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Text of Congressional Fair Representation Act Available — 28 Comments

  1. Hmm . . . so far, the bill looks to be fairly thoroughly tied to selection of candidates via *primary* elections — dunno how it would work for alternative parties not allowed into primaries by state law. And another thing is that part of the definition of “independent” is not being or having been a candidate or an officer of a[ny] political party, not just of the Titanic Two . . . how many alternative parties have active members who aren’t candidates or officers of the party at some level?

    Another interesting possible bottleneck is that, if the Legislature’s Select Committee on Redistricting (made up of members of the top two parties in the Legislature only) rejects (or ignores) three efforts of the nonpartisan agency selecting the 2nd-round pools of redistricting-commission members (12 each majority/minority/independent out of 20), the whole process goes straight to the DC District Court. One court for the whole country. Reasonable for purposes of consistency, I suppose, but how many cases will it get?

  2. Primary elections? Single-winner districts in “some states”? “Fair Representation” but not proportional representation?

    This looks like another failed proposal by FairVote and those who decline to do the math, the IRV and RCV single-winner districts they propose are a bad deal for everyone except the status quo.

    Why is Rob Richie and FairVote always promoting single-winner voting districts where only the largest party/civic group can win elections with 50% (plus one vote) year after year, leaving nothing for 2nd, 3rd and independents?

    Are you interested in pure proportional representation (PR)?

    The United Coalition has been using pure proportional representation for more than twenty-two consecutive years and it works fine. See our coalition of candidates for public office who are elected along with the Unity Platform under pure proportional representation:

    http://international-parliament.org/ucc.html
    * * *

  3. CORRECTION: I confused the text of the bill a little bit with the text of FairVote’s “Just the Facts” flyer. The flyer suggests a pool of 20 each majority/minority/independent potential members of the independent redistricting commission, from which the bi-partisan Select Committee picks four each. The bill text cuts the 20-each pool down to 12 each; somehow I’d gotten the mistaken impression that there were separate steps of 20-each and 12-each on the way down to 4-each.

    * [========] *

    While I’m here, it may be worth noting how the bill defines the “nonpartisanship” of that agency who selects the pool. From pp 56-57 of the bill, an excerpt from Subsection 314(a):

    (a) ESTABLISHMENT OR DESIGNATION OF NONPARTISAN AGENCY OF STATE LEGISLATURE.—

    (1) IN GENERAL.—Each State shall establish a nonpartisan agency in the legislative branch of the State government to appoint the members of the independent redistricting commission for the State in accordance with section 311.

    (2) NONPARTISANSHIP DESCRIBED.—For purposes of this subsection, an agency shall be considered to be nonpartisan if under law the agency—

    (A) is required to provide services on a nonpartisan basis;
    (B) is required to maintain impartiality; and
    (C) is prohibited from advocating for the adoption or rejection of any legislative proposal.

    The section goes on to say a state can designate an existing agency to serve this function if it meets those criteria. One thing it of course doesn’t say is how it will protect the rights of any other parties besides the Titanic Two. After all, bi-partisan is the same as non-partisan, right? . . .

  4. This bill appears to be a mess to my layman’s eyes, for a whole variety of reasons. Here are 3 examples: a) it only applies to House elections, not Senate elections, b) it has a totally different set of rules for single House seat states, c) it says it applies to runoff elections(?).

    Generally the bill does two significant things – 1) it forces states to implement RCV for all House elections (only), and 2) creates multi-winner districts for all states except states with one rep (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming). It also provides funding to states for implementation of RCV.

    For single House rep states, the winner is determined by normal IRV tabulation in one or more rounds. However, after reading the bill a couple of times, I still do not understand the algorithm for determining the multiple winners, and I’m a computer programmer who generally groks this stuff easily.

    The bill also requires “independent commissions” for oversight of redistricting to significantly reduce the number of House districts. Really? Does anyone believe that will happen when state politics are involved?

    I have a whole slew of other questions, to wit –
    How does this integrate with Top Two and with Louisiana’s runoff system? How does this not run afoul of the constitutions of various states which seem to be conflict? Does a US statute really have the power to alter state constitutions in this area? For example, it would seem that Maine’s requirement for a majority winner (which was used as justification to overturn the IRV referendum) is in conflict.

    The US House is not about to approve this bill, if for no other reason than it would likely toss out a third of its members when the law is implemented.

    The bottom line is what I said in a previous thread – Not Gonna Happen. Pure fantasy. State by state implementation of RCV-IRV with no change to existing single winner elections and districts is the only viable possibility for significant change to election laws.

  5. No need for a constitutional amendment. As far as the Constitution is concerned, states are free to elect all their US House members at-large, and there are many instances in history when that happened. In 1932, there were all at-large elections for US House in Kentucky, Missouri, and Virginia. Also that year, New York, Oklahoma, Texas and Illinois elected some US House members at large.

  6. Congress should repeal the law passed in the 1920s freezing the size of the U S House at 435 members and reapportion the House into about 6,000 districts. Smaller districts of about 50,000 population each obviates the problem various schemes for ranking candidates.

    Furthermore, voters should not be restrict to any arbitrary list of “qualified”, that is censored, candidates. Voters should have an all write-in ballot which complies with the voter’s First Amendment right to publish their vote for any other citizen they please with a plurality winner. NO “runoffs” to force a majority plus one to censor voters.

    In the event a plurality winner is disqualified from office, the candidate with the next highest vote total is elected. In the event of plurality tie votes, coin flip to break the tie – odd man out.

  7. Richard – IMO, your logic about constitutionality has some circular logic that is irreconcilable.

    You wrote “As far as the Constitution is concerned, states are free to elect all their US House members at-large…”

    And yet you conclude that a simple Act of Congress can force states to elect their House reps in the manner prescribed by the law. Which is it?

    Essentially you are saying that when the Constitution is silent, default authority goes to feds, not the states. What are those pesky 9th and 10th amendments about then?

  8. @Don Wills: Article I, Section 4, authorizes Congressional intervention in state elections. There is no silence, it is explicit.

  9. Article One, section 4, says, “The Congress may at any time by Law make or alter” state election laws concerning congressional elections. That is why Ron Paul, who takes the Constitution very seriously, was willing to introduce a bill four sessions in congress that outlawed restrictive state ballot access laws for congress. That is why we have federal laws telling the states they must let people register as late as 30 days before any federal election, and they must mail overseas absentee ballots at least 45 days before a federal election, and they must let people register to vote at welfare offices and motor vehicles offices.

  10. @Richard Winger, Don Willis,

    After 1842, at-large elections were permitted under federal statute under certain circumstances. Following reapportionment, if a state gained representatives, it could elect the additional representatives at large “until” (wink wink nudge nudge) it redistricted. If a state lost representatives it would “have” (wink wink nudge nudge) to elect all its representative at large until it redistricted.

    It was a bit more complicated – it was based on the number of single-member districts. A state might have eight representatives elected from eight single-member districts. An additional ninth could be elected at large, and perhaps a tenth, a decade later. If the state then lost a representative, it could continue to elect eight from the original districts, and one or none at large, depending if it were down to eight or nine.

    The conditions were based on not redistricting, rather than not having enough districts. So if the state had eight districts and one representative elected at large, it could not change the eight districts. It had to draw nine districts. This gave an incentive for states without the political will to redistrict to maintain the status quo, as districts became more malapportioned over time.

    After Wesberry v Sanders, federal courts were overturning congressional apportionment plans all over the country. Federal courts do not have explicit authority to redistrict, but may fashion a remedy. They were proposing a remedy based on the federal law, in which all representatives from a state would be elected at large until the legislature passed a valid districting law.

    Congress reacted by passing the current law, that always require single member districts. The old provisions are still there (2 USC 2a(c)). The new provisions are in 2 USC 2c. Congress did not repeal the obsolete provisions because they are (being charitable) congressional.

    The SCOTUS has ruled that a court remedy of ordering at-large elections when a state has lost representatives and not lawfully redistricted still exists.

    2 USC 2c has an exception that applied only to the 91st Congress (elected in 1968) which permitted states which had always elected at-large to continue to do so for that election only. This applied only to Hawaii and New Mexico, but New Mexico divided into two districts before the 1968 election. Hawaii, in 1968, was the last state to elect multiple members at large.

    After the change in law, federal courts have fashioned new congressional districting plans, but the SCOTUS has directed that they defer to state policies as much as possible. Sometimes states have jammed the process, forcing the federal court to take over. This happened in Virginia.

  11. Richard’s post is incomplete.

    For readers, here is the full text of sentence from which Richard quotes –

    “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

    Wikipedia’s description of this section of the Constitution makes my point clearly. Here it is that first paragraph –

    “The purpose of this clause is twofold. First, it makes clear the division of responsibility with respect to the conduct of the election of federal Senators and Representatives. That responsibility lies primarily with the states and secondarily with Congress. Second, the clause lodges the power to regulate elections in the respective legislative branches of the states and the federal government, not with the executive or judicial. As authorized by this clause, Congress has set a uniform date for federal elections: the Tuesday following the first Monday in November.”

    The remainder of the Wikipedia discussion backs up my point that a wholesale modification to how Representatives are elected is not the jurisdiction of the Congress. Specifically, the “Manner” of the elections is reserved to the States. And yes, there have been court cases that allowed certain regulations regarding federal elections to be put into federal law. However, nothing this significant that can arguably be called the “Manner” of an election has ever been written into federal law, and therefore the courts have not set any precedent. My originalist interpretation of the Constitution does not conflict with the bill that Ron Paul introduced, which is “Regulation”, and not “Manner”.

    And recall the lawsuit that Sheriff Mack won which basically says that the Federal government has no authority to compel states *to do anything*. Sure they can buy them off with money, but the feds cannot compel anything of the states.

    Here’s the link for readers of the entire Wikipedia discussion – https://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Clause_1:_Time.2C_place.2C_and_manner_of_holding

    As always, I express my reservation that this discussion is analogous to arguing about the number of angels on the head of a pin.

  12. Don, you didn’t say anything about Ron Paul’s ballot access bills, introduced in the 1990’s. Do you think Ron Paul was introducing an unconstitutional bill?

  13. Hi all. This is Drew from FairVote. I wanted to hop on and help answer some questions.

    First, some people raise concerns with the drafting style of the bill, for example the bill’s noting that RCV applies to “runoff elections” and difficulty parsing the section describing multi-winner RCV. The drafting was done by House legislative service. I would agree that some parts are not drafted in a way that I think is best, but I do believe everything is accurate. The bill requires the use of multi-winner RCV (the “weighted inclusive Gregory method”) for all states entitled to more than one Member. States with up to 5 Members elect statewide, while larger states adopt independent redistricting commissions that will adopt multi-winner district maps, with each district electing 3, 4, or 5 Members each. We have sample maps for every state at fairrepact.com.

    Several folks have questions about primary elections. The bill requires that primary elections be by RCV and that each party nominate (by default) 3, 4, or 5 nominees depending on the size of the district. Parties can choose to nominate fewer, but never fewer than 2 (unless only 1 person actually runs, of course). Louisiana would hold only one round of voting under this bill; no runoff elections. California and Washington would hold a blanket preliminary election with all candidates on the ballot by multi-winner RCV, with 6, 8, or 10 candidates advancing to the general election for a 3, 4, or 5 winner district respectively.

    Federal law takes precedence over state law for congressional elections, so to the extent any of this conflicts with state constitutions or state laws, the FRA will govern. That’s not radical or unusual: it’s the ordinary way of resolving conflicts between state and federal law in any area where Congress has the right to regulate, which it absolutely does in congressional elections. One particular note: the Maine Constitution does not conflict with RCV at all for federal contests. The provisions the Court opined on only apply to governor and state legislature. Maine can constitutionally implement RCV for its federal congressional offices right now.

    As for whether this will pass: I believe this bill, or something very much like it, must pass at some point. For that to happen, it needs to be out there and being discussed. It is unlikely to pass in 2017, but it is critical that it be introduced in 2017 if it is to pass in the (hopefully near) future. Its introduction is important and absolutely historic.

    I’m happy to answer followup questions here. Alternatively, you can email me directly at dpenrose@fairvote.org. I appreciate folks engaging with the policy and raising questions.

  14. Drew – thanks for your response.

    Why does California end up with different rules? In your opinion, does Congress *have* or *not have* the authority to overturn Top Two?

  15. I think congress has authority to overturn top-two for congressional elections.

  16. I agree with Richard on the legal question. Congress can regulate congressional elections very broadly, and that includes primary elections.

    This bill attempts to take a pretty light touch when it comes to primary elections, because if we outlawed “Top X” primaries or open primaries or closed primaries or all primaries, that would be a hang-up for folks who otherwise would support replacing winner-take-all with a more proportional system. Not dictating primary election method (beyond requiring it to be by RCV and to advance more candidates) allows the conversation to stay focused on the benefits of multi-winner RCV.

    Note that although the bill does not directly regulate ballot access, it does change the incentives. Voices outside the two major parties cannot be shamed as “spoilers” under this system.

  17. RIchard and Drew – I disagree with your opinions about Congress having such authority. That said, I believe that we will never have the question answered by the courts as this bill will not become law in my lifetime (hopefully at least a couple of more decades).

    Drew – I would suggest that FairVote needs to try to get this scheme of elections implemented in one or more of the states with 3, 4 or 5 House Reps so folks can see how it works. Change of this magnitude is simply a bridge too far for most voters. And I would posit that if FairVote can’t get it enacted into law in a few states, then the feds won’t ever do it. The prime example of that is the multi-decade long change with regard to cannabis that is being spurred by individual states, and not Congress. Congress is usually the last political entity to get on board major changes like this.

  18. @Drew . . . you haven’t yet addressed the issues of participation in this whole process by alternative parties, or how “independent” and “nonpartisan” the commission members and their appointing agency would be when bi-partisan legislative committees could exercise effective veto power under the letter of the statute.

    Please remember that — even after billions of dollars are spent in would-be “us or them” polarizing campaigns like last year’s — more voters in the US identify themselves as neither Democrats nor Republicans than as either one. Especially in the “first-past-the-post” US, true election reform should arguably protect the rights of that oppressed plurality first.

  19. @Don Willis,

    The implementation for STV elections in the bill is incomplete. You can visualize an STV election as the voters going up to and standing next to the candidate they support. The goal of the process is to have equal-sized mobs standing next to the elected candidates. If there are four candidates to be elected, then the mob-size (or quota) is slightly more than one-fifth of the total number of votes cast. The four elected candidates will ideally have that size mob, and there will be a fifth mob of slightly fewer voters who are disappointed.

    Since voters can’t all meet, and voting is secret, you can think of voters filling out their ballot, and an placing it in a ballot reader of an android’s vest pocket. The androids then follow the instructions. Or you can use the ballots directly and instead of mobs, you have stacks of ballots. Or you can transcribe the ballots to a computer – the rankings can be represented by an array, and there can be additional information such as which preference is currently active. There is another array with the vote totals of the candidates, and we seek to equalize the values of the winning candidates, and reduce those of the other candidates to zero.

    Regardless of the analogy, it is not “votes” that transfer, but voters, androids, or ballots that transfer.

    There are two types of transfers. One is from the elimination of trailing candidates. This is done in the same manner as under IRV, with the ballots transferred to their next preference.

    The other is from the transfer of surpluses. If the mob of voters around one candidate was larger than the quota, that candidate would be elected. The excess of voters (the surplus) would be directed to transfer to another candidate. Different STV methods differ in how surpluses are transferred. In Ireland and Cambridge, Massachusetts, some ballots are selected to be transferred. For example, if the quota were 100, and a candidate had 120 votes, for a surplus of 20. 20 ballots would be selected from the 120, and transferred.

    In other jurisdictions, all of the ballots are transferred but with a reduced value. For example, with 120 votes, and a quota of 100, all 120 ballots would be transferred, but with a weight of 20/120 or 0.1666. If we were doing this with actual voters, we would not chop off an arm or leg, but simply give the voters a receipt that their ballot was now worth 1/6 of a vote. The other 5/6 would be credited to the elected candidates.

    There are a lot of different ways to handle surpluses, and really the details should be placed in regulations, not statute.

    STV for electing one candidate is the same as IRV. The big difference is that you never transfer a surplus. If a single candidate has a majority of the vote, he will have a surplus, but there will be no need to transfer it, since all the candidates will have been elected.

    Lawyers are uncomfortable with a statement like “If one candidates are to be elected” even though the algorithm works for values of N greater than or equal to 1.

  20. Maybe it’s just me, but I’ve never really understood the attraction of working with “surpluses” and having to argue over and decide which way to do so. It seems to me a simpler process, to explain at least, if — after the first candidate is elected — all ballots are re-counted from the start with that candidate eliminated from further consideration until another candidate is elected, and so on. (It feels as though that might be more Condorcet-compatible too, but that’s just a feeling; I don’t have the time at the moment to bone up on the math to figure it out.)

  21. @Don Wills, the proposal handles existing primary systems in the following way:

    Segregated Partisan Primaries (47 states): The primaries would employ STV, but each party would be able to restrict the number of nominees.

    Top 2 (Washington and California): The primary would employ STV and at least 2N candidates would advance to the general election.

    No Primary (Louisiana): The congressional election would continue to be held in November and employ STV.

    There is a strong presumption in the legislation that districts would divide 2:1 or 3:2 between the two oligarch parties. While districts with four representatives are permitted, this is only where necessary.

    ***********

    Requiring single member districts is imposed by Congress. This is a manner regulation. Maine has no constitutional regulation of congressional elections. In many states, the election of congress is the same as for the legislature, but that is by statute. When Maine did away with majority election for legislators in the 1840s, they put that in their constitution, but it had the effect of eliminating majority election for congressmen as well. This was before their were government-printed ballots, and all elections were nominally write-in. If no candidate received a majority, they would hold another election in a couple of months. Each election was called a ‘trial’, as they tried to elect someone. Sometimes there might be a close election, and a third candidate would prevent a majority. When there were anti-slavery parties, it might produce a three-way split. In many cases there would be no resolution until one candidate gave way (that is there was a personality factor at work). In rare cases, a congressional term would pass without a representative being elected.

    Maine changed to plurality election to prevent this sort of deadlock from happening.

    It is clearly within the authority of Congress to regulate the manner of congressional elections. At one time it was believed that Congress would draw congressional districts.

    There has been a reticence to act. Representative are accustomed to the current system, and they likely were elected to other offices in their state. If the system elected them, it must be a good system. When the Louisiana legislature was debating restoring the Open Primary to congressional elections, the legislators simply could not grok the concept of partisan primaries. Louisiana has term limits, and they had never run except under open primaries.

  22. @Don Willis,

    Congress has the authority to impose Top 2 for congressional elections for all states. There has been legislation proposed by a Washington representative to do just that.

    It could also require all states to have segregated partisan primaries, or prevent any preliminary qualification other than a petition or filing fee like in Louisiana.

  23. @Don Wills,

    Congress requires election from single-member districts. When they imposed the requirement in 1842, there was only one way to hold an election since there were no government-printed ballots. All elections were essentially write-in. A political party could choose its “nominee” and then provide support, such as distributing party-printed ballots. They would restrict alternative parties by beating up the supporters trying to distribute ballots for the other party and burning the ballot or throwing them in a swamp. Or they might present defective ballots. A ballot might claim it was a “Democratic” ballot, but not have all of the Democratic candidates.

    When the switch to single-member elections was imposed, the Whigs were in control of Congress. A couple of states refused to switch, and the Democrats took control of Congress. They were unwilling to unseat the representatives elected at large (who were Democrats). But by the third election, all states had conformed.

    The same thing happened when they set the uniform congressional election date in 1872. Some states ignored them for several elections, but they all eventually conformed (Maine belatedly nearly a century later). At the time, many states had their own election dates for their legislature and other officials. Gradually, states conformed, since it was confusing to have a general election, and then a congressional election, particularly if they were a couple of months apart. The only states that still resist are those with odd-year elections (New Jersey, Virginia, Louisiana, and Kentucky).

    A state could switch to STV for legislative elections. It may make more sense because legislatures are usually larger than congressional delegations. To effectively campaign in a multi-seat district with two to four million persons is going to be expensive. You can’t just campaign in your old district and hope you pile up a lot of votes.

  24. @John Anthony La Pietra,

    I apologize for slowness to respond. Your question seems to be about the participation of citizens on the independent redistricting commission who are not members of the two major parties. Technically, the commission must always include 4 members who are not members of the two major parties, but I get that you are skeptical that they would be always be legitimately independent, given that a bipartisan commission approves the pool of nominees. I’d make several points about this:
    1. Multi-winner districts with RCV help to better represent the voters in the state almost no matter how the lines are drawn. The system itself is remarkably inclusive, so the impact will be for elections to be remarkably inclusive, even if the redistricting process itself fails to be perfect in some way.
    2. Anyone can submit a district map to the commission, and the commission must justify its choice of map based on the criteria spelled out in the statute. Those regulate what maps will be superior to other maps very closely, meaning that the commission has relatively little discretion. It would be very difficult for them to manipulate the outcome in a predictable way, especially given point 1 above.
    3. Related to point 2, the commission operates publicly and takes public input regularly. Those outside the two major parties will have opportunities to submit maps and to testify at hearings. If the commission attempts to manipulate things somehow, they will also be permitted to bring a lawsuit after the fact.

    I hope that’s helpful.

  25. @Drew, thank you for your reply. Unfortunately, it does not address the problems of Titanic Two control over the selection of the appointment agency; the definition of “nonpartisan”; the exclusion from the “independent” pool of officers/candidates/etc. of ANY party, not just of the Titanic Two; the references to selection of candidates by primaries (excluding parties on the ballot but not allowed into the primaries by state laws); and so on and on.

    As to what your reply does cover:

    (1) Multi-seat districts and RCV may offer some improvement over single-seat districts and FPTP, but I am also skeptical that the improvement will necessarily be “remarkable” — especially with the power still in the hands of the Titanic Two.

    (2) The criteria in Section 313 don’t look all that different from those supposedly used now — except for the ones directly related to the multiple-seat nature of districts, and even they don’t look to offer much anti-gerrymandering resistance to the computerized redistricting planning now available to the Titanic Two. (The one on minimizing four-seat districts makes no sense to me — if it had any effect, it would be to create more three-seat districts. For example, Michigan right now has 14 US House seats; they could be split 5-5-4 or 5-3-3-3.)

    (3) The common citizen’s right of legal action is much more limited than that of the (partisanly elected) Attorney General, who can sue at any time for any relief appropriate to enforcement. Citizens have only 45 days to file suit, and may only sue once a plan is enacted into law — and only if that plan fails to meet the letter of this law. And the fact that all cases are directed to the DC District Court is rather more of a hardship on the average citizen than on a state Attorney General.

    If you really want to stop the denial (by dilution) of voters’ rights to vote effectively, please go straight to proportional representation. (And take a look at the super-Voting Rights Act in Section Two of the Fourteenth Amendment, also sometimes known as the Mal-Apportionment Penalty.)

  26. How is it that so many people have commented without seeming to not even have read a brief summary of the bill…..

    The internet is depressing.

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