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The notion of fair and effective representation could be seen as a basic tenet of democracy. However rooted in some noble or righteous notion, the definition of fair and effective representation can be rather broad. The US Supreme Court’s majority opinion in Holder v. Hall (1994) addresses the lack of any clear definition of fair and effective. Justice Clarence Thomas theorized on this elusive notion stating that these are, “[Q]uestions of political philosophy, not questions of law.” He adds that views regarding representation with what is fair and effective are, “competing theories.”
Washington State conducts reapportionment of legislative districts with a bi-partisan commission. Among the various criteria called for by the state constitution and statutes, the commission shall exercise its powers to provide fair and effective representation (RCW 44.05.90 {5}). The Washington State Redistricting Commission (WSRC) submitted its reapportionment plan to the legislature on January 1, 2012. Pursuant to statute, the Commission has to publish a report including, “an explanation of the criteria used in developing the plan”[1]. This report was never published resulting in a Washington resident filing a complaint to the State Supreme Court (February 8, 2012). In his court petition, John Milem is explicit regarding the lack of a definition by the Commission regarding fair and effective representation. Milem submitted a redistricting plan recommendation to the WSRC in 2011 where he conceded, “[Fair and effective representation] is a rather amorphous, subjective standard. How does one prove that one's plan satisfies it?” He then adds, “I believe that fair and effective representation is enhanced by providing districts which the average voter can recognize and relate to, can understand the commonality of.” Mr. Milem does expound on this in his recommendation, however, even if the parties do agree on Mr. Milem’s definition, we can still place it among the competing theories of fair and effective representation.
As Justice Thomas also stated in Holder, “[G]eographic districting and other aspects of electoral systems . . . are merely political choices.” [2] Let us then examine Washington’s political choice for electing its State House. In Washington’s bi-cameral system, there are forty-nine legislative districts each containing one Senator along with two State House Representatives who are elected at-large. On the ballot, the two House seats are divided among individual positions; candidates for state house file for either Position 1 or Position 2 then run exclusive campaigns for each seat. This election arrangement is a political choice made in 1965. The State Constitution[3]is silent on the matter of individual positions being separate races on the ballot in a house district election.
There is a strong consequence to this political choice however: these two individual positions, in effect, function as a single-member district. This dynamic has partisan implications as one party usually controls both House seats. Only nine out of forty-nine House districts are currently shared between a Democratic and Republican representative. We can also find this bi-partisan dynamic by examining Senate seats in a respective district. There are two districts where Senator is from one party and the House delegation is from the other. Washington has eleven bi-partisan delegations among its forty-nine legislative districts.
Seventy-eight percent of legislative districts are held exclusively by one party or another. Because of partisan gridlock, the 2012 Washington State legislature held a thirty-day extended session. Polarization in Olympia is also apparent with an examination of the voting record of legislators in the bi-partisan House delegations. Democratic representatives voted almost consistently YEA with Republicans, in that same district voting NAY about half the time. Democratic votes being almost a flush YEA is an indicator that the House committees were producing Democratic friendly bills. It is in considering these floor votes where we arrive at a theory of fair and effective representation. In the State House, Democratic voters from the bi-partisan districts have an effective voice with the YEA on roll call votes. Republican voters in these same bi-partisan districts have an effective voice but with the NAY votes. Effective votes on the ballot translated into effective votes on the House floor. For the 2011 / 12 session, Democratic members held a fourteen
seat majority in that chamber and the juggernaut of bills favoring party resulted in their legislation passing. The majority ruled but the minority party, representing the voters in these six bi-partisan districts, provide an effective voice on the floor of the House itself.
seat majority in that chamber and the juggernaut of bills favoring party resulted in their legislation passing. The majority ruled but the minority party, representing the voters in these six bi-partisan districts, provide an effective voice on the floor of the House itself.
Since 2008, Washington has used a “Top Two” system with state elections. All candidates run in a first stage (primary) election then the top two plurality winners, regardless of party affiliation, run in the second stage (general) election. Western Washington University professor Todd Donovan has published an early assessment of the system. He mentions Top Two advocates key claim how this type of election would elect moderates (8). He concludes the Top Two has had weak effects remedying polarization in the legislature (19).
Another goal of having two rounds is to reflect the will of the majority of voters. However, if the goal in State House elections is fair and effective representation as reflected in maximizing bi-partisan districts, the majority rule criteria falls short. A semi-proportionalvoting system could better meet this goal by allowing an ethnic and / or political minority voiceelection in the district.
The Single Nontransferable Vote (SNTV) is a such a system that allows for minority representation. SNTV is a proven constitutional voting method with a history in the United States. This system has also been studied in its applications abroad. The voting process is simple: voters in each State House district will receive one vote to elect both seats. As there are fewer votes than seats up for election, in certain configurations SNTV is also known as the Limited Vote. This type of system facilitates minority representation (Lijphart, Pintor and Sone 155). SNTV can also be used in non-partisan elections (Amy 128), including Washington’s non-partisan prefers party descriptive ballot.
Washington’s single winner election system is referred to as the Top-Two system. Semi-proportional SNTV, as proposed herein, is different as it elects the top two vote getters among all the candidates in one election instead of having two face off in a second round. Both systems share similar quirks that tend to run wild in the hypothetical realm. With SNTV, one candidate could be elected with 95 percent of the vote and another, if they finish second, can win with less than five percent. The current Top-Two runoff tends to suffer from large fields of candidates in the first round. Again, hypothetically, two candidates with single digit first-round results could face off in the second round. These two could both offer a poor choice to the majority of voters. With either election methods, party leaders have incentives to prevent vote splitting among their candidates. A recent study by Gonzaga University researchers found that even with Washington’s “PREFERS PARTY” ballot disclaimer, a device intended to limit influence of political parties on elections, major party leaders discourage candidates to prevent “too many” in a race from a single party (Beck, Henrickson 2012).
SNTV has been measured through the lens of such concepts as decision-theoretic analysis. Professor Gary W. Cox, an expert on SNTV, has studied the results of this system’s use in Japan. Cox has an explanation of real-world data finding the, “two systems [plurality and semi-proportional] are alike in their strategic voting equilibria.” (Cox 608) His research shows that voters use the information offered in campaigns (polls, reporting, fundraising totals, endorsements, etc.), to rationally decide who the most viable candidates are then vote for them. In our state legislative races, voters without exception elect candidates that prefer either the Democratic or Republican party. In Washington, most candidates prefer one of these major parties on the ballot for a reason; party funds and other resources can be made available to them to promote their campaigns. Partisan voting tendencies would likely manifest in the district and voters would coalesce around the two most viable candidates who preferred each of the two main parties. This would result in almost every house district in Washington sending a bi-partisan delegation to Olympia.
TOP TWO PRO
The popular term for the version of SNTV described in this article is Top-Two Pro.If the goal in State House elections is the notion of fair and effective representation as offered above, a semi-proportional voting system could better meet this by allowing for a political minority voicein the district. Washington’s two round, single winner election is referred to as the Top-Two – it is a majority voting system. Top-Two Pro is proportional (That’s the meaning of the term “pro”.) It is different as it elects the top two vote getters for State Representative among all the candidates in one election.
Election reform is a process of finding the right balance. As Political Scientist Mark Rush says, “[A]ny [reform] will bring with it a new host of questions and controversies about its inherent fairness” (Engstrom & Rush 119). Bi-partisan districts for Washington State could fit a definition of what is fair and effective representation for the voters. This definition will serve well if translating votes from the ballot onto votes to the House floor is paramount. A wide range of proven options for minority representation voting systems are available to provide fair and effective representation. This paper offers Top-Two Pro to speak to this notion. It is up to the citizens of Washington, as taxpayers and subjects of the law, to recognize allowing for minority representation as fair, and votes on the ballot translating to votes on the floor as being effective.
Works Cited
Amy, D.J. Behind The Ballot Box: A Citizens Guide To Voting Systems. Praeger Publishers Westport, CT (2000) 128. Print
Beck, J. H. and Henrickson, K. E. (2012), The Effect of the Top Two Primary on the Number of Primary Candidates. Social Science Quarterly. doi: 10.1111/j.1540-6237.2012.00876.x (LINK: http://onlinelibrary.wiley.com/doi/10.1111/j.1540-6237.2012.00876.x/abstract)
Cox G.W. “Strategic Voting Equilibria Under the Single Nontransferable Vote.” The American Political Science Review 88.3 (Sep., 1994) 608 Print
Donovan, T. “The Top Two Primary: What Can California Learn From Washington?” The California Journal of Politics & Policy 4.1 (2012) 8,19 Print
HOLDER, individually and in his official capacity as COUNTY COMMISSIONER FOR BLECKLEY COUNTY, GEORGIA, et al. v. HALL et al. 512 U.S. 874 (1994)
Lijphart, A. Pintor, R.L. Sone, Y. “The Limited Vote and the Single Nontransferable Vote: Lessons form the Japanese and Spanish Examples.” Electoral Laws and their Political Consequences. Ed. Bernard Gromfman and Arend Lijphart. Agathon Press, INC., New York 2003. 154-169. Print.
Milem, John, in re 2012 Washington State Redistricting Plan. Supreme Court of the State of Washington, NO. 86976-6, 2012.
Rush, M.E. Engstrom, R.L. Fair and Effective Representation? Debating Electoral Reform and Minority Rights. Lanham: Rowman & Littlefield Publishers, INC. (2001) 119 Print
[1] RCW 44.05.80 7b
[2] The ruling also gives a nod to proportional voting systems by stating, "The decision to rely on single-member geographic districts as a mechanism for conducting elections is merely a political choice -- and one that we might reconsider in the future.... Already, some advocates have criticized the current strategy of creating majority-minority districts and have urged the option of other voting mechanisms -- for example, cumulative voting or a system using transferable votes [e.g., preference voting] -- that can produce proportional results without requiring division of the electorate into racially segregated districts."