Improving the quality of American democracy

Ranked-choice voting refers to any of several systems where voters can vote for more than one candidate, expressing a preference among them. These methods avoid arguments about "wasted votes" and avoid the need for runoff elections. Candidates with the fewest first-choice votes get their votes redistributed to the second choices, until somebody gets an absolute majority.

There are some downsides. Voter choice is maximized, but too many options can be paralyzing for those with only a passing casual interest in politics. Many voters do not understand ranked-choice voting, and it's more complicated to audit the results of a disputed election; a recount has to do more than come up with the total number for each candidate, but to insure that everybody's second or third choices were respected. That's why I think it's a better system for elections with small numbers of voters rather than for large elections such as a popular election for US President.

If casual voters don't have a clear idea on how to decide who their first choice is, how are they going to have preferences among many candidates for lesser offices? That's indeed a consideration; one possible solution is to allow political parties and perhaps other interested organizations to define preloading choices; the voter who wished to do so would start by selecting a preloading choice and then modifying it to taste if desired.

For better or worse, Jesse Ventura's 1998 victory in Minnesota might not have happened with ranked-choice voting.

FairVote is campaigning for ranked-choice voting in Federal elections.

How can we avoid egregiously unqualified presidential candidates?

Another change would be to allocate delegate first-choice votes within a state according to popular vote rather than winner-take-all. Both those choices would probably keep the primary campaigns active until closer to the convention if not into the convention. Late primary states like California would then be more interesting and influential.

What about Recall?

16 states allow state legislators to be recalled by the voters. Why not allow voters in those states to recall the Federal legislators too? A Federal Constitutional amendment would be required to allow voters in each state to recall that state's Federal legislators on the same basis as they can recall state legislators.

Could it be done without a constitutional amendment? Perhaps, if there were an agreement to expel any Senator or Representative upon receipt of certification of recall from the represented state. But expecting such agreements to hold in the current partisan environment seems dubious.

Maybe the President and Vice President should be recallable too, but that's quite a bit more complicated.

Z is for Zero, that's how it all ends -
No office, no power, no money, no friends.

--- Mad Magazine Politician's Alphabet, circa 1960

Notes

Jefferson benefited from slave labor, and might have had more time to study political topics. Yet he was deep in debt to foreign bankers most of his life, and died bankrupt. That did not keep him from writing about national debt and banking.

So there's distant precedent for Trump's financial woes as reported in the NYT: "Mr. Friedman, has done legal work for Mr. Trump since at least 2001, when he handled negotiations with bondholders on Mr. Trump's struggling casinos in Atlantic City. Mr. Friedman represented Mr. Trump's personal interests in the bankruptcies of the casinos in 2004, 2009 and 2014." Has any other president needed a bankruptcy lawyer in an ongoing basis?

Hardly anybody understood money, in Jefferson's day, now, or in between. How would bimetallism actually work in practice? Nonetheless Bryan's Cross of Gold speech is still as thrilling to read today as it was in 1896. Thrilling but shaky logical ground.

If you're curious about the details:

• speech
• local context
• global context

To preserve democratic government in which those in power remain representative of and accountable to the populace, that government must be subject to the control of a countermajoritarian document - the Constitution. This describes the democratic paradox that underlies American constitutionalism: to preserve democracy, we must limit democracy.
-- Martin Redish

There are several choices to be made that would make the result more or less like the current system, or like direct election, or like a parliamentary system. Absolute majority or plurality? Voting by districts or by state delegations? If by states, state decision by majority or plurality?

Features of our current system that probably should be preserved include fixed term lengths and ineligibility for the executives to hold legislative office - the PM is not allowed or required to be an MP, unlike England. And in our system, for good or ill, there is no head of state distinct from the chief politician. In some parliamentary systems the head of state fires the administration after a parliamentary vote of no confidence, and decides who to ask to form a new administration and be chief politician.

Tampering with the Electoral system will have unintended consequences - big social changes usually do. The key feature promoting stability in the American political process, and inhibiting third parties until the main parties get way off track, is the winner-take-all feature in 48 states, even if the winner get only a plurality. Winner-take-all is not required by the Federal Constitution nor Federal statute and definitely not anticipated by Hamilton, but is a choice made by 48 of the 50 states, Nebraska and Maine being the exceptions.

Winner-take-all means that both major parties strive not to get too far from the 20% of the voters in the middle that might go either way, and so the major parties don't strive too hard for ideological clarity and consistency. In other countries that have many ideologically fixed parties, there is much less back-and-forth of voters between parties, and much more between parties trying to form governing coalitions.

Notes

Another approach: every two years, the vice-president gets promoted automatically to president, and a new vice-president is elected by the House. There'd need to be a clearly-defined division of authority in case the two were from different parties: perhaps the vice-president is in charge of domestic matters, and the president in charge of defense and diplomacy. This could be a tradition rather than a constitutional mandate.

Remember your Virginia history? (It was required in grades 4, 7, and 11). What were the three landmark events of 1619?

One of them - the introduction of slavery to replace indentured servants (who lacked "social visibility," in the words of Louis Lomax) - has a direct line to Trump's Electoral College victory, whether he knows it or not. At the second Continental Congress, the southern delegates got Jefferson to remove his words about slavery by insisting that they'd rather remain slaves to King George than give up their own slaves - as dramatized in the musical 1776.

Maintaining the political parity of the rural slave states against the urbanizing free states was the critical issue of American politics until 1865, and maintaining "separate but equal" segregation was the critical issue in Southern politics for the next century... and finally Nixon's Southern strategy gave the Dixiecrats a new home in the Republican Party. Consequently all the former slave states voted for Trump except Delaware, Maryland, DC, and Virginia (where Tim Kaine is popular), This fault line from 1619 has been hidden in recent years but can't be concealed now that the Republicans are in power.

Speaking of Nebraska, that state tends to get short shrift for innovation from Silicon Valley. But it has had more than one good idea - the Unicameral legislature in particular. Ever since the US Supreme Court's one-man-one-vote cases of the 1960's, bicameral state legislatures have been a pointless waste of money - they had been typically adapted from the Federal Congress model with the intent to super-enfranchise rural voters in at least one of the chambers.

Whatever happened to my "A choice not an echo" bumper sticker? I suppose it's in the Bad Ideas folder along with "Get the US out of the UN and the UN out of the US" and "Impeach Earl Warren."

Under the current system, presidential decisions in the House have always been decided by corrupt bargains. When the Electoral College doesn't produce a majority, and the decision goes into the House, it's because there are three or more unreconcilable factions. The decision doesn't get out of the House until two of the factions bend slightly toward each other. Naturally the third faction calls that bending a "corrupt bargain." I thought this was a defect until I realized, in the context of 2016 possibly going to the House, that coming to such a "corrupt bargain" that enables a majority decision was the whole unavoidable point of the process, and thus was a feature, not a bug.

If we're going to have corrupt bargains, let's make them good ones. Newt Gingrich predictably proposes that Trump pardon in advance all his appointees for all their predictable crimes. Can the President pardon himself? He'll definitely have problems with the Emoluments Clause unless Congress pardons him in advance. It seems likely that a Republican Congress would do so. Couldn't the Republican leadership at least ask for some compensating concession, like publishing tax returns? But so far it doesn't look they have the interest or the courage. Let's just give them all Orders of Franz von Papen and help them to an early retirement. Maybe Putin will throw in Orders of Friendship as well.

I remember reading 50 years ago that "almost every American mother wants her son to become President, but almost none of them want their son to become a politician." It was a fundamental misunderstanding back then of one of the President's roles, but aside from that, how many American mothers want their children to become like Trump?

There are two interesting questions about the House of Representatives: How should the 435 seats be apportioned among the states (and in my opinion, Federal territories?) How should each state's districts be drawn?

It seems to me that encouraging voter involvement and turnout is an important national goal. Republicans don't agree though they won't say so publicly, because increased turnout generally favors Democrats. Currently House seats are divided among the states (nothing for Federal territories) according to the last census population. For instance, the 2010 census was the basis for the districts used to elect Representatives starting in 2012. The census population counts everybody alive even though most of them can't or won't vote. Political parties are motivated to set up voting regimes that favor one party over the other by encouraging or discouraging turnout. I think states that discourage turnout should have proportionately less influence in Congress. So each Congress should allocate districts for the next election, to states according to the number of votes cast in the last election. All House seats are contested every two years, so seats might be reallocated that often though they would tend to change slowly. There is some uncertainty associated with census counts, and that might increase in the future if the Census Bureau gets politicized. In contrast, there is very good data about how many people voted in each district in the last Congressional election.

What about districts within states? These have been decided by states, usually but not always by the legislatures. At the beginning, most states elected representatives at large, just as we still elect senators. Every ten years, though, Federal statutes redefined the rules slightly, but by 1969, all states were required to have single-member districts.

Gerrymandering districts is an old tradition but not an honorable one, beloved by both parties for the purpose of consolidating supporters, isolating opponents, and above all, retaining incumbents. The Supreme Courts one-man-one-vote decisions of the 1960's ended the worst abuses of previous generations, but redistricting is still a major source of partisan contention.

• John Oliver explains gerrymandering.
• Wisconsin's is sufficiently egregious that it will probably go to the Supreme Court.
• Sheldon Adelson is funding efforts to preserve gerrymandering.

Robert Gebelhoff thinks that gerrymandering can be positive. California's independent commission is an improvement over a smoky back room in the legislature, but it's not clear that whoever decides what a community of interest is, is making the best choice, and in a committee, one has to expect a degree of politicking to go on, even among non-politicians. Continual appeal to the Supreme Court to argue the results seems like a bad use of the resources on all sides.

But it would be possible to perform redistricting objectively. For instance, a state could publish a database of precincts by location and voter turnout in the last election, and invite any interested person or group to submit an algorithm (computer program) to perform redistricting using that database. A simple such algorithm would search for a redistricting that had equal voter turnout in each district, but minimized the maximum geographical diameter of all districts.

Pegden and Procaccia outline the "I cut, you freeze" algorithm for redistricting large states between two approximately equal parties. Applicability to third parties, and to small states with only a few districts, is not so obvious. Original story here.

The key point about a better algorithm is that it be public so anybody so inclined can see what was optimized. The legislature might then choose one of those algorithms and it might be pretty skewed, but there would be no back room mystery about how it was done, and the legislators who voted for the skewed results might in principle be accountable to the voters in a way that they currently avoid.

Better yet, the House of Representatives itself could conduct its own redistricting by the same process, but choosing an algorithm that would be applied to all the states for the next election. (It would still have to pass one-man-one-vote muster with the Supreme Court if challenged.) I don't think the Constitution prevents this; after all the House apportions the districts among states.

If the same algorithm were applied to all states, a transitory advantage in one state would likely be offset by a disadvantage in another, so that there would be no significant net gain to be obtained by tinkering with the algorithm, so redistricting would cease to be a critical issue.

Another way to improve democracy is by multi-member districts and ranked-choice voting as advocated by FairVote.org.

Here's a sample algorithmic approach applied to a database of precincts containing their populations (better yet voter turnouts), contiguous precincts, and geographical centers. For a state with N districts and population P, ideally each district should contain A = P/N population. Pick N precincts as a starting point; this could be done by e.g.

• protecting incumbents: pick the N precincts where the current N representatives reside (with special rules for the cases when population changes cause N to be larger or smaller than the previous redistricting), or
• dispersing geographically: pick the 1st precinct to be that with the largest population, the 2nd the precinct most geographically remote from the 1st, the 3rd the precinct the most geographically remote from the 1st and 2nd, etc., or
• dispersing urban populations: pick the N precincts with the largest populations.

Once the starting points have been determined, proceed by the following until all precincts have been allocated to districts:

• Identify the district with the smallest population.
• Choose the contiguous unallocated precinct with the largest population that won't increase the population of the district over A.
• If no such contiguous unallocated precinct is left, choose the contiguous unallocated precinct with the smallest population.
• If there is no contiguous unallocated precinct left, choose the closest noncontiguous unallocated precinct. There needs to be some automatic rule to deal with ties in population and ties in distance.
• Repeat until all precincts are allocated to districts.

If the same objective, observable, repeatable rule is applied in all states, then the exact rule doesn't matter so much because it will favor one party in some states and the other party in other states, with no overwhelming net benefit to either side.

The Supreme Court's one-man-one-vote rulings would still curb any state legislatures that tried to game the system by defining really odd precinct boundaries for Federal elections.

The 17th Amendment does not require that a state's Senators be elected at large; as far as I can tell, that's just a tradition. But at-large elections are a means of disenfranchising ethnic or economic minorities. If you're thinking that "minorities" is just code for "poor black and brown,", it also encompasses farmowners in California's Central Valley. So why not divide each state into two senatorial districts and redistrict them every two years too? Because senators are not elected every two years and the two senators in a state do not usually run at the same time, redistricting on the model described above for the House would likely start from protecting incumbents, with some special rule in case both incumbents reside in the same precinct. District boundaries would change three times in the course of a senatorial term.

The net effect would be that redistricting would be fair, on the whole, across the nation; local special cases that affect state legislature gerrymandering would not figure in. Although the chosen algorithm could favor incumbents as one criterion, not doing so would eliminate much of the need for Congressional term limits, I think (the Senate is another matter). Although these changes might be possible in principle without a Constitutional Amendment, it would probably be a good idea to accomplish them in that way.

The states would still have responsibility for their own legislative districts.

The problem for any such proposal is that legislators, state or federal, hate to take their hands off the mechanism to get it to veer one way or another, and generally they don't like to move the manipulation from the back room to the public light. They need to earn their re-election campaign contributions from their big supporters - also see the discussion of tax reform below. And they hate to lose their seats to redistricting.

But the Freedom Caucus' impact on AHCA and their complete immunity to both Trump and the Democrats is the result of gerrymandering. Maybe the rest of the Republicans will think about that now.

Eric Holder will lead the National Democratic Redistricting Committee. President Obama and Arnold Schwarzenegger both have adopted redistricting reform as primary retirement occupations.

What about Federal territories in Congress?

Equally American/We the People Project campaigns for full voting rights for residents of Federal territories.

Maybe it's like the first 70 years of the republic, where free and slave, I mean blue and red, states had to be admitted in pairs. So no legislative rights for Federal territories unless there's an additional red state created, like West Texas or West Florida.

So another possible solution - create one new state and fold the other territories into existing states:

• Puerto Rico becomes a new state, incorporating US Virgin Islands
• Guam, N Marianas, and American Samoa are incorporated into Hawaii
• District of Columbia returns to Maryland

One wonders how DC ever obtained the right to three predictably Democratic electoral votes. The history of the 23rd Amendment is enlightening because it was proposed and adopted in a era of bipartisanship unimaginable now. The amendment was endorsed by Eisenhower, Nixon, and Kennedy, and ratified in 1961. But the end game is the most revealing part:

Ratification was completed on March 29, 1961, 
9 months and 12 days after being proposed by Congress. 
The amendment was subsequently ratified by the following states:

    39. New Hampshire - March 30, 1961
    40. Alabama - April 11, 2002

The amendment was rejected by Arkansas on January 24, 1961. 
Nine states took no action on the amendment: 
Florida, Kentucky, Mississippi, Georgia, South Carolina, Louisiana, 
Texas, North Carolina, and Virginia.

This was before Nixon developed his Southern Strategy - the southern states were all solidly Democratic back then, so they weren't objecting to the Democratic politics in DC. Looks like racism, pure and simple.

Notes

Puerto Rico's hurricane disaster recovery and subsequent economic stability might be aided by repealing the Jones Act. That would benefit Alaska and Hawaii, too.

A US National is not the same as a US Citizen. The 17 residents of Swains Island are US Nationals and not US Citizens, along with American Samoans. By the way, the Guano Islands Act is still in effect. That might complicate the US position with respect to China's newly created Guano Islands in the South China Sea.

Total population of Federal territories is 4.4 million, about the same as Kentucky, which has six House seats. Of the 4.4 million, 3.4 million are in Puerto Rico, about the same as Connecticut, which has five House seats. 672 thousand are in DC, about the same as Vermont, which has one House seat. 372 thousand are in Guam, US Virgin Islands, American Samoa, and Northern Marianas, altogether about 2/3 the population of the smallest state, Wyoming, which has one House seat.

District of Columbia governance: In my youth, the House District Committee was where rural Dixiecrats who couldn't be trusted with real responsibility were placed. There they could left in peace to punish the residents of the District of Columbia for being black. Things hadn't changed much, and then Trump might have set a good precedent.

Representation based on turnout: Although the House has gotten beyond apportionment based on counting some persons as 3/5 of others, I think it would be salutary for the nation and voter registration and turnout if House seats were proportioned among states according to total votes cast in the last election rather than according to a total population counting those denied suffrage for various reasons. That would require a constitutional amendment.

What's the Golden Rule of politics? I heard it from the Wizard of Id: "He who has the gold makes the rules", but it dates back at least to Rousseau: "Le riche tient la loi dans sa bourse", and forward at least as far as Jesse Unruh: "Money is the mother's milk of politics".

So political contributions in excess of something like $100 should only be allowed to registered voters, disclosing their registered names and addresses at least to precinct, which should be published. PACS and other flow-through organizations should have to identify the ultimate donors as above. To avoid contribu-bots, candidates and causes would be limited to 10% anonymous funding.

Trump has promised to repeal the Johnson Amendment, which prevents tax-exempt organizations from making political contributions. The intent is to allow political contributions to be tax-deductible by going through churches, but the smokescreen is to talk about freedom of the pulpit. But don't be fooled - if Trump is for it, it's about money, not freedom, and is payback for evangelical political support. It would be better to allow only individual contributions to political campaigns, but if some are to be tax-deductible, then they all should be.

American Promise is campaigning for a constitutional amendment to reduce the role of big money in American politics, and undo the effect of the Citizens United decision.

Democracy 21 promotes statutory and judicial remedies to reduce the role of big money in American politics.

Another well-hidden aspect of corporate money in politics involves tax incentives to attract business - Amazon's second headquarters being the most prominent recent example.

It's surprising how well hidden this cash flow has become. One can only suspect that some of that cash flows back in the other direction.

• Let the President, elected by the House, be the Chief Executive Officer and Head of State, responsible for strategy and diplomacy and warfare, and nominating Supreme Court Justices and Cabinet members - and the Vice President and the Speakers of the House and Senate.
• Let the Vice President, nominated by the President and confirmed by the Senate, be the Chief Operating Officer and Chief Politician, responsible for political tactics and the day-to-day running of the government, responsible for nominating the rest of the government officials requiring Senate confirmation.
• Let the Speaker of the House, be nominated by the President and confirmed by the House, and the Speaker of the Senate, be nominated by the President and confirmed by the Senate. These would not have other elected or appointed positions, and might well be retired members of those houses who command bipartisan respect, responsible for maintaining the productive traditions of their bodies and improving other traditions, and casting tie-breaking votes. The Senate President Pro-Tem would no longer be a constitutional office - no big deal, since it's entirely honorary now. These Speakers should be nominated by the President if they are to continue to be in the line of succession to the Presidency. If not, they should be elected by their own houses.

Richard Arenberg has argued that filibuster should be preserved. I don't buy it.

The original meaning of the word was a private military invasion of a country with which the United States was not at war. Sometimes these were accompanied by proclamations of noble intent but usually the goal was some private advantage. Nowadays we call this "terrorism."

In my formative years, filibuster had come to mean a Dixiecrat Senator standing up willing to talk for the rest of his life to preserve segregation. To keep going, they would read Scripture or the phone book to avoid yielding the floor and allowing a vote. The Senate first adopted a method to limit debate in 1917, but the current rule was adopted in 1975, requiring a 60% vote to limit debate.

I don't see the need to actually have physical strength marathons. The Senate could simply adopt a rule that a 60% majority is required to pass legislation or confirm nominees, but only a 50% majority is required for parliamentary procedure motions. Whatever minority protection is valuable is retained, along with the minority ability to prevent any action and continue to justify the public's cynicism about Congress. The Senate has the power to change its rules; no constitutional amendment is required. But Democratic senators should not approve any filibuster change until Merrick Garland is confirmed. George Will advocates a return to the physical-endurance filibuster.

Based on California state legislature experience, I'd say that supermajorities should never be required to conduct routine business: that's an institutionalization of paralysis. Surveys reveal few voters in favor of a do-nothing gridlocked Congress. If a Supreme Court (lifetime) nomination doesn't count as routine, then the supermajority requirement should be spelled out in the Constitution rather than subject to the ebb and flow of partisan politics.

It's a mystery to me why anybody would voluntarily subject themselves to the dysfunctional Senate confirmation process. There needs to be some kind of timeout to force action.

So I suggest a constitutional amendment: presidential appointments requiring confirmation must be voted down by the Senate within 90 days. Otherwise the appointment is confirmed. No more paralysis.

The Supreme Court just settled a presidential appointment case having to do with acting appointments. Maybe there wouldn't be so many of those if permanent appointments were processed more quickly.

Worse, at least some California Republicans have tried to use initiative drives to sidestep campaign finance laws.

I support the idea that paid signature gatherers should be forced to wear some kind of scarlet letter so that people would understand that they might not personally endorse whatever measure they are hawking. There are counter-arguments but I think that initiatives from the people should be simple enough for the people to understand and compelling enough that volunteers could gather the necessary signatures.

There's an outside chance that events will lead to a Constitutional Convention with unpredictable results. I prefer amendments.

• National Democratic Redistricting Committee - retire gerrymandering
• Democratic Congressional Campaign Committee
• Democratic Senatorial Campaign Committee
• Democratic Legislative Campaign Committee - state legislatures
• Democratic Governors Association
• American Promise - retire "one-dollar-one-vote" and "human rights for corporations" by constitutional amendment
• Democracy 21 - retire "one-dollar-one-vote" by legislation and judicial action
• League of Women Voters - protecting and educating voters
• FairVote - tax-deductible - retire winner-take-all Congressional representation in favor of multi-district ranked-choice voting
• Citizens for Tax Justice
• Institute on Taxation and Economic Policy

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