I Cut, You Choose: Democracy Works When People are Heard
Every child is taught that the fair way to divide a cake between two siblings is for one to “cut” and the other to “choose.” One doesn’t need a degree in Rawlsian veils of ignorance to understand that this system will encourage a fair cut.
Elected representatives love cake. And by cake I mean that they love choosing their own electoral systems. If they decide how they are to be re-elected, is it any wonder that in 2016 incumbents were re-elected at higher rates than ever? We have two ways to prevent these systems devolving into tyranny. One is the courts. The other is the people. As a litigator, I spend a lot of time thinking about the courts, but here I want to focus on the people.
Many states allow the people to amend the electoral laws via ballot proposition. I’ve previously shared my excitement that the people of Maine voted to adopt an election system proven to reduce partisan polarization and increase minority representation. Sadly, the story does not end with a victory for the people…yet.
In 2016, supporters gathered over 75,000 signatures to place “Question 5” on the ballot in 2016, the campaign to adopt ranked choice voting for federal elections in Maine. At the 2016 election, Question 5 won with 52 percent of the vote. Usually in a democracy, even after a bitter campaign, once the people have spoken and the votes have been counted (according to whichever rules apply), that is that. We get a new policy, or a new president, and everyone moves on.
Rather than accept the will of the people, the Maine legislature took the 2016 vote as an opening offer…that they refused. Within three months of the election, the legislature had started on efforts to reverse the people’s vote of 2016.
Undeterred, the people of Maine have again collected signatures (this time, over 80,000) to support “the people’s veto” of the legislature’s reversal of the people’s 2016 vote. According to the leader of the committee for ranked choice voting, in an interview with the Portland Press Herald, “To my knowledge, this is the first time ever that the people passed a law, the Legislature said, ‘We know better’ and repealed it, and the people have risen right back up to say, ‘We insist!’”
Unfortunately, Maine is not the only place where the will of the people to adopt a fairer election system has been challenged by those in power. In 2008, the people of Memphis voted to adopt instant runoff voting (“IRV,” as ranked choice voting is called in Tennessee) for their city council elections. The city has been working on the technology to be able to use IRV, and now, just when they are ready to start using it, a Tennessee legislator authored a bill to outlaw IRV across the state. CLC filed a letter opposing this bill. Luckily for the 71 percent of Memphis voters that supported IRV in city council elections, at the last minute it was withdrawn. Since it could come back up again, vigilance is needed to monitor any new efforts to undermine the voters of Memphis.
The people of many states chose to enact constitutions that allow for ballot propositions. The people now use those propositions to adopt electoral systems that they think are fair. And then legislators desperately try to hold on to power by changing the rules of the game. Well, time is up.
Across the country in 2018, there will be dozens of ballot initiatives aimed at expanding the franchise and limiting the ability of legislators to manipulate the rules to stay in power. These types of reforms enjoy overwhelming bipartisan support and, absent legislative shenanigans, will hopefully be adopted. Now it is up to legislators across the country to learn from the people of Maine: if voters cut the cake, you’d better eat the slice they give you.