by Krist Novoselić (Revised July, 2020, 1st published January 2013)
This article examines a simple change to voting rules with electing the Washington State House of Representatives that allows for minority representation. I provide a definition of the term “fair and effective” by calling to attention State House districts with a bi-partisan delegation: offering that increasing the number of bi-partisan districts, by way of changing election rules, could better meet statutory requirements of fair and effective representation.
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”. 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.” Let us then examine Washington’s political choice for electing its State House of Representatives. 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. 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. 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.
The numbered seat arrangement is a political choice made by legislators in 1965. The State Constitution is silent on the matter of individual positions being separate races on the ballot in a House district election.
There is a consequence to this political choice. 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 the 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, while Republicans in that same district voted 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 I will offer 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 also 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 with the juggernaut of bills favoring that party passing.
The majority ruled; but the minority party, representing the voters in these nine bi-partisan districts, provided an effective voice on the floor of the House itself.
Proportional Representation
The Single Nontransferable Vote (SNTV) is a system that allows for minority representation (Lijphart, Pintor and Sone 2003). SNTV is a legally scrutinized voting method with a history in the United States. In certain configurations SNTV is also known as Limited Voting. This system has also been studied in its applications outside the US. SNTV can also be used in non-partisan elections (Amy 2000), including Washington’s non-partisan Prefers Party descriptive ballot. The voting process is simple; voters in each State House district will receive one vote to elect both seats. Think of it this way; the system is exactly how Washington State's current primary voting is conducted. Instead of a second round of elections, the top-two vote getters each win a seat in the House.
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. In this case, two candidates with single digit first-round results could still face off in the second round; offering a poor choice to the majority of voters in the general election.
With non-partisan ballots, party leaders must prevent vote splitting among self-declared 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” running from a single party under the same ballot line (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.” (1994)
Cox's 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 almost 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 result in voters coalescing around the two most viable candidates who preferred each of the two main parties. This could result in almost every house district in Washington sending a bi-partisan delegation to the state capitol of 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 proportional voting system could better meet this by allowing for a political minority voice in the district. Washington State’s two-round, single-winner election is referred to as the Top-Two – it's a majority voting system. Top-Two Pro is proportional (That’s the meaning of the term “PRO”.) PRO is different as it elects the top-two vote getters for State Representative among all the candidates in a single 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.
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
OLDER, 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, 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
(Krist Novoselić 2020 All Rights Reserved)