Fifty Shades of Republic | Part 3: constitutional amendment rules

This post is part of Fifty Shades of Republic, a series of overviews of US political institutions at the state level

While the Federal Constitution is arguably the world’s oldest national constitution, the states were the ones that began the practice of having ‘written’ constitutions – entrenched laws with a higher status than regular laws, establishing the main features of the system of government. Since I’ve been doing some work on constitution amendment rules (of both national and US state constitutions) for my dissertation, I thought I’d do this topic next (it is also closely related to the topic of a podcast I am currently preparing for Leviathan’s Couch).

The amendment procedure has far-reaching effects. John Burgess, one of the 19^th century pioneers of political science, argued it to be the most important part of a constitution. Constitutional amendment procedures entrench written constitutions, making them harder (or, at least, different) for politicians to change than regular laws. Entrenchment is meant as a means to provide the system of government with stability and to protect basic rights from change by temporary majorities. However, it also often leads to the constitutional entrenchment of various policy measures that do not pertain to the state’s basic institutions, either as a result of opportunistic coalitions seeking to protect legislation from future change or because restrictive provisions in the constitution make the incorporation of contradictory provisions into the constitutional text the easiest way of passing certain policies. Lastly, entrenchment is also an important driver of the power of the judiciary (to whom enforcement of the constitutional hierarchy is delegated).

Most US states have two or more of the following tracks to initiating a constitutional amendment: by the legislature, by a voter initiative, or by constitutional convention. The final stage is almost always ratification by voters in a referendum.

Map 1: legislative and voter initiative tracks to amendment – click for full size

Proposal

Supermajorities – 28 states today require a supermajority for passage in the state legislature. 22 only require regular majorities (simple or absolute) before going to referendum.

Of those only requiring approval by one legislature:

• 10 states (turquoise) require a majority in both houses
• 9 states (blue) require 3/5 in both houses
• 16 states (dark blue) require 2/3 in both houses.

Of those requiring intervening elections:

• 11 states (pink) require a majority in both houses before and after the elections
• 3 states (red) require a 2/3 supermajority at one stage but not both. In Tennessee, the votes after the election must be by 2/3 in both houses; in Vermont, the amendment must be supported by 2/3 before the election, although only in the state Senate. South Carolina (dark red) requires 2/3 in both houses, after which the amendment is put to the voters at the following election. The referendum, however, is not final; it the amendment is approved, the newly-elected legislature must ratify it by majority vote in both houses.
• Delaware (green) requires 2/3 in both houses both before AND after the intervening election, with no referendum requirement.

Intervening elections – 15 states require approval by two legislatures separated by intervening elections (shown on the map in various shades of red). A few of those states allow this requirement to be bypassed by supermajority support in the legislature (shown by a blue asterisk, with the shade of blue corresponding to the required supermajority (in states without intervening election requirement – see below) – only exception being Connecticut, where ¾ is needed to bypass the intervening election requirement). Since main idea behind this institution is often said to have been to allow voters input on constitutional amendments through the election process, many states that had this feature in earlier constitutions removed it when introducing ratification of amendments by referendum, but many have kept it nonetheless.

Initiative – Currently, 17 states allow voters to propose amendments to referendum by petition (indicated by a capital letter I on the map). The exact signature requirements vary widely from state to state. This provision originated in the Progressive era, although a few states introduced it later.

Ratification

Referendum – the referendum requirement became a near-universal feature by the time of the Civil War. In states that did not have it to begin with, it often replaced requirements for intervening elections and/or assembly supermajorities. Referendums today require a majority to ratify in almost all states; the denominator is sometimes simply the number of valid votes on the respective amendment question, but in some states it is the more demanding number of people voting at the election, so that ballots left blank count as a ‘no’. In a few states a supermajority is required for some or all amendments, e.g. in Colorado, 55%, in New Hampshire, 2/3.

Legislative vote – today, Delaware (in green) is the only state not to require voter approval for constitutional amendments – the second round of 2/3 vote in the legislature makes an amendment part of the constitution. As noted above, South Carolina does require voter approval, but an amendment approved by voters is still subject to a final (majority) vote by both houses.

Map 2: constitutional convention track to amendment (or replacement) – click for full size

Legislative convention call – In 6 states, the legislature can directly order the election of a constitutional convention (without needing voter approval) by either majority (light green) or supermajority (green) in both houses.

Legislative convention proposal – In 30 states, a convention call by the legislature must be ratified by voters. In some states the proposal can be made is by a majority (light purple), in others by supermajority (purple) in both houses. In Pennsylvania, there is precedent for this, even though the state constitution does not provide for it.

Ambiguous, referendum required – In 3 states, the constitution requires the summoning of a constitutional conventions to be approved by voters, but is silent on whether the legislature can propose this (pale blue).

Automatic ballot question – In 14 states, a convention proposal must be placed before voters at least once every certain number of years. This is indicated on the map by the specific number of years in each case.

Initiative – In 17 states, voters can initiate the summoning of a convention, either by the constitution’s explicit provision or by virtue of the possibility of proposing one using the procedure for initiating amendments. This is indicated by a capital letter I on the map.

No provision – in 11 states, the constitution does not provide for the calling of a constitutional convention (grey) nor does the state have any established practice. De facto, each of these state legislature could summon a convention by means of the regular amendment procedure.

Constitutions are usually silent on the conditions for conventions’ proposals to be made or ratified, with the exception of requiring a referendum as on ‘regular’ amendments. A few noteworthy exceptional provisions include Illinois’ requirement for 60% voter approval for any kind of convention proposal to be successful, New Hampshire’s requirement for amendments to be proposed by 3/5 vote of the convention, and Minnesota’s requirement for 60% voter approval to ratify any amendment proposed by a convention.

International comparisons

While explicit constitutional recognition of a convention route is somewhat unusual, state constitutions’ regular amendment procedures in state constitutions are very comparable to those of many national constitutions around the world. Here are a few essentially exact parallels:

• Minnesota, Rhode Island – Ireland (majority + referendum)
• Texas, Maine – Japan, Romania (2/3 + referendum)
• Oregon, Arkansas – Switzerland (majority + referendum, initiative option)
• New York, Virginia – Denmark (majority + election + majority + referendum)

However, there are some clear differences, as well. Around the world, amendment procedures that do not require direct voter approval are far more common than among US states. In fact, most democracies today do not require a referendum at all. Meanwhile, many other democracies have a referendum as just one potential method of ratification – an alternative to a legislative supermajority (so not an absolute requirement), or required for some changes but not all.

Meanwhile, it’s internationally rare for referendums to be combined with an intervening election requirement (especially when further combined with supermajorities). I just gave the example of Denmark, but I think it’s the only one, at least for the main amendment procedure; Spain has a procedure for 2/3 legislative vote before and after an election, followed by a referendum, but this procedure is reserved for amendments to the chapters on fundamental rights and the Crown.

Fifty Shades of Republic | Part 2: presidential (gubernatorial) veto powers

This post is part of Fifty Shades of Republic, a series reviewing US political institutions at the state level

One of the most significant aspects of any presidential system is the extent of a president’s legislative power. Despite being known as the main example of a “separation of powers system”, few presidential systems really separate the classic “powers” (judicial, executive, and legislative) – instead, as Neustadt (1960) puts it in Presidential Power and the Modern Presidents, presidentialism typically creates a separation of offices which share powers.

The US constitution features a package veto subject to a two-thirds override. ‘Package’ means that when presented with a bill or resolution passed by Congress, the President can only agree to the proposal in full or veto it in full; by contrast, many presidents around the world, and governors of many US states, possess some version of an ‘amendatory’, ‘partial’, or ‘final offer’ veto. These give presidents more active power to intervene directly in the lawmaking process. In the case of a partial veto where the president can enact parts of an assembly bill directly into law (cutting through compromises agreed to in the legislature) are even arguably akin to decree powers in their scope for active lawmaking by the executive. By comparison, package vetoes are often described as a ‘reactive’ power.

In practice, however, the difference is not necessarily so clear-cut. As Moe & Howell (1999) argue, American presidents are able to engage in a great deal of unilateral policymaking (de facto lawmaking), and their ability to do so stems in large part from their supposedly ‘reactive’ veto power. Any actions (or rule-making) a president undertakes may be opposed by Congress, but any bill or resolution Congress passes to oppose presidential actions can be vetoed by the president. Given the two-thirds threshold, overrides are unlikely to be successful absent broad bipartisan support; the only remaining recourse is the courts^[1]. Executive orders are often portrayed as much more constrained than the decree powers available to other presidents (which are sometimes also formally limited to what existing legislation allows, e.g. Russia), but we should always keep in mind that such a distinction is only as good as its enforcement.

Presidential veto powers in the states

All US governors (who, as directly-elected chief executives which a fixed term, are presidents) currently possess a legislative veto. North Carolina used to be an exception, as its governor had no formal say over legislation until its constitution was amended to provide for one in 1996. All states have a package veto, which is subject to a varying override threshold^[2]:

• 37 states require a two-thirds vote to override (in 27 it’s 2/3 of the total membership, in 10 2/3 of those voting);
• 7 states require three-fifths (of the total membership in 6, of those voting in the remaining state);
• 6 states require an absolute majority vote (always a majority of the total membership).

Where the state legislature is bicameral, override votes require the threshold to be reached in each house separately, with the exception of Alaska, where override votes are held in a joint sitting of both houses.

Many state constitutions offer the legislature some possibility of referring bills to a referendum. In at least one state (Oregon) it is fairly clear this means the legislature can bypass a governor’s veto by submitting a proposal to referendum (the standard override procedure in Iceland and de facto in Weimar Germany). However, most constitutions I have looked through are not clear on this point, as their language on ‘referendum and initiative’, present in about half the states’ constitutions, is usually ambiguous and contradictory (often in the same ways, as many states copied each other’s provisions in the early 20^th century). If anyone knows more, please let me know in the comments!

Map of gubernatorial veto powers (click for full-size image)

Partial and ‘final offer’ veto power

The vast majority of states (44) grant their governors a ‘line-item veto’ – the power to enact some appropriations proposed in a bill while disallowing others (indicated on a map with a dollar sign). In 12 of those the governor can also reduce appropriations without deleting them entirely (indicated with a minus before the dollar sign). In all states, the override threshold is the same for line-item vetoes as for regular package vetoes – with the exception of Illinois, where an absolute majority is sufficient compared with the usual three-fifths.

As far as I am able to tell, no governor has the power to partially enact any other type of bill. Some states’ constitutions also clearly limit the power of deletion to items which appropriate money. In some states where the provisions are more ambiguous they have sometimes been interpreted more broadly. Infamously (and apparently uniquely), Wisconsin governors for many years successfully exploited the ambiguities in their state’s constitution to stretch their veto authority. Governors would edit bills by deleting sentences, words, digits and even letters to enact completely new legislation, with sometimes very different effects from those intended by legislature. This was mainly done to appropriations, but often also in other policy areas, since any bill with at least one appropriation item counted as an “appropriation bill”. Successive Wisconsin Supreme Courts affirmed governors’ interpretations of the rules, and the state’s partial veto was trimmed only gradually through two constitutional amendments in 1990 and 2008, and last year by a Supreme Court ruling seeming to reverse course on its previous judgements on the topic^[3].

6 states add another feature to their gubernatorial veto, commonly called an “amendatory veto” in US sources (hence it is indicated on the map with an A), although it is best understood as the ability for a president to present the legislature with ‘final offer’. It means that the president can return to the bill to the assembly with some proposed amendments – the assembly can then choose to accept the bill as amended (by regular majority/majorities), in which case the amended bill becomes law, or insist on its original version of the bill, which requires whatever the usual majority or supermajority for (package) veto override is. This ‘final offer’ feature is very common across Latin America (e.g. Colombia, Mexico, Peru).

Effectively, any assembly can accept a president’s conditions for approval, even when only the package veto is allowed. The amendatory or ‘final offer’ feature formalises this possibility, but effectively also simplifies the procedure to do so, which might otherwise require restarting consideration of the bill and having to pass all three readings again before being presented to the governor. Besides anything else, therefore, this feature makes the veto procedure more forgiving of any errors in communication between president and assembly.

Veto power regarding resolutions and ‘legislative vetoes’

As I suggested above, a president’s power relative to the assembly depends in large part on the ability to veto not just bills, but also resolutions (which may not count as a “bill” or proposed legislation), specifically ones meant to counter executive action. It may also mean that whenever the legislature delegates authority to the executive branch or the bureaucracy by statute, the majority party’s ability to review executive or administrative decisions will be be limited by the president’s ability to veto such review^[4].

As with the referendum, this was difficult to figure out precisely from constitutional texts. However, this much is clear: many (perhaps most) state constitutions, like the federal constitution, explicitly state that resolutions can be vetoed. Some states (e.g. Louisiana, North Carolina, Montana), on the other hand, clearly place legislative resolutions outside the reach of a gubernatorial veto. Idaho was one state constitution where I was able to find more detail about legislative delegation: the legislature can reject administrative rules, an action not subject to the governor’s veto.

Now, I almost certainly missed more examples and relevant provisions, and moreover I suspect the reality on the ground may be at least as affected by statutes and judicial interpretation as by constitutional provisions. Again, if anyone knows more I would love to hear about it in the comments!

The ‘weak governor belt’

This post is already fairly long, so I will conclude with just one observation: there is a sizable share of the states where the governor is comparatively weak, since they cannot join with a minority in the legislature to block a bill. In most of these states (indicated on the map in yellow), the governor may use the line item veto to undo a compromise she disagrees with on appropriations, but in other areas, the governor’s veto will mostly serve as a test of the legislative coalition which passed the bill. If the coalition was fragile, or if its initial success owed too much to abstentions, the override may fail, but there is no need to appease a minority for an override to succeed. In principle, legislative deadlock cannot result from divided government between president and assembly, only from things internal to the assembly or its parties.

Interestingly, these ‘weak governor states’ happen to all border each other; moreover, most of the states with a 3/5-override veto border these states as well. I haven’t really looked into the history of this geographic pattern, so I don’t know if it was the result of some manner of institutional diffusion – maybe some of our readers know more.

At any rate, what is clear is that there is meaningful variation on this point within the United States (variation which often seems to go unnoticed – multiple articles I’ve seen about a veto override in Kentucky or Arkansas failed to mention that the override takes just a majority in these states). Looking to these states’ experience with executive overreach and other consequences of the usual veto power should provide fruitful for research, and would be easier for reformers to emulate than any foreign example.

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[1] Courts which are appointed by the president. Democratic and Republican presidents may disagree on many things, but they all favour increasing presidential power, which influences their choice of judges.

[2] At least two states have an override threshold of three-quarters in a few selected areas: in Alaska this applies to money bills; in Arizona this applies to some specific cases (e.g. amendments to enacted popular initiatives, emergency bills, raising taxes) where the minimum requirement is already a two-thirds majority.

[3] Although the ruling’s ambiguity (caused by the multiple separate opinions offered) and its potentially partisan motivation (it has been a fairly conservative court, and the incumbent governor is a Democrat) suggest it may not be the last word on the matter.

[4] Though this ultimately depends on what kind of review the constitution allows the legislature to write into statute (or the judiciary’s interpretation of the constitution on this point – which in the case of the US federal government has certainly been very narrow).

Fifty Shades of Republic | Part 1: State legislative terms of office

The US House of Representatives stands out internationally as the having the shortest term of any national legislative chamber, being the only chamber with all seats up for re-election every two years. With that electoral cycle, it also holds elections more often than almost any elected chamber (a few other chambers hold elections every two years, but with staggered elections for a longer overall term).

[Note: For context, you might want to read the brief introductory post to this series.]

The vast majority of states follow the federal level in electing their lower house for a two-year term. Many states, especially in the original 13 and in the Northeast, used to have annual election, but those all switched to two-year terms at various points during the 19^th century. Of the six states lower houses with four-year terms, two (North Dakota and Nebraska’s unicameral) elect half the seats every two years.

By contrast, the federal Senate’s 6-year term is emulated by no state upper house[1]. Most states Senates have a four-year term, which is usually staggered, with half the seats up every two years. Seven states alternate to accommodate the redistricting cycle, with every decade seeing two four-year terms and one two-year term[2]. However, almost a quarter of states (twelve) have biannual terms for both houses.

What does this mean for any reforms? Well, maybe the main thing is simply that there is a lot of work to do! Biannual terms are almost universal, and I suspect they help lower turnout and accountability to voters (though I’m sure interest groups love them) in addition to lowering the government’s effectiveness and time horizons. Another observation is that the staggered elections that exist in about two-thirds of the states could make PR harder to implement in those houses than in other places, at least without disrupting the existing electoral cycle. When staggering puts half the districts up for election, those districts are not necessarily geographically connected, which is a practical necessity if single-seat districts are to be merged to form multi-seat districts which can support PR; if staggered elections mean half the seats in each district are up each time, this means the districts are already larger and harder to make the argument for making even larger. But maybe it’s not a bad idea to combine the move to PR with an abolition of staggering (as well as of bicameralism, as I will no doubt explore in a future post) – my hunch is that most voters probably find it confusing; politicians are probably more likely to feel attached to it, but then again politicians probably have much bigger issues with PR than this one…

What do you think? Do you have any thoughts about legislative term lengths in the states and what it might mean for reform? Or do you have any suggestions for future posts in this series? Please let me know in the comments!

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[1] Although I was able to find a partial exception in Maryland’s Senate, which had five-year terms from 1776 until 1838, and then had 6-year terms with 1/3 elected every two until the term was shortened to 4 years in 1851.

[2] The fact that the other states don’t do this can often effectively mean district boundary changes leave a few voters without direct representation in the upper house for up to two years at a time!

Introducing: 50 Shades of Republic – a review of political institutions in US states

The topic of US state constitutions comes up on this blog from time to time. Naturally, they form an obvious comparison to the federal government. They share many similarities with the federal constitution, but also differ from it, and from each other in various ways. On the other hand, state institutions are also easily dismissed, as their design, in practice, varies relatively little from each other and is often mired in antiquated constitutional models. Moreover, given the extremely nationalised of American politics today, it’s not surprising reformers’ focus is more often than not on the federal level. Perhaps partly for these reasons, state institutions often appear not so well known, both by us comparativists and reform proponents, as well as on the part of journalists[1], whom we occasionally ridicule for their apparent ignorance and parochialism when they report about politics outside the US.

Here are two reasons why it is actually important to be more familiar state-level political institutions, specifically for reform-minded Americans. Firstly, institutional reform at any level (but especially at the highest level) in the US is only likely to gain traction once it is shown to work in the United States. So electoral and other reform at the state level should not be a secondary priority – instead, it will probably be crucial to get PR and other reforms on the agenda at the federal level. Secondly, and related to the first reason, some states have institutions that will make reform easier to pass – and these states should be the ones reform advocates should probably focus on. Moreover, some states already implement some political institutions worth emulating, yet these get scant attention either as proposals for reform in other states or in discussions for federal constitutional reform.

These are some of the reasons motivating my new series of posts on this blog: Fifty Shades of Republic – a review of political institutions in the states of the USA. Every few weeks, I will present a different dimension of state political institutions with a map which shows the distribution of different institutional variations across the states. Feel free to copy and distribute these maps – the more the better.

All seriousness aside, I think this will be a fun exercise, and I hope it will prompt some interesting discussions! Let me know in the comments what you think, and especially if there are any specific institutions you would like me to post on.

My first post in the series should be up momentarily…

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[1] I’m thinking, for example, of an article I saw recently about a Kentucky bill which had been vetoed by the Governor and whose fate now rested with legislators. Its author wrote at length about various political factors affecting the legislature’s consideration of whether to pass the bill, and the various constituencies and factions involved, but nowhere was there any mention of the fact that in Kentucky, overriding the Governor’s veto takes merely an absolute majority of each house, compared with usual supermajority requirement.

Constitutional emergency

It’s kind of hard to know what to say about the events in DC on 6 January. But it hardly seems that someone who keeps a blog that’s partly about democracy in America (and elsewhere) should say nothing. So here’s an attempt.

First of all, the actions of the mob and the encouragement by the president are simply reprehensible, as was the president’s statement on social media some time later, in which he again made the claim that the election was stolen from him. (It should not need to be said, but that allegation is 100% false.)

It was a very bad day for American democracy (if we can even call it that anymore), that’s for sure. In fact, while the president said today that he would commit to a transition, even that statement again reiterated his non-concession of the election results. It is not as if he should be trusted just because he said some of the right words. I’d say we are still in a constitutional emergency as of today. I do not say that lightly, but I believe the label is apt.

Therefore, my view is that there needs to be some response. What should that response be? Is an impeachment and removal worth pursuing at this point? Maybe, although one could have a debate over whether the House majority should go ahead with it absent a pre-commitment (even if private) this time of sufficient Republican Senators on board. I’d question the value of a second impeachment if it also ended in a second non-removal. Just today I learned that it is understood to take only a majority of the Senate to impose disqualification from future office (but probably this is conditional on conviction–see comment thread below). That does not directly deal with the emergency–he stays in power for almost two more weeks, possibly even more enraged and dangerous. But to the extent that his non-concession is tied to keeping the base riled up for a future run for presidency, closing that path might be worthwhile.

Then there is the 25th Amendment. I’ve been skeptical all along of those who have been calling for that. It is designed to make it nearly impossible to remove a president who contests the Vice President’s and cabinet majority’s declaration. In other words, it is meant to preserve the fixed term in almost any situation short of physical incapacity. But here, the short time period works in favor–the declaration is effective immediately, and the House and Senate could just run out the clock on the mandated vote to reject the (temporarily ousted) president’s contest. Obviously, the big problem is a cabinet, by definition, consisting of the president’s own appointees. Nonetheless, the US newspapers are full of calls, even from some Republicans (some named, most not) for this path to be taken or considered. That itself is fairly remarkable. Even the National Association of Manufacturers said as much. I’d still regard it as unlikely. But it isn’t out of the question.

Basically, I just have the strong feeling that something official needs to be done. This was a series of events that I’d been fearing would happen in some form for as long as this administration has been in office, although I was still shocked as the day actually unfolded. It may even have been a (half-assed and yet still serious) coup attempt, although I am less interested in debating whether that term applies or not than I am in an official rebuke to the president for encouraging it in public, and perhaps in other ways as yet unknown in private.

I have not even mentioned yet the willingness of elected legislators to take a pro-forma process of accepting electoral-vote certificates and turning it into a spectacle for claiming the right to overturn citizens’ votes in certain states. Even after the insurrection (which I think is the correct word for the events) had taken place, we still saw three fifths of the Republican House members go on record in favor of rejecting the voter’s choice. That there is public willingness for such actions among Republican voters (as these members clearly believe there is, evidently confirmed by a YouGov poll today) is an ongoing emergency for democracy, regardless of any response to this week’s events.

USA 2020

Was there anything going on in the United States today? Oh, right, an election, I voted so long ago I almost forgot.

Thoughts?

Attorneys General–institutions matter

Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM for another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

Early STV voting equipment

Voting technology is one obstacle to wider use of ranked-choice voting. Although groups like OpaVote have had open-source fixes for years, US jurisdictions tend to rely on commercial vendors. A decade ago, many of them resisited developing the technology. Now, of course, voters can “complete the arrow,” as is done in San Francisco, or bubble in a candidate-by-ranking matrix, as was done in Maine last week.

The challenges get thornier with STV elections. Due to the “multi-winner” nature of a race, there sometimes are very many candidates. That can result in confused voters and burdensome vote counts. Only in 1991 did Cambridge (MA) solve these problems by computerizing its electoral system. That could have happened as early as 1936, when many cities still were holding STV elections.

As it turns out, IBM had found a way to mechanize the voting process. George Hallett of the erstwhile Proportional Representation League writes:

Among the most persuasive arguments against P. R., in spite of their essential triviality, have been the objections that it required several days to get the result in a large election and that it required paper ballots and hand counting, both of which in plurality elections without the safeguards of a central count have acquired an evil reputation. In connection with the possible early use of P. R. in New York City, where these objectives would be stronger than ever psychologically, an effective answer to them has now been devised.

 

IBM’s system used standard, punch-card readers to count STV ballots at a rate of 400 per minute. According to Hallett, “the final result of a P. R. election in New York City can easily be determined by some time in the morning of the day after election.”

Voters would use a series of dials to rank candidates, one through 20. Then, as some will recall, the machine would record a voter’s votes when they pulled the lever to open the curtain. Opening the curtain punched the holes into the punch-card ballot.

Here is the quotation in its context (albeit a bit blurry):

Other features of the system were:

• Precinct-based error correction. A voter could not give the same ranking to more than one candidate. Nor could a voter skip a ranking.
• Freedom of choice. A voter could rank as few candidates as they wanted. They also could rank as many as they wanted. Although the machine was built for 20 rankings, there appears to have been accommodation for write-in and additional candidates. Finally, a voter could go back and change their mind about a ranking.
• Early “cyber-security.” Now we worry about nefarious actors loading malware onto touchscreens. Back in the 1930s, however, the worry was that poll workers might stuff a ballot box or throw out ballots they did not like. IBM’s solution was simple. Poll workers would not have access to individual ballots. Once a voter voted, the ballot fell into a sealed container, only to be opened in the central-count location.

Why the machine did not catch on remains a mystery. IBM appears to have been pitching it to New York City in advance of the November referendum, which put STV into place from 1937 to 1947. Those passing by 41 Park Row could see a demonstration model at the Citizens Union office.

It is a shame that New York (and other cities) did not go with the system. According to Mott (1926), the average invalid-ballot rate in 19 elections to that point was 9.1 percent. My data reveal invalid rates of up to 18 percent (Manhattan and Brooklyn, 1941). Part of this was abstention altogether. Another part was the lack of interest in discerning voter intent, handling skipped rankings with compassion, and so forth. IBM’s machine, however, would have addressed some of those issues, all while educating voters at the same time that they voted.

Presidentialism and diverging intraparty electoral incentives

“We’ve got people running for president all trying to find their base, and then you’ve got people from Trump states that are trying to continue to legislate the way we always have — by negotiation.”

 

Thank you, Sen. Claire McCaskill (D-Missouri), for a wonderful quote about how presidential systems can fracture electoral incentives within a party.

The DNC is not the party leadership (in any meaningful sense)

Quick political science lesson. Political parties in the US are non-hierarchical.* That’s a fancy way of saying neither their candidates for office nor their platforms are determined by a central authority.
In other words, the DNC chair is not worth getting all worked up over. If you want to change the party, get some candidates who can win primaries for state legislative and congressional races. Oh, and make sure that said candidates also could realistically win the general election. That is all.

____
* As explained in Chapter 6 of A Different Democracy.

Voter choice or partisan interest? The case of ranked-choice voting in Maine

Galvanized by the first ever ranked-choice-voting (RCV) win in a U.S. state, reformers just hours ago held a conference call to build their movement. Ranked-choice voting is a set of voting rules more kind to “outsiders” than our ubiquitous plurality system. Given the unusual strength of America’s two-party system, why do outsider-friendly electoral reforms ever win?

My answer is: a replacement institutional template, losing-party self-interest, and ruling-party disunity. In a recently published paper, I show how this logic can explain the spread of “multi-winner ranked-choice voting” (i.e., proportional representation or PR) in the first part of the 20th century. Losing parties and disgruntled ruling-party factions promote voting-system change in a bid for policy-making influence. Voting reform organizations supply the replacement template.

Does my answer also explain the RCV win in Maine? Is that enough to buy my argument? If the answers are “yes,” reformers would concentrate on jurisdictions with sizable out-parties and fractious ruling parties.

Americanist political scientists would also change the way they think about election “reform.” The dominant trend for more than a century has been to see party and reform as exclusive. Fifty years ago, we would have read about conflict between “machine politics” and “good government.” Now we read about “activists” versus “compromisers,” legacies of Progressivism, and reformer “process-obsession.” What if party itself were a critical reform ingredient? As Jessica Trounstine reminds us in her excellent book, Democratic boss Thomas Pendergast was more than happy to turn the model city charter (without PR) to his own “machine” ends in Kansas City.

Let’s see if my template-loser-faction model explains what just happened in Maine.

The template

“Maine has not elected a governor to a first term with majority support since 1966,” said Jill Ward, President of the League of Women Voters of Maine. “Ranked Choice Voting restores majority rule and puts more power in the hands of voters.” – quoted from FairVote.org

Efforts to enact RCV began in 2001.

The losing party

Circumstantial evidence suggests that, from 2001 until the 2014 re-election of Gov. Paul LePage (R), the Democratic Party either:

1) controlled a policy veto point via the governorship, or

2) did not expect “independent” voters’ ballot transfers under single-winner RCV to help elect its candidates.

How is 2014 different for Democratic Party expectations? If the rhetoric of the current governor is any indication, the Maine Republican Party has become more socially conservative. Perhaps it is now so socially conservative (in Democrats’ minds) that the Democratic Party thinks “independent” voters would rank its candidates over Republicans. Maybe Democrats are thinking: “If we had RCV, we wouldn’t be the losing party.”

The disgruntled, ruling-party faction

My hunch is that this is a group of fiscal conservatives, no longer at home in either state party. That doesn’t make them a disgruntled, ruling-party faction, but it might have made them willing to consider Republicans in earlier years. Consider:

• Proponent of record for Question 5: An Act to Establish Ranked-choice Voting. Liberal on some economic issues, but supports consumption taxes and income-tax reduction.
• Two-time independent candidate for governor. Liberal on the environment, ambiguous on economics, but not a conventional Democrat of yore. Endorsed independent candidate Angus King (over the Democrat) to replace outgoing Sen. Olympia Snowe, a famed “moderate” Republican.
• One-time independent candidate for governor. Quits Democratic Party to run. Wanted Maine “to be the Free Enterprise State.”

Predictions and evidence

Last month I predicted that a coalition of regular Democrats and “the independents” would put RCV over the top. Republicans threw me a curve ball by endorsing RCV the very next day, but, as the proprietor of this blog has written, such endorsements can be strategic.

If I was right, Democrats and “the independents” should have voted for RCV, but the Republicans should not have.

Below I give a rough test of these hypotheses. Here are precinct-level results of the vote in favor of RCV by the vote for each major-party presidential candidate. (Vote shares are overall, not of the two-party vote.) This is preliminary. I only have data so far for 87 percent of precincts, the state has not released official results, and I have not looked at the correlation of RCV support with partisanship in other offices. I don’t yet have a way to get at behavior by “the independents.” Finally, I have not yet run an ecological inference analysis, but I plan to remedy all this later.

As you can see, Democrats seemed to like RCV, and Republicans did not, at least as revealed by presidential voting.

The role of uncertainty

Why don’t “the independents” simply join the Democratic Party if they dislike current Republican positions as much as the Democrats? This is what’s really interesting about the adoption and use of RCV. I argue that groups in reformist alliances do not plan to cooperate on all pieces of legislation. Let’s say Maine ends up with an “independent” governor or a sizable contingent of “independents” in its state legislature. I would not be surprised if we see them working with Democrats on some legislation (e.g., “social”), then with Republicans on other bills (e.g., taxes).

Why don’t Democrats foresee this possibility? Perhaps they recognize that single-winner RCV is not the same as PR. Consequently they may reason that “independents” will not become a bargaining force. Rather, “independent” ballots will bolster the position of Democrats in government.

Then why are “independents” going along with a reform that’s good for Democrats? Perhaps they disagree with Democrats on who’s likely to benefit from strategic voting. As Gary Cox reminds us, strategic voting depends in the end on voter expectations, shaped by elite messaging about precisely which party or candidate is “hopeless” under a given electoral system. The perception that RCV has made elections kinder to outsiders is important. If there really are many sincerely “independent” voters, “independent” candidates may get a toehold in government.

And that’s when things get interesting.

First (and last?) USA 2016 post

I’ve had nothing to say here about the US election. Well, I voted today. I am glad it is almost over. It has been depressing to watch this campaign. I offer this space for readers who feel F&V should have such a space. That is all from me (for now).

More on American columnists discovering comparative politics

At Think Progress, Ian Millhiser offers another in the recent series of examples of American columnists noticing comparative politics. This is good!

Millhiser suggests we look to Chile’s current presidential democracy for models of how to prevent government shutdowns. As he notes, correctly, Chile’s president has exclusive power under the country’s constitution to propose legislation in areas relating to finance and budget, along with “urgency” provisions and restrictions on congressional authority to change executive proposals.

In other words, a presidential (separation-of-powers) model does not necessarily have to leave the executive dependent on legislative initiative to pass a budget or other financial matters.

While the recognition of other models is good, I am afraid I have to stop short of advocating the Chilean solution. If I decried the possible “Latin Americanization” of US presidentialism during the previous administration, I hardly can advocate it now.

A Different Democracy

The draft chapters for a co-authored book project in which I am involved are posted on my academic pages for anyone who might be interested.

A DIFFERENT DEMOCRACY?

A Systematic Comparison of the American System with 30 Other Democracies

By Steven L. Taylor, Matthew S. Shugart, Arend Lijphart, and Bernard Grofman

It is often said that the United States has an exceptional democracy. To what degree is this claim empirically true? If it is true, in what ways is US democracy different and do those differences matter? What explanations exist for these differences?

The study examines the choices made by the designers of the US government at the Philadelphia convention of 1787 and the institutional structures that evolved from those choices and compares them to 30 other democracies. The basic topics for comparison are as follows: constitutions, federalism, political parties, elections, interest groups, legislative power, executive power, judicial power, bureaucracies, and public policy.

Each chapter starts with a discussion of the feasible option set available on each type of institutional choice and the choices made by the US founders as a means of introducing the concepts, as well as discussing how specific choices made in the US led to particular outcomes. This is done by looking at the discussions on these topics from the Federalist Papers and the debates from the Philadelphia Convention. This approach allows a means of explaining the concepts in a comparative fashion (e.g., federal v. unitary government, unicameralism v. bicameralism, etc.) before moving into the comparisons of the US system to our other 30 democracies, which make up the second half of each chapter. Each chapter contains an explicit list of specific differences between the US and the other democracies as well as comparative data in tabular and graphical formats. The current draft of our book has 64 tables, 16 figures, and 10 text boxes. All of the figures and tables contain comprehensive comparative data featuring all 31 cases (save in a handful of instances) or specific thematic subsets of the 31 cases (e.g., presidential systems or bicameral legislatures).

The book is now under contract with Yale University Press.

Comments are welcome (but act fast!).

Distortions of the US House: It’s not how the districts are drawn, but that there are (single-seat) districts

In the New York Times, Sam Wang has an essay under the headline, “The Great Gerrymander of 2012“. In it, he outlines the results of a method aimed at estimating the partisan seat allocation of the US House if there were no gerrymandering.

His method proceeds “by randomly picking combinations of districts from around the United States that add up to the same statewide vote total” to simulate an “unbiased” allocation. He concludes:

Democrats would have had to win the popular vote by 7 percentage points to take control of the House the way that districts are now (assuming that votes shifted by a similar percentage across all districts). That’s an 8-point increase over what they would have had to do in 2010, and a margin that happens in only about one-third of Congressional elections.

Then, rather buried within the middle of the piece is this note about 2012:

if we replace the eight partisan gerrymanders with the mock delegations from my simulations, this would lead to a seat count of 215 Democrats, 220 Republicans, give or take a few.

In other words, even without gerrymandering, the House would have experienced a plurality reversal, just a less severe one. The actual seat breakdown is currently 201D, 234R. In other words, by Wang’s calculations, gerrymandering cost the Democrats seats equivalent to about 3.2% of the House. Yes, that is a lot, but it is just short of the 3.9% that is the full difference between the party’s actual 201 and the barest of majorities (218). But, actually, the core problem derives from the electoral system itself. Or, more precisely, an electoral system designed to represent geography having to allocate a balance of power among organizations that transcend geography–national political parties.

Normally, with 435 seats and the 49.2%-48.0% breakdown of votes that we had in 2012, we should expect the largest party to have about 230 seats. ((Based on the seat-vote equation.)) Instead it won 201. That deficit between expectation and reality is equivalent to 6.7% of the House, suggesting that gerrymandering cost the Democrats just over half the seats that a “normally functioning” plurality system would have netted it.

However, the “norm” here refers to two (or more) national parties without too much geographic bias to where those parties’ voters reside. Only if the geographic distribution is relatively unbiased does the plurality system work for its supposed advantage in partisan systems: giving the largest party a clear edge in political power (here, the majority of the House). Add in a little bit of one big party being over-concentated, and you can get situations in which the largest party in votes is under-represented, and sometimes not even the largest party in seats.

As I have noted before, plurality reversals are inherent to the single-seat district, plurality, electoral system, and derive from inefficient geographic vote distributions of the plurality party, among other non-gerrymandering (as well as non-malaportionment) factors. Moreover, they seem to have happened more frequently in the USA than we should expect. While gerrymandering may be part of the reason for bias in US House outcomes, reversals such as occurred in 2012 can happen even with “fair” districting. Wang’s simulations show as much.

The underlying problem is, again, because all the system really does is represent geography: which party’s candidate gets the most votes here, there, and in each district? And herein lies the big transformation in the US electoral and party systems over recent decades, compared to the party system that was in place in the “classic” post-war system: it is no longer as much about local representation as it once was, and is much more about national parties with distinct and polarized positions on issues.

Looking at the relationship between districts and partisanship, John Sides, in the Washington Post’s Wonk Blog, says “Gerrymandering is not what’s wrong with American politics.” Sides turns the focus directly on partisan polarization, showing that almost without regard to district partisanship, members of one party tend to vote alike in recent congresses. The result is that when a district (or, in the Senate, a state) swings from one party to another, the voting of the district’s membership jumps clear past the median voter from one relatively polarized position to the other.

Of course, this is precisely the point Henry Droop made in 1869, and that I am fond of quoting:

As every representative is elected to represent one of these two parties, the nation, as represented in the assembly, appears to consist only of these two parties, each bent on carrying out its own programme. But, in fact, a large proportion of the electors who vote for the candidates of the one party or the other really care much more about the country being honestly and wisely governed than about the particular points at issue between the two parties; and if this moderate non-partisan section of the electors had their separate representatives in the assembly, they would be able to mediate between the opposing parties and prevent the one party from pushing their advantage too far, and the other from prolonging a factious opposition. With majority voting they can only intervene at general elections, and even then cannot punish one party for excessive partisanship, without giving a lease of uncontrolled power to their rivals.

Both the essays by Wang and by Sides, taken together, show ways in which the single-seat district, plurality, electoral system simply does not work for the USA anymore. It is one thing if we really are representing district interests, as the electoral system is designed to do. But the more partisan a political process is, the more the functioning of democracy would be improved by an electoral system that represents how people actually divide in their partisan preferences. The system does not do that. It does even less well the more one of the major parties finds its votes concentrated in some districts (e.g. Democrats in urban areas). Gerrymandering makes the problem worse still, but the problem is deeper: the uneasy combination of a geography-based electoral system and increasingly distinct national party identities.