The Plan has no description of the specific allocation formula that I could find, but maybe I missed it; see also GreenPapers.)

So what should our totally hypothetical anti-Sanders voter do? Ideally, figure out which of the other (acceptable) candidates is above 15% in his or her district. Better yet, figure out which one might be marginal for a delegate. That would be a strategic vote based on local support and the district’s magnitude. But it is not as if such information is widely available. One can guess off district demographics, or noisy signals like local offices for the campaigns or yard signs, etc.

The PPIC poll has a regional breakdown within California. But the “regions” are blunt categories–Los Angeles, Other Southern California, SF Bay Area, and Other. There is some considerable variation, even with the caveat that we have 53 districts but four regions. Sanders leads in Los Angeles with 36% and the next up is Biden, at 16%. In Other Southern California they are on 41% and 15%, with Buttigieg also on 15% (the latter supposedly has just 9% in LA). SF Bay Area also has Sanders leading with only 31% and the next closest is Warren at 18% and then Bloomberg at 14%. If, like me, you are in “Other” it is really a mess! We have Warren 18%, Biden 17%, Sanders 16%, Buttigieg 14% (also 11% unknown, higher than other regions). Of course, a lot of these are in the margin of error of the threshold, and each other, and further district-level variation within each region is likely.

So maybe the best is just to figure out which ones are likely to be close to, or “securely” above 15% statewide. Forget the district, and focus on those two large magnitudes at the state level, in which small vote shifts for above-threshold candidates actually could change the delegate totals.

The previous numbers are based on only one poll, of course. There is too little polling of this state. The FiveThirtyEight estimate for California is a little different: 27% Sanders, 16% Bloomberg, 14% Biden, 11% Warren, 10% Buttigieg. (The total for all listed candidates gets us to 89%, so 11% undecided.) Given the paucity of polling, these estimates are based not only on polls, but also on national trends adjusted for state demographics. And, as noted earlier, it risks no one but Sanders being over the threshold, even if that is not in the end a likely scenario, in part because allocating or removing undecideds likely puts at least a couple of other candidates over 15%. Plus, as mentioned, there will be some degree of regional variation that can make a sub-15% candidate statewide be well above that level in a district. But also, remember: many districts have a magnitude so low that even 15% locally would not be enough for a district delegate!

Or there’s voting sincerely. What a concept. Since I don’t like any of these candidates, that would mean staying home. But I don’t want to do that!

Some thoughts on Peru’s midterm election

After the Constitutional Tribunal ruled them legal, Peru held extraordinary legislative elections on 26 January. President Vizcarra dissolved Congress on the grounds that Congress had voted no-confidence in his cabinet (although not directly) twice. This was the first use of this provision since Peru’s 1992 constitution was promulgated, and as such it was the first time when legislative and presidential elections were not held concurrently.

However, the election did not merely lack a presidential contest. Almost uniquely, President Vizcarra, despite having been elected as part of former President Pedro Pablo Kuczynski’s party (previously Peruanos por el Kambio, now Contigo), chose not to endorse any party for the elections, merely advising voters to inform themselves. This reluctance was seemingly not due to any concern that Vizcarra’s endorsement would be a weakness for any party: at the time of the election, his approval rating stood at 58%.

Peru’s unicameral Congress is elected using open party-list proportional representation in 26 regions, with a 5% threshold applied at the nationwide level. The average district magnitude of 5 makes this a relatively moderate form of proportional representation, which explains why Keiko Fujimori’s Fuerza Popular was able to win a comfortable majority of 56% of the seats in Congress at the 2016 election despite only winning 36% of the vote.

The results of this election, however, were extraordinarily fragmented. The largest party, Accion Popular, got only 10% of the vote, and nine parties made it above the 5% threshold to enter Congress. More than a quarter of votes went to parties below the threshold, and in four provinces the leading party will receive no representation in Congress.

I will leave it to Peruvian experts, which I most certainly am not, to discuss what this result means for Vizcarra’s ability to pass his agenda. However, the results are interesting for other reasons.

Since the promulgation of the 1992 Constitution, Peru’s party system has remained quite stable (at least in terms of numbers, the identity of the parties has changed quite a lot). It has also remained quite close to the number of parties that the Seat Product Model (Shugart and Taagepera, 2017) would predict.

These elections are thus extremely unusual, and are perhaps indicative of the high importance of presidential elections and presidential endorsements in imposing structure on legislative elections in presidential countries. A fact particularly suggestive of this is the disastrous result for the two leading parties in 2016, both of which were affiliated to presidential candidates. Keiko Fujimori’s Fuerza Popular fell from 36% of the vote and 78 seats to 7% and 15 seats, while Peruvanos por el Kambio/Contigo fell from 16% and 18 seats to 1% and no seats.

Ecuador list-type change

Ecuador will travel a somewhat rare path in electoral reform: Abandoning a highly candidate-centered system in favor of a highly party-centered one.

In recent elections, Ecuador has used a free list system, in which voters could cast up to M votes (where M is the number of seats in the district) for candidates on one or more different party lists. Any vote for a candidate also counted as a vote for the list for purposes of inter-list allocation. Broadly speaking, a form of the “panachage” systems used in Luxembourg and Switzerland, as well as in recent years El Salvador.

A newly passed reform will switch Ecuador’s list type to closed-list PR.

It is unusual for countries to make a move like this. Japan moved from SNTV to MMM in its first-chamber elections, so that is another example of abolishing intra-party choice. But MMM is still quite candidate-centered, given single-seat districts. (In addition, the optional procedure in the Japanese variant for ranking lists based on district-level performance also preserves a candidate-centered feature, even though candidates on the list do not compete directly with one another for votes.) Colombia moved from de-facto SNTV to a list system, with parties having the option to present either an open or closed list. But I doubt anyone has moved from free list to closed list before. Even a move from open to closed lists must be very rare.

At the same time, Ecuador’s inter-list allocation will move from D’Hondt to “Webster” (Ste.-Laguë).

Even if you do not read Spanish, the linked news item is worth a visit, as it shows a simulation of how the party seat totals would have been different at the last election had Webster already been in place.

I have one concern with the change, if the video also at the linked item accurately portrays what the new ballot will look like. Voters might still tend to mark candidate images in different lists, as the ballot depicted is almost identical. That would make it impossible to tell which one list the voter would favor. But maybe this is not what the ballot really will look like. One must hope not.

Thanks to John Polga for the tip.

El Salvador presidency 2019–a president from a different party?

El Salvador holds the first round of its presidential election today. If no candidate obtains more than half the votes, a runoff between the top two will be held on 10 March. El Salvador holds nonconcurrent elections (usually), with the presidency elected for five years and legislative assembly for three. The expected winner of the presidency comes from one of the smaller parties, the optimistically named Grand Alliance for National Unity (GANA). Given that there will not be a new assembly election till 2021, the new president may have some difficulties governing. While no president has had his party in a majority in the assembly since the 1980s (before the settlement of the civil war), all presidents since the mid-1990s have come from either the National Republican Alliance (ARENA) or the Farabundo Marti Front for National Liberation (FMLN). Thus El Salvador may be entering a new political era.

It might be misleading to call the expected winner an “outsider”, as Reuters did. Not only is Nayib Bukele the candidate of one of the existing (smaller) parties, but also he is the mayor of San Salvador, which would be considered the second most powerful and visible elected post in the country. He was originally elected mayor as the FMLN candidate, but was expelled from the party. He joined GANA to bolster his presidential ambitions. So some degree of “outsiderness”, perhaps, but it is not as if he’s not held important office before or is running on his own campaign vehicle apart from the party system. (The Wikipedia article says he tried to register a new party but was barred from doing so.)

So what about GANA, the likely next president’s adopted party? The most recent assembly election was in 2018, and GANA won only 10 of the 84 seats, although its 11.5% of the vote was its highest to date. GANA resulted from a split from the ARENA, which occurred after the FMLN won the presidency for the first time in 2009. It remains an essentially right-wing party, and I wish I knew more about the policymaking process under two FMLN presidencies to know what sorts of policy compromises the formerly radical-guerrilla left and a right-wing splinter made. Whatever their alliance might look like in substantive terms, it was strong enough politically that GANA did not even put up a presidential candidate in 2014.

In the 2018 election, the parties of the ruling alliance (FMLN and GANA) lost seats, as is entirely predictable from a late-term election. Thus President Salvador Sánchez Cerén has spent the past year of his term in quite a lame-duck situation, with his own party having only 21.4% of the seats and the erstwhile ally with another 11.9%. I say “erstwhile” because, while I do no know what, if any, legislative alliances the president has been working with in the last year, it is evident that GANA and the FMLN have split up their alliance: the latter party has its own candidate in today’s presidential election. (There are four candidates, including one for an alliance of ARENA and the Christian Democrats and the really old ruling party, PCN.)

A problem with an electoral cycle like the one El Salvador uses is that it allows some presidents a honeymoon election, while others do not get an assembly election till near or after the middle of their term. As we know, honeymoon elections tend to give a large boost to the party or alliance supporting a just-elected president (see France 2017 for an absolutely classic case study). Bukele will have to figure out how to govern with an assembly in which his own party has only 10 of 84 seats until the next assembly election, in 2021. And that date is 40% into his term, meaning the normal working of electoral cycles will not likely benefit him much.

I have been fascinated by El Salvador’s unusual electoral cycle for a long time, and it just keeps on delivering. However, were they to ask, I’d tell them to amend their constitution and make elections concurrent.

One thing is for sure, the Salvadoran party system, which I have long characterized as rigid, is no more–a fact already foreshadowed by the 2018 assembly result, as I noted at the time.

The gaming of Mexico’s PR disparity cap

One distinctive feature of Mexico’s 500-seat Chamber of Deputies’ mixed-member majoritarian system – under which 300 members are chosen by plurality voting in as many congressional districts, while the remaining 200 seats are filled by party-list proportional representation (initially determined on a nationwide basis) – is a provision which caps party representation at a maximum of eight percentage points above its national proportion of votes cast for parties entitled to participate in the distribution of PR mandates (in addition, no party may have a total number of Chamber seats in excess of 300 mandates). However, in recent years some parties running in electoral coalitions have successfully gamed the system to circumvent the limits imposed by this provision, effectively diluting its intended compensatory effects.

The eight percent disparity cap is implemented by determining the maximum number of Chamber seats each party may obtain; if a party exceeds this amount, its PR seat allocation is reduced so that its total number of plurality and list seats is equal to the capped seat total. For example, in the 1997 legislative election – generally regarded as Mexico’s first truly free and fair vote – the then-ruling Institutional Revolutionary Party (PRI) won 38% of the total vote and 39.98% of the “effective national vote” (“votación nacional efectiva” in Spanish), that is the total number of votes cast for parties entitled to take part in the allocation of PR seats. Therefore, PRI could obtain at most 47.98% (39.98% plus 8%) of the Chamber’s 500 seats, or 239 seats, disregarding fractions. Since PRI had won 165 of 300 plurality mandates in the election, and had been initially assigned 80 PR seats, for a total of 245 seats – six above the capped total – the party’s list mandates were reduced to 74 seats (239 minus 165); the remaining 126 PR mandates were then distributed among the other four qualifying parties.

Prior to 2008, Mexican voters could choose either a party running alone or a coalition, but not a specific party running within a coalition. Therefore, coalitions were treated as parties when it came to allocating Chamber seats and determining the eight percent cap. However, a 2008 electoral reform allowed voters to choose parties running as part of a coalition, and at the same time limited coalitions to plurality elections only. Since then, the distribution of Chamber PR seats has been carried out entirely on an individual party basis, even though coalitions have often continued to determine the outcome of plurality races; most importantly, the allocation of plurality seats among coalition partners has been determined on the basis of officially registered coalition agreements (“convenios de coalición” in Spanish). In due course, larger parties running in coalition with smaller allies discovered they could game the cited provision by assigning plurality seats in the coalition agreement to their junior partners, while these in turn nominated candidates who were actually members of the larger party. In this manner, the larger party artificially reduced its total number of seats, thus making it less likely that it would hit the eight percent cap during the allocation of PR list mandates.

Before 2018, PRI and its ally the Ecologist Green Party of Mexico (PVEM) gamed the system in the manner described, but the scope of their scheme was comparatively limited, not least because PVEM didn’t have a particularly large number of Chamber plurality seats to begin with. Moreover, in 2015 Mexico’s Federal Judiciary Electoral Tribunal (TEPJF) ruled that parties could nominate candidates from a different political party, provided the parties had a coalition agreement. On the other hand, the stratagem pursued in 2018 by the “Juntos Haremos Historia” (JHH; “Together We’ll Make History”) coalition of the National Regeneration Movement (MORENA), the Workers’ Party (PT) and the Social Encounter Party (PES) was anything but limited. For the Chamber of Deputies, the three parties ran together in 292 of Mexico’s 300 congressional districts, but in the coalition agreement 142 nominations were assigned to MORENA, and 75 each to PT and PES.

To be certain, it is not unusual for smaller parties like PT and PES to have a disproportionate share of single-member nominations in mixed-member majoritarian systems which allow party coalitions: in a nutshell, larger parties often bow to smaller parties’ demands, outrageous as they may be, if that is what it takes to avoid the risk of losing elections. That said, giving away half the Chamber’s single-member seat nominations to a couple of very small parties came across as both extreme and highly suspicious, all the more so considering that for the Mexican Senate plurality races, JHH nominated 49 candidates from MORENA, but only eight from PES and five from PT. However, unlike in the Chamber of Deputies, there is no eight percent cap in place for the distribution of Senate PR seats, and therefore MORENA gained nothing from giving away upper house plurality nominations to its much smaller allies.

JHH went on to score a landslide victory in the general election last July, securing an absolute majority for its presidential candidate Andrés Manuel López Obrador (better known by his initials AMLO), as well as a sizable plurality in the legislative election. In the Chamber of Deputies, final results show JHH won 220 of 300 plurality seats (including eight mandates won by MORENA running alone), with the following results for its constituent parties:

Party % (Votes) Seats % (Seats)
MORENA 37.2 106 35.3
PT 3.9 58 19.3
PES 2.4 56 18.7
JHH Total 43.5 220 73.3

The sole beneficiaries of the victorious coalition’s over-representation in the plurality component were PT and PES, as MORENA ended up slightly under-represented. Again, while it is not unusual for smaller parties within larger coalitions in mixed-member majoritarian systems to have a share of seats in excess of their percentage of the vote (even without considering the PR component), this was nonetheless a truly extreme outcome. By comparison, the Senate election had a more typical plurality outcome, as shown below:

Party % (Votes) Seats % (Seats)
MORENA 37.4 42 43.8
PT 3.8 5 5.2
PES 2.3 8 8.3
JHH Total 43.6 55 57.3

(JHH’s smaller majority of upper house plurality seats was due to the fact that unlike in the Chamber of Deputies, Senate plurality mandates are allocated on the basis of two seats for the winning ticket and one for the first runner-up in each one of Mexico’s thirty-two federal entities).

For the distribution of Chamber PR seats, MORENA received 41.34% of the effective vote, so it could have no more than 49.34% of the 500 Chamber seats, which translated to 246 seats. However, after the initial allocation of PR mandates MORENA had a total of 188 seats (106 plurality and 82 list), well below its corresponding maximum seat total. On the other hand, PT, with 4.36% of the effective vote, would have been entitled to nine list seats, but unexpectedly exceeded its 12.36% cap, or 61 seats due to the party’s large number of plurality victories; PES fell below the three percent valid vote minimum required to take part in the distribution of PR seats. Consequently, PT’s list seat total was reduced to three mandates, and the remaining 197 PR seats were distributed among the other six qualifying parties. In all, JHH won 308 of 500 Chamber seats, as detailed below:

Party FPTP PR Total % (Total)
MORENA 106 85 191 38.2
PT 58 3 61 12.2
PES 56 0 56 11.2
JHH Total 220 88 308 61.6

Mexico’s National Electoral Institute’s General Council Agreement INE/CG1181/2018 [PDF] details the official distribution of Chamber of Deputies PR list mandates in Mexico’s 2018 federal election, while Federal Elections in Mexico has nationwide- and federal entity-level results of elections in Mexico since 1997.

Although the eight percent cap deprived PT of just six seats, this left several of its leaders without a seat in the Chamber of Deputies, and the party went to court to have the result overturned. To that end, PT actually admitted some of its successful plurality candidates weren’t really party members after all, and sought a judicial review of JHH’s officially registered coalition agreement. However, the court rejected what it correctly perceived as a transparent attempt by PT to re-structure the previously agreed distribution of Chamber plurality nominations, in order to bypass the eight percent cap and increase its number of list mandates. In essence, TEPJF ruled JHH’s coalition agreement was a done deal which could no longer be altered after the election had been carried out with the agreement in place, and for good measure reaffirmed its earlier 2015 ruling that parties could nominate candidates from a different political party, provided the parties had a coalition agreement.

Just as important, TEPJF ruled that under the prevailing legal and constitutional arrangements, it was not possible to consider JHH’s coalition performance as if it were a single party for the purposes of determining over-representation, as it would run counter to the requirement such determination must be carried out on an individual party basis. Had Chamber seats been allocated among coalitions (and had all three major coalitions been in place in every congressional district, as was the case with the presidential election), JHH’s seat total would have been limited to 269 mandates – a significantly reduced yet nonetheless substantial majority.

TEPJF also confirmed that PT exceeded the eight percent cap by six seats (because 12.36% of 500 seats equals 61.8 seats, it was argued the party went above the cap by 5.2 seats (67 minus 61.8), which should have rounded down to five seats; however, this argument was rejected on the grounds that with 62 seats of 500 – 12.4% of the total – PT would have had a disparity gap of 8.04%, a figure just above the eight percent maximum).  The court ruled as well that JHH’s plurality victories could not be assigned to MORENA on account of the fact that the party contributed the vast majority of votes to that end.

(MORENA outpolled both PT and PES in every congressional district, and even if the party had run alone it would have secured a large majority of plurality seats, while PT and PES would have won none. However, in such hypothetical scenarios – which assume an identical distribution of votes among the parties contesting the 2018 federal election – MORENA’s Chamber of Deputies seat total would have been limited to 246 mandates by the eight percent cap, while PT would have received no more than 13 list mandates and PES would have had no seats, leaving MORENA and PT with a relatively slender joint majority in the Chamber.)

Nevertheless, TEPJF’s rulings on some of these controversies were not unanimous. Judge Felipe de la Mata Pizaña wrote a concurring opinion calling for the current implementation of the eight percent cap provision to be reconsidered for future elections, while Judge Reyes Rodríguez Mondragón issued an extensive dissenting opinion, in which he argued that the actual party affiliation of plurality winners should be taken into account for determining the eight percent cap during the distribution of PR seats. Notably, the dissent cites a number of political science scholarly sources, including both the Spanish-language edition of “Presidents and the Party System” (edited by S. Mainwaring and M.S. Shugart) and “Seats and Votes” by R. Taagepera and M.S. Shugart, even carrying out the calculations to determine the effective number of parties index for Mexico.

(For further information, please refer to TEPJF’s rulings on SUP-JDC-0429-2018; SUP-JDC-0438-2018SUP-JDC-0444-2018SUP-REC-0934-2018; and SUP-REC-0943-2018 [PDF].)

However, beyond the practical difficulties entailed by implementing this approach, it is not clear that it would have resulted in a significantly different distribution of seats. After Mexico’s newly elected legislators were sworn in just over three months ago, a large number of JHH’s 220 plurality deputies ostensibly elected as members of PT or PES joined MORENA’s parliamentary group, as shown below:

Party Elected Group Gain/Loss
MORENA 106 162 +56
PT 58 28 -30
PES 56 30 -26

Had the eight percent cap been calculated on the basis of parliamentary group affiliation figures, the initial distribution of PR list seats, which as previously noted granted nine mandates to PT and 82 to MORENA would have been definitive, as neither party would have reached its eight percent-capped seat total. Moreover – and quite ironically – JHH would have obtained an even larger Chamber majority of 311 seats (of which 244 seats would have gone to MORENA, 37 to PT and 30 to PES).

In conclusion, while PT and PES contributed very little in terms of votes to JHH’s sweeping victory in the 2018 federal election, the gaming of the eight percent disparity cap through the assignment of a disproportionately large number of plurality nominations to these parties allowed the coalition to obtain a much larger majority in the Chamber of Deputies than it could have otherwise attained. Even so, the triumphant coalition parties overplayed their hand, and the stratagem backfired on PT; this in turn led to a public disclosure of the scheme’s existence (already highly suspected, not least because it was largely absent in the Senate election, which has no disparity cap provisions), as part of an unsuccessful effort to have the unexpected adverse outcome reversed in court.

Even though a majority of Mexico’s Federal Judiciary Electoral Tribunal justices have reaffirmed the validity of electoral provisions which allow outcomes like these, it seems an obvious flaw in the design of the system that parties can run in alliances, but the caps on over-representation are calculated at the individual party level, as pointed out by Dr. Matthew Shugart himself on this blog shortly after the 2018 federal election took place. Moreover, the gaming of the eight percent disparity cap in the 2018 federal election effectively altered the nature of the Chamber of Deputies electoral system, causing it to function almost like a parallel system, in which the outcome of plurality races had very little impact in the distribution of party list seats. That may not appear to be cause for excessive concern in the here and now, given that JHH would have in all likelihood secured a majority of Chamber seats even if the coalition hadn’t gamed the eight percent disparity cap, but the issue could have wider ramifications with unpredictable consequences in the years to come.