[EL] Rick Pildes Guest Post

Thu Jul 4 14:17:38 PDT 2019

I'm pleased that this exchange is happening on Independence Day, with its
special connection to our nation's founding principles --  the meaning of
being created equal, how best to ensure government is grounded in the
consent of the governed, and what it might mean today for the people to act
"to institute new government, laying its foundation on such principles and
organizing its powers in such form, as to them shall seem most likely to
effect their safety and happiness."

i think Rick Pildes is right to be cautious about proposals like the Fair
Representation Act for Congress, and he asks good question about how the
single transferable vote (ranked choice voting in multi-winner districts)
might work in elections to the US House.

At the same time, we have a lot of data to help assess his questions and
similar ones, and I'm looking forward to upcoming work being organized to
evaluate such questions. In 2015, FairVote oversaw an important comparative
analysis <https://www.fairvote.org/comparative-structural-reform>involving
a lot of scholars active on this list or frequently cited that suggested a
system like the Fair Representation Act would be the most positively
consequential change we might do - and certainly more feasible than a mixed
member system in a nation where half of states have five or fewer House
seats.

What I've seen suggests strongly it won't cost more to run and win seats
within such a system, that racial minority voting rights would be expanded
and better protected, that fair political outcomes the norm.and that every
voter in every election would participate in a meaningfully contest where
their vote mattered.  Living in a Maryland community where I am directly
represented by five county commissioners, four state legislators and two
U.S Senators (as with all state residents without great complaint), I am
comfortable with not being limited to one representative per legislative
body. Having more than one representative is quite common in the United
States, with 41 states having at least some multi-member state legislative
districts as recently as the 1950s.

Speaking to Steve's original post and some email traffic earlier on Rucho
that legal scholars perhaps could do more to lay a legal theory driving
their challenge, I think there's a real case to be made that "consent of
the governed" clashes with winner-take-all elections in the modern era of
politics. For all its virtues (which are real), independent redistricting
will only marginally increase electoral competition and can result in
exceptionally imbalanced representation. Witness California, which has an
independent redistricting commission and a congressional delegation in
which Republicans hold seven seats (13%) out of 53 today despite their
nominees for president and governor averaging 35 percent of the vote in
2016 and 2018, Out of 53 California seats, 34 seats were won by landslides
of 20% or more, and only five won by less than five percent.

Consider what Justice Kagan says in her Rucho dissent in this revealing
passage, - one that underscores that fairness is not a goal:

<< Everything in today’s opinion assumes that these cases grew out of a
“desire for proportional representation” or, more generally phrased, a
“fair share of political power.” Ante, at 16, 21. And everything in it
assumes that the courts below had to (and did) decide what that fair share
would be. But that is not so. The plaintiffs objected to one specific
practice—the extreme manipulation of district lines for partisan gain.
Elimination of that practice could have led to proportional representation.
Or it could have led to nothing close. *What was left after the practice’s
removal could have been fair, or could have been unfair, by any number of
measures. That was not the crux of this suit.>>  [emphasis added]*

Without anything close to criticism of the plaintiffs and their attorneys
in this for case,I , for one, would like to see legal theories developed
that would lead to fairness actually being the crux of the case.

Rob Richie

On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> I support ranked-choice voting in certain kinds of elections, particularly
> for a single officeholder (Ned Foley's idea that States should use it in
> presidential elections is a good one).
>
> I have been more skeptical about using MMDs and RCV when electing members
> of Congress.  Take a State like NC, which might be carved up into three
> regions for MMDs; the regions would elect 4, 4, and 5 candidates.  So we
> would have 8-10 candidates running in a general election, across a third of
> the State, with voters having to rank them.  My concerns are that this
> would raise the cost of elections; demand more of voters regarding
> information than is reasonable to expect; would leave voters without
> feeling they had a representative who was "their" person.  I think a better
> approach, if we are going to think outside the box this far, is the hybrid
> German system, in which voter elect individual representatives from
> districts but there is also a party-based vote, and the overall
> representation reflects the correct PR outcome.
>
> But none of these changes are going to happen, certainly not for the 2020
> round.  So for that, I still will focus on IRCs.
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Sq. So.
> NYC, NY 10012
> 212 998-6377
>
> -----Original Message-----
> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> On Behalf Of Steven John Mulroy (smulroy)
> Sent: Thursday, July 4, 2019 3:50 PM
> To: law-election at department-lists.uci.edu
> Subject: Re: [EL] Rick Pildes Guest Post
>
> Rick Pildes does a good job explaining the practical tensions between
> partisan fairness and competitiveness, and between both and traditional
> districting criteria like compactness, contiguity, respect for political
> subdivision boundaries, and "communities of interest" (whatever that
> means). In my recent book Rethinking US Election Law, I argue that these
> tensions are inherent and irreconcilable, and reveal a fundamental flaw in
> our single member district, winner take all system. Thus, we should not
> assume that the ultimate I hope I iremedy is in independent Redistricting
> commissions (or IRCs, as Pildes calls them)
>
> . Rather, we should consider proportional representation approaches using
> multi member districts and ranked choice voting.  They have many advantages
> beyond fixing the persistence of "natural gerrymanders" even with well
> intentioned IRC map-drawers.  There should be a new piece about this soon
> in The New Republic.
>
> I hope reformers disappointed by Rucho don't rush to judgment towards IRCs
> as a perceived best practice.
>
> >
>
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