—Rivka Weill, Harry Radzyner Law School, IDC Herzliya. This post is based on a lecture delivered on July 1, 2019 at the ICON-S Annual Conference at Pontifical Catholic University in Santiago, Chile.
In the US, there is an allegedly recurrent problem of gerrymandering of voting districts. The legal challenges against gerrymandering allege that districts are drawn to favor the political party in control of state legislatures. In addition, contenders argue that gerrymandering diminishes the voting power of disadvantaged minorities. The US Supreme Court in its latest 5-4 holding on June 27, 2019, decided that it would not intervene in partisan gerrymandering since there was no readily available justiciable measure to guarantee more democratic results and this amounted to a “political question.” Some scholars advocate the adoption of a proportional representation (PR) election method in the US as a preferable method to address gerrymandering and better reflect the popular will. My purpose is to reveal some of the less obvious tradeoffs between the type of an election system and democratic values.
PR became widespread after WWII. This is a surprising development since proportional elections existed in the Weimar Republic and may have contributed to its demise. It seems that the democratic appeal of PR outweighed the arguments against it.
The PR election method means that a political party’s percentage of support in the electorate roughly translates to a proportional share of seats in the lower or only house of the legislature. I focus on the lower house since it is usually the more powerful and democratic of the two houses. This election method is usually contrasted against the more majoritarian “winner takes all” First Past the Post (FPTP) election method in single member districts, under which a candidate may secure all the representation of a given district by winning a majority, or in some systems, even a mere plurality of the votes.
Majoritarian election systems are intended to elevate the control of the winning political party over the legislature. In addition, they tend to favor the dominance of a two-party political market, as exists in the US. Unless a third political party has control of the majority in specific districts, it will be impossible for it to enter the legislature. This effect is compounded by the fact that rational voters will often vote for a party having the chance to win rather than waste their votes. In contrast, proportional elections favor a multi-party political market in which every party that passes the electoral threshold—which is typically no higher than 5% for democratic reasons—will enjoy representation in the legislature.
The difference between these two electoral systems is not only a matter of the number of political parties competing at elections, but also affects the nature of such parties. In a two-party system, coalitions within each of the two major parties form before elections. In a multi-party system, they form between parties after elections to compose a government. Thus, the positions of the two major parties in a majoritarian system, by their nature, tend to be relatively moderate to capture the vote of the various factions within the party as well as swing voters outside the party. They target voters whose views are approximately centrist on most issues of the day. In contrast, proportional elections encourage parties to distinguish themselves from one another and emphasize differences over national unity. Proportional systems must thus confront extremist political parties as one of the side-effects of that electoral system.
The choice of an electoral system further affects the nature of the legislature and its ability to conduct its work. Parliamentary systems with PR suffer from instability of government rule. In such systems, the government is not directly elected but must gain the confidence of the legislature to rule. No one political party may usually muster a majority of the legislature. Thus, the government is composed of a coalition of parties.
Throughout its life, the government must satisfy the desires of even small coalition partners to remain in power. Small parties may leverage their positions to extract benefits for their constituents that exceed their proportional share. This may lead to inefficient and unfair distribution of goods within society. This is clearly evident in the Israeli system, for example, under which the ultra-orthodox political parties represent a small segment of the population but demand subsidies for studying the scripture and exemption from army service, as precondition for joining the government. It led Israel to two cycles of elections in 2019 alone.
The extortion power of the small parties continues throughout the life of the government, and these small parties may prompt the fall of the government if their demands are not met. In fact, parliamentary systems with PR suffer from frequent and protracted caretaker governments, who in turn suffer from both an agency problem and democratic deficit. The agency problem results from the fact that, especially during election times, and definitely post-election before a new government is formed, the existing government may be motivated by self-interest rather than by the general good. The democratic deficit results from the fact that a caretaker government no longer enjoys the confidence of the legislature. It rules to preserve continuity in office. Thus, for example, Belgium had a caretaker government serve for 589 days in 2011.
This discussion should lead political theorists to hesitate before recommending that divided societies adopt proportional elections to reduce political violence through power-sharing arrangements among different factions. Yet, proportional elections may aggravate the challenge such societies face. Such elections encourage extremist, and even secessionist, political parties and supplies them with the resources to advance their agendas. This problem is augmented by the fact that these extreme parties face weak and unstable governments. In fact, proportional elections may have contributed to Ukraine’s failure to prevent the secession/annexation of Crimea. The combination of presidentialism and proportional elections might be even worse, as was evident in South and Central America, where it led to military coups and dictatorial regimes to overcome stalemates between the executive and legislative branches.
Scholars traditionally list two counter-measures to deal with the vices of PR systems: electoral thresholds and constructive votes of no-confidence. By setting a minimum threshold that political parties must meet, proportional systems reduce the number of political parties. By requiring a constructive vote of no-confidence, the government may rule even if it loses legislative majority support, unless a majority supports the formation of a different government. Both measures are intended to contribute to greater stability of the representative bodies.
My research on the subject found that democracies tackle the disadvantages of PR by a combination of tools that we do not typically associate with PR. First, parliamentary systems with PR adopt caretaker conventions that limit the authority/ discretion of caretaker governments to normal affairs, except during emergencies. Restricting caretaker government authority/discretion to routine matters helps to deal with the democratic deficit and agency problems associated with these governments. This is a very different standard than the one typical in presidential systems, under which the regular maxim is that “there is only one president at a time,” and it is the sitting president, even if the people have already elected her successor.
Second, though democracies typically adopt the rule of legislative discontinuity to align cycles of legislation with cycles of elections, this is not true of parliamentary systems with PR. The latter often prefer to carryover bills from previous legislatures to counterbalance the shorter life cycles of their parliaments. This is a major democratic concession, which means that a bill may pass first reading in one legislature and the next readings in a successor legislature.
Third, democracies have counterbalanced proportional elections by adopting either a ban on extremist political parties or an eternity clause (including the unconstitutional constitutional amendment doctrine), and typically both. Scholars as well as courts have not linked these tools of militant democracy and proportional elections for two reasons: First, it is not customary to think of the ban on extremist political parties and eternity clauses as a mirror image of one another. I argue, however, that they belong to the same toolkit and simply kick in at different times for the protection of the constitutional status quo. The link between these two tools and proportional elections, becomes apparent only when one considers the existence of proportional elections with either of these tools of militant democracy. Second, courts and scholars associate the unamendability doctrine with the Indian Kesavananda case. Because India has an FPTP electoral system, it is harder to identify the ties between these two tools and proportional elections.
My message is that there is no escape from compromising on democratic values. A constitutional system needs to choose its poison. It may opt to be more democratic upfront by adopting a PR system but will need to offset it later by adopting less democratic tools such as militant democracy, carryover of bills or caretaker conventions. It may opt to be more majoritarian to begin with and then have less need to resort to these compromising tools.
Suggested citation: Rivka Weill, The Grass is Always Greener on the Other Side: Proportional Representation vs. Majoritarian Election Systems, Int’l J. Const. L. Blog, July 18, 2019, at: http://www.iconnectblog.com/2019/07/the-grass-is-always-greener-on-the-other-side-proportional-representation-vs-majoritarian-election-systems/
 Rucho v Common Cause, 588 US ___ (2019).
 Rivka Weill, Constitutional Transitions: The Role of Lame Ducks and Caretakers, 2011 (3) Utah L. Rev. 1087 (2011).
 Cf. Arend Lijphart, Thinking about Democracy: Power-sharing and Majority Rule in Theory and Practice (2007).
 Rivka Weill, Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide, 40 Cardozo L. Rev. 905 (2018).
 Weill, Constitutional Transitions, supra note 3; Rivka Weill, Judicial Review of Constitutional Transitions: War and Peace and Other Sundry Matters, 45 Vand. J. Trans’l L. 1381 (2012).
 Rivka Weill, Resurrecting Legislation, 14 Int’l J. Const. L. 518 (2016).
 Rivka Weill, On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties, 16 Election Law Journal 237 (2017).
 For further elaboration, see Weill, On the Nexus, id.
 Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461 (India).