Threlkeld, Simon. “Reply to Paul Lucardie’s 2014 Book.” September 19, 2017 (updated July 25, 2018). PDF:
Threlkeld.Lucardie.Sept18.17.July25.18update

PDF, September 19, 2017.
Threlkeld.Lucardie.Sept19.2017

Draft in PDF on September 7, 2017.

See next post for finished version.

Posted at Equality by Lot, May 18, 2017.

Lysander Spooner, trial juries, and legislative juries
By Simon Threlkeld, May 17, 2017

Lysander Spooner (1808 to 1887) was a prominent 19^th century legal theorist, abolitionist (abolition of slavery), and competitor with the U.S. Postal Service until they shut him down.

He continues to be cited in the U.S. including for example by Justice Scalia writing for the Supreme Court majority in 2008 in District of Columbia v. Heller.

Spooner is a strong advocate of “jury nullification.”

He argues that trial juries have the right and duty “to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.” (An Essay on the Trial by Jury, published in 1852, page 5.)

In the following passages Spooner is talking about trial juries. Although he never mentions the possibility of legislative juries, his line of reasoning is to a large extent strikingly applicable to them. By “legislative juries” I mean juries that can veto and repeal the laws the government passes, and pass laws the government does not support.[i]

Lysander Spooner (italics and bold are as in the original, block quote function not used because it changes everything quoted to italics):

“By such trials [where juries do not judge the law] the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a ‘palladium of liberty,’ or as any protection to the people against the oppression and tyranny of the government.”
(Ibid., 10).

“The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves—the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise.” (Ibid., 10)

“If the government were not thus required [by trial juries that judge the law] to submit their enactments to the judgment of “the country,” before executing them upon individuals – if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people, would be an absolute despot over the people. It would have all power in its own hands; because the power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.” (Ibid., 12.)

“The trial by jury is a trial by “the country,” in contradistinction to a trial by the government. The jurors are drawn by lot from the mass of the people, for the very purpose of having all classes of minds and feelings, that prevail among the people at large, represented in the jury.” (Brainyquote.)

“Those who deny the right of a jury to protect an individual in resisting an unjust law of the government, deny him all defence whatsoever against oppression.”
(An Essay on the Trial by Jury, 16.)

“”The trial by jury,” then, is a “trial by the country” that is, by the people as distinguished from a trial by the government.” (Ibid., 6.)

“It was anciently called “trial per pais” that is, “trial by the country.” And now, in every criminal trial, the jury are told that the accused “has, for trial, put himself upon the country; which country you (the jury) are.” The object of this trial “by the country,” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or “the country,” judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?” (Ibid., 6.)

“Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other or at least no more accurate definition of a despotism than this.” (Ibid., 6.)

“Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people. Jurors, on the other hand, are exposed to none of these temptations. They are not liable to bribery, for they are unknown to the parties until they come into the jury-box. They can rarely gain either fame, power, or money, by giving erroneous decisions. Their offices are temporary, and they know that when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments, by their successors, as they themselves have given an example for.”  (Ibid., 124.)

“The conclusion, therefore, is, that any government, that can, for a day, enforce its own laws, without appealing to the people, (or to a tribunal fairly representing the people,) for their consent, is, in theory, an absolute government, irresponsible to the people, and can perpetuate its power at pleasure.

The trial by jury is based upon a recognition of this principle, and therefore forbids the government to execute any of its laws, by punishing violators, in any case whatever, without first getting the consent of “the country,” or the people, through a jury. In this way, the people, at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.” (Ibid., 15.)

“practically speaking, there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions; in other words, to judge what laws of the government are to be obeyed, and what may be resisted and held for nought. The only tribunal known to our laws, for this purpose, is a jury. If a jury have not the right to judge between the government and those who disobey its laws, and resist its oppressions, the government is absolute, and the people, legally speaking are slaves.” (Ibid., 16-17)

“It will be asked, Of what use are the justices, if the jurors judge both of law and fact?

The answer is, that they are of use, 1. To assist and enlighten the jurors, if they can, by their advice and information; such advice and information to be received only for what they may chance to be worth in the estimation of the jurors. [Spooner goes on to offer a second reason, which I do not quote here]” (Ibid., 123.)

“[The following objection will be made:] it is a maxim of the law, that the judges respond to the question of law, and juries only to the question of fact.

The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.” (Ibid., 123.)

“To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,} from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government.

This is done to prevent the government’s constituting a jury of its own partisans or friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.

It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury …

It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, “a trial by the country.” In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And. as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. … The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, “the country,” or the people, judge of and determine their own liberties against the government, instead of the government’s judging of and determining its own powers over the people.” (Ibid., 6-7.)

Here is part of Spooner’s explanation of why electoral democracy (suffrage) is not an adequate solution for oppressive laws:

“[Suffrage] can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Be sides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. … Even if a change for the better actually comes, it comes too late, because it comes only after more or less injustice has been irreparably done.” (Ibid., 13.)

the right of suffrage can be exercised only periodically; and between the periods the legislators are wholly irresponsible.” (Ibid., 14.)

Legislative juries of the kind I propose, are well suited for putting laws on a basis of informed consent of the people through juries. If what Spooner says in the above passages is correct, it is hard to see how it does not follow that having such legislative juries is far better than leaving lawmaking to politicians.

Trial juries and legislative juries are of course quite different.

One difference is that legislative juries, as I propose them, are larger than the 12 member criminal trial juries that exist in the U.S. and certain other countries. This is necessary and desirable so that legislative juries will be a reasonably accurate cross-section/microcosm of the people, and as such a good stand-in for the people as a whole.

Another is that the legislative juries I propose decide by majority vote, unlike U.S. criminal trial juries.[ii] There is of course nothing unusual about deciding laws and various other matters by majority vote. For centuries legislatures have decided by majority vote, in Classical Athens the legislative juries, jury courts, Council and Assembly decided by majority vote, and Scottish trial juries, both criminal and civil, have for centuries decided by majority vote.

[i] Regarding my proposal for legislative juries see my articles published on April 18, 2016; Winter 1998/99; December 16, 1998; Summer 1998.

[ii] See  here and here regarding the voting requirements for U.S. trial juries.

Link

Dissident Voice, August 9, 2016

Should Citizen Juries Choose America’s President, Congress, Governors and State Legislators?
By Simon Threlkeld

Many people think choosing politicians by popular vote is an essential part of democracy. Nevertheless, there is another way to choose politicians that is in important regards far more democratic and much better. That way is for politicians to be chosen by juries of citizens drawn from the public by random selection. Such juries could number from 25 to 1,000 or more citizens, with larger juries being used for the most important offices such as President.

In Classical Athens, widely considered the birthplace of democracy, a broad range of decisions were made by juries drawn from the citizens by lottery. The Athenian juries kept a great deal of decision-making firmly in the hands of the citizens, and prevented elite rule. The jury method of democracy exists today in the form of the trial jury, and has also been applied in James Fishkin’s deliberative polls. Before considering how juries could choose politicians, a very brief review of what is wrong with popular election may be helpful.

Rule by the people needs to be exercised in an informed manner because only informed views are a good basis for a decision. Unfortunately, popular election is extremely unsuitable for ensuring informed rule because the public only learn about candidates and their platforms voluntarily in their spare time, and often pay little attention.  The empirical evidence shows that voters are poorly informed, according to, for example, social scientist Michael X. Delli Carpini and law professor Ilya Somin.

Sadly, American elections are not even a form of poorly informed rule by the people, but instead largely amount to a form of rule by the rich interests and billionaires that fund them. According to Al Gore, “American democracy has been hacked, … The United States Congress  is now incapable of passing laws without permission from the corporate lobbies and other special interests that control their campaign finances.” Bernie Sanders, Donald Trump, and FDR are among the many other prominent politicians who have noted the considerable influence rich campaign donors have on American politics. Based on a 2014 study he co-wrote, Princeton politics professor Martin Gilens says, “ordinary citizens have virtually no influence over what their government does in the United States. And economic elites and interest groups, especially those representing business, have a substantial degree of influence.”

Elections are also dominated by political parties. The President is always the nominee of one of the two main parties, as are the vast majority of Congress, state governors and state legislators. There is nothing surprising about this, as political parties have the organization, resources, name recognition and motivation needed to run effective election campaigns. However, it is rather undemocratic because 45% of Americans are political independents, and if the public could become well informed about everyone interested in public office, they might often prefer political independents, as well as party members other than the party nominee.

In elections, younger citizens, low income citizens, and various racial and ethnic minorities, are very much underrepresented among those who vote. It would be more democratic if all portions of the public had a say proportionate to their number.

The media can tilt the scales in favor of some election candidates and against others, for example by the amount of coverage they provide. The scales can also be tilted by the media choices of the public. For example, viewers of Fox News may hear quite different things about candidates than those following liberal and progressive news and commentary on facebook and twitter.

Ideally, politicians would be chosen in a way that is very democratic, well informed, and independent from moneyed interests and billionaires, with political independents being on a level playing field with party nominees, with no portion of the public being underrepresented, and with candidates not being dependent on the media to get a fair hearing. All of these things can be achieved if politicians are chosen by juries.

The President could be chosen by a presidential selection jury of perhaps 2,000 randomly sampled citizens. The jurors could be paid to work full-time for as many weeks as needed to make an informed choice. Random sampling would result in an accurate cross-section of the people. By being an accurate cross-section of the people engaged to take the time to make an informed choice, such a jury would provide the democratic ideal of informed rule by the people.

The procedures and rules for juries choosing politicians need to be well designed to ensure an informed choice, and a thoroughly fair and democratic process. A commission chosen by jury could be tasked with working out what is best, but play only an advisory role, with all final decisions about procedures and rules being made by jury. In this manner, all aspects of the way juries choose politicians could be decided in an informed and democratic way, independent from politicians, political parties and special interests.

Those wishing to run for President would provide written applications to the jury, and then appear before the jury to explain why they should be chosen and what they hope to achieve in office. The process could include all-candidate debates and Q & A sessions. The jurors could vote in rounds with the candidate getting the least votes in each round being eliminated until one candidate had the majority of the votes. That candidate would become the President.

Between rounds of voting the remaining candidates could appear before the jurors for further consideration, and jurors could break into small randomly chosen groups for deliberation.

A large number of people might apply to be President, perhaps 1,000 or more. If so, they can go first to a screening jury, which could winnow the number down to perhaps 15 candidates who would then go to the presidential selection jury for a final choice.

It is easy enough to imagine how a screening jury might winnow down hundreds, or even thousands, of applicants to the 15 who have the most support. For example, applicants could be randomly selected into groups of 40, with each group then being considered by a small screening jury of perhaps 50 citizens.  Each of these juries could, after considering the candidates, give them a letter grade from A to F, with an A meaning they would make an excellent President. Any candidate not getting an A from say at least 40% of the jurors would be eliminated. Further consideration of the remaining candidates would continue, with the juries of 50 combining into larger juries, and the candidates continuing to be eliminated by rounds of letter grade voting, and votes in which the candidate with the fewest votes is eliminated, until only 15 are left.

State governors, Congress and state legislatures could all be chosen by juries in a similar way. Each member of the House of Representatives and a state legislature could be chosen by the majority vote of a jury drawn from the member’s district. Alternatively, they could be chosen on a basis of multi-member electoral districts, perhaps three-member districts, using a PR (proportional representation) method such as STV (single transferable vote).

The President needs to be chosen by a jury large enough to be an accurate cross-section of the public, so that the jurors will be a good stand-in for the people as a whole. However, there is perhaps no need for the juries selecting the House of Representatives to be large, as even if each Representative is chosen by a jury of just 25 citizens, overall the 435 members of the House would be chosen by 10,875 jurors, large enough to be a very accurate cross-section of the American public. The same concept of course applies to state legislatures.

Selection by jury would put all those seeking a political office on a level playing field, or at least far moreso than popular election does. Because the applicants appear before the jurors directly face to face and at length, they would have no need to spend a fortune on advertising and campaign staff to reach out to the entire electorate. Candidates with not a single moneyed interest or billionaire backing them, and with no backing from a political party, would be on an equal footing with a candidate backed by big business interests, billionaires and one of the two main political parties. Candidates ignored by the media would be on a level playing field with celebrities and media favorites. Fox, MSNBC and alternative media viewers would all hear from the candidates directly and unfiltered. The jurors would have an open democratic choice of candidates uncurtailed by big money interests, political parties and the media.

Members of Congress would no longer need to spend much of their working time raising election funds. Instead, they would be able to focus on their job and serving the public.

Politicians would be out from under the thumb of moneyed interests, billionaires and party establishments.  America would have a genuinely democratic political system based on informed rule by the people.

Juries would embody the equality of citizens as each citizen would have the same chance of being randomly sampled as any other, and, unlike in a popular election, younger citizens, and all other portions of the public, would be represented in proportion to their number.

Choosing politicians by jury has huge advantages over choosing them by popular vote.

If politicians continue to be chosen by popular election, despite the problems with that approach, juries can be used to make popular elections more democratic.

Election rules need to be decided independently from politicians and political parties, because fair and democratic decision-making requires that those who decide do not have a conflict of interest. In much the same way that juries could decide the rules under which juries choose politicians, juries could also decide the rules governing popular elections. This would put the deciding of election rules on the highly democratic basis of informed rule by the people, independent from politicians, political parties, and special interests.

According to Harvard law professor Lawrence Lessig and Yale law professors Bruce Ackerman and Ian Ayres, vouchers should be used for the public funding of elections. In this approach, which will be implemented in Seattle in 2017, each citizen gets a money voucher they can donate to political candidates. Unfortunately, vouchers amount to a form of popular vote, and suffer from the same serious flaws as popular election voting.

The “vote of the vouchers” will be just as poorly informed as election voting, probably even moreso, as voters are better informed by election-day than earlier in the process when voucher money would be donated. Far from providing a level playing field for candidates, the competition for vouchers will heavily favor candidates who get a lot of media coverage and are backed by powerful interests, such as the establishments of the two main parties. It is also safe to predict that the portions of the public underrepresented among those who vote, will also be underrepresented among those who use their vouchers.

Juries are a far better basis for the public funding of elections. In much the same way that a jury could choose a politician for office, it could award public funding for a politician to run in a popular election. The winning candidate chosen by a jury could be given ample funding for the election. One or several of the top runners-up could also be funded.

Funding politicians by jury has similar advantages to choosing politicians by jury. Funds would be allocated on an informed basis. Candidates seeking funds would be on a level playing field unskewed by special interests, political parties and the media. No portion of the public would be underrepresented.

Using juries to put election rules and the public funding of elections on a very democratic basis would be helpful. However, by no means would it fix all of the serious flaws popular election has compared to choosing politicians by jury.

— end —

Copyright Simon Threlkeld 2016, all rights reserved.

Why America’s Judges Should  be Chosen by Citizen Juries
By Simon Threlkeld

Judges should not be chosen by popular vote, nor by politicians. Both approaches are undemocratic and deeply flawed, perhaps even absurd, despite the fact that the former is in widespread use at the state level, and the latter has always been used at the federal level (in the form of appointment by the President and confirmation by the Senate). A far better option is for judges to be chosen by juries drawn from the public by random selection.

In Classical Athens, often called the birthplace of democracy, a wide range of decisions were made by juries drawn from the citizens by lottery. The jury method of democracy continues today in the form of the trial jury. Before looking at how juries could choose judges, a very brief review of what is wrong with judicial elections may be helpful.

Rule by the people needs to be exercised in an informed manner, because only informed views provide a good basis for a decision.  However, popular election is extremely unsuitable for ensuring that judges are chosen in an informed way. The public only learn about judicial candidates voluntarily in their spare time, and generally pay little attention. As law professors  Erwin Chemerinsky and James Sample say, “Voters [in judicial elections] rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections.”

Justice Willett of the elected Texas Supreme Court says: “My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.”

In addition to being an abject failure at providing informed rule by the people, judicial elections are largely a form of oligarchy or plutocracy. As Adam Skags of the Brennan Center for Justice points out, “No lawyer, no matter how talented, has a legitimate shot at winning a seat on the bench if they can’t perform well in the ‘wealth primary’ — so long before judges are on the ballot for the general public to vote, there’s a preliminary vetting process in which only the donors get to vote. This clearly is likely to skew the bench toward judges likely to be more sympathetic to the donor’s worldviews and priorities.”

According to Justice at Stake, state Supreme Court elections are “politicized and costly contests, dominated by special interests seeking to shape courts to their liking.” In the 2013-14 election cycle, the candidate who raised the most money won contested state Supreme Court elections over 90% of the time.

According to former U.S. Supreme Court Justice Sandra Day O’Connor in 2010, “the single greatest threat to judicial independence now” is “the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial election campaigns.” According to a 2002 study on the Ohio Supreme Court, the “worst method [of choosing judges] is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants and special interest groups, and retain their offices only by continuing to raise such funds.”

The American Constitution Society found in a 2013 study that the more campaign contributions judges receive from business interests, the more likely they are to rule in favor of businesses appearing before them. Also disturbing is the role of political parties. Among the groups pouring money into state judicial elections is the Republican State Leadership Committee’s Judicial Fairness Initiative, which is “directed toward electing to the bench conservatives who can safeguard GOP legislative victories.” The courts are supposed to be a check and balance on politicians, not their lapdogs.

Cheri Beasley of the elected North Carolina Supreme Court said her consultants told her she had to raise 1.2 to 2 million dollars in campaign funds to be competitive. To do so she filled much of her regular business hours with “one fundraising call after another.” However, as she pointed out, “We want judges that are focusing on doing their jobs and not focusing on being politicians.”

Another problem is that in elections, including judicial elections, younger citizens, low income citizens, and various racial and ethnic minorities, are very much underrepresented among those who vote. It would be much more democratic if all portions of the public had a say in choosing judges proportionate to their number.

Judicial selection juries

Instead of using popular vote, we need a genuinely democratic way to choose judges. One that is well informed, independent from special interests and political parties, and in which no portion of the public is underrepresented. The only way to achieve all of these things is for judges to be chosen by randomly sampled juries of citizens.

Such judicial selection juries could number from 15 citizens to several hundred citizens, with larger juries for the higher rungs of the judiciary. Jurors could be paid to work full-time for as many weeks as needed to choose one or more judges on an informed basis. Random selection would mean the jurors would be statistically representative of the public. By being a representative cross-section of the public engaged to take the time to make an informed decision, such juries would provide the democratic ideal of informed rule by the people.

Those interested in seeking judicial office could provide written applications to a jury, and then appear before the jurors to explain why they are a good choice for the office, and to answer any questions the jurors may have. Each jury could either choose one judge by majority vote, or could choose several judges, perhaps two or three, using a PR (proportional representation) method such as STV (single transferable vote).

If majority vote is used, there could be successive rounds of voting with the candidate getting the least votes in each round being eliminated until one candidate gets the majority of the vote. The remaining candidates could make further appearances before the jury between rounds of voting.

The procedures and arrangements for judicial selection juries need to be well designed to ensure an informed choice, and a fair democratic process. A commission chosen by jury could be tasked with working out the best possible design, but play only an advisory role, with all final decisions about the design being made by jury. In this way, the procedures and arrangements for judicial selection juries could be decided in a democratic and informed way, independently from politicians, political parties and special interests.

Judicial selection juries would put all qualified individuals interested in applying for a judicial office on a level playing field. As applicants would appear directly before the jury face to face and at length, there would be no need for costly television ads and campaign staff reaching out to the entire public, and therefore no wealth primary. Candidates with no special interest backers and no party affiliation, would be on an equal footing with those favored by big business interests, trade unions and political party establishments. The jurors would have an open democratic choice of all those wishing to apply, not a choice restricted by moneyed interests and political parties. Judges would be able to focus on their jobs, with no need to spend their days on election fundraising.

Random sampling would ensure that no portion of the public was underrepresented among the jurors. As hundreds of juries served over time, the total number of randomly sampled jurors would climb into the thousands. A random sample of thousands is an extremely accurate cross-section of the public.

Judicial selection juries would embody the equality of citizens because each citizen has the same chance of being randomly sampled as any other, and because younger citizens, ethnic minorities, and all other portions of the public, would be represented in proportion to their number.

Judicial selection juries put the selection of judges on the excellent and highly democratic basis of informed rule by the people, or of informed rule by a very representative cross-section of the people, independent from moneyed interests, billionaires, political parties and politicians, with no wealth primary, and with candidates being on a level playing field.

The people are the rulers, not politicians

The problem with choosing judges by popular election is not that it puts the choice in the hands of the people, but rather that it fails to do so, or does so very badly and inadequately. Fortunately, judicial selection juries provide a remarkably good and informed way for the people to choose judges.

In a democracy the people are the rulers, and are the highest and most legitimate authority, not politicians and political parties, nor the rich interests that fund their electoral victories. For this reason, the judiciary should be chosen by the people, not by politicians. All that is needed is a good informed way for the people to choose judges, something judicial selection juries can provide.

It would of course be absurdly undemocratic for the House of Representatives to be chosen by the President and confirmed by the Senate. It is just as undemocratic for the judiciary to be chosen that way. There is no reason why the people’s right to rule should be any more denied in choosing the judiciary than in choosing the House.

The third branch of government, the judiciary, is supposed to be independent from and co-equal to the other two. In order to fully respect this idea, judges need to be chosen independently from the other two branches of government.

Women, as equal citizens and half the population, should have an equal say in choosing the judiciary, something they are very much denied when politicians choose judges. 44 of the 50 state governors are men, the president has, so far, always been a man, and 80% of senators are men.

Younger citizens, the 99%, and the 45% of Americans who are political independents, are also very much underrepresented among politicians. As equal citizens, as opposed to second class citizens, all portions of the public should have a say proportionate to their number in choosing the judiciary, including women, younger citizens, each percentile of the 99%, and so on. Judicial selection juries would provide this.

The U.S. political system is to a large extent an oligarchy dominated by economic elites, as indicated for example in the 2014 study by professors Martin Gilens and Benjamin Page. The choosing of judges by politicians needs to end in order to have a firewall between the judiciary and any capture of the other two branches of government by economic elites.

In his 2015 book The Case Against the Supreme Court, Erwin Chemerinsky shows that “the Supreme Court usually sides with big business and government power and fails to protect people’s rights. Now, and throughout American history, the Court has been far more likely to rule in favor of corporations than workers or consumers; it has been far more likely to uphold government abuses of power than to stop them.”[i]  Perhaps if SCOTUS had always been chosen by judicial selection juries representative of the people, it would not have been skewed in favor of big business and government.

Politicians should not be able to fill the courts with their political supporters and ideological fellow travelers, pro big business judges, and pro-government judges, as if the courts were their private property existing to serve their agendas. The only way to stop politicians from doing these things is to end the practice of politicians choosing judges.

Judicial selection juries are a far better and far more democratic way to choose judges than either popular election or appointment by politicians. This is how judges should be chosen, at both the state and federal level.

—— end ——

[i] Chemerinsky, Erwin. 2015. The Case against the Supreme Court. New York: Penguin, page 6.

Copyright Simon Threlkeld 2016, all rights reserved.

Submission to House of Commons Electoral Reform Committee

July 26, 2016
Simon Threlkeld, Toronto

Why Citizen Juries should decide Canada’s Voting Method and Election Rules

 

Politicians Should Stop Giving Themselves the Final Say about the Voting Method and Election Rules

1. Politicians should not decide the rules under which they are elected, because fair and democratic decision-making requires that those who decide do not have a conflict of interest. For this clear and simple reason, election rules need to be decided independently from politicians, and therefore also independently from Parliament.

2. Politicians and political parties have a strong and obvious conflict of interest regarding the choice of election rules (including those setting out the voting system), specifically an interest in rules that favor themselves and their own party, and disadvantage their political opponents.

3. Parliament should therefore recuse itself from deciding election rules, now and permanently, and play only an advisory role regarding them. The Committee should recommend this.

4. Were there no good democratic alternative to politicians deciding the election rules, then perhaps we would be stuck with that very flawed approach. However, there is an excellent and highly democratic way to decide the rules, namely by using citizen juries, or as they can also be called, minipublics or citizens’ assemblies.

A Referendum is an Undemocratic and Inappropriate Way to Decide the Voting System

5. Some say that the voting method should be decided by a referendum vote. This idea needs to be rejected, because far from being the democratic panacea some seem to consider it, a referendum is a very undemocratic and flawed way to decide election rules, including those for the voting system.

6. Rule by the people needs to be well-informed, because only informed views provide a good basis for a decision.

7. A referendum is highly unsuitable for ensuring an informed decision about Canada’s electoral system. The public would only learn about the option(s) on the ballot voluntarily in their spare time, and most people are not especially interested in learning about electoral systems. In B.C.’s 2005 referendum on a proposed new electoral system, shortly before voting day 66% of those surveyed by Ipsos-Reid said they knew “nothing” or “very little” about the proposal on the ballot. In another survey, over half of those who voted against the proposal said they did so because they did not feel “knowledgeable.”

8. A referendum could deny the public an open choice by restricting the options on the ballot to the one option Parliament decides on. This would be undemocratic because it might well be that most Canadians would prefer one of the electoral systems not on the ballot, or would were they to become well informed about it.

9. Theoretically, a referendum ballot could offer voters an open choice of a full range of electoral systems. However, this would be absurd as there is no chance the public would become informed about all of them, or even about several of them.

10. Running an effective national referendum campaign would cost millions for advertising and campaign staff. This could tilt the scales in favor of those who have the most money, which is undemocratic.

11. Because younger citizens are underrepresented  among those who vote, they would be underrepresented in a referendum.

Citizen Juries should have the Final Say about the Voting Method and Election Rules

12. In addition to being decided independently from politicians and political parties, the voting method (and election rules in general) should be decided in a way that is genuinely and thoroughly democratic, with a well informed choice being made from a full range of options, and with neither younger Canadians nor any other portion of the public being underrepresented. The only way to achieve all of these highly desirable objectives is to use a jury drawn from Canadians by random selection.

13. In Classical Athens, widely considered the birthplace of democracy, much of the decision-making was done by juries drawn from the citizens by lottery. Athenian juries included the City Council (Boule), jury courts (dikasteria) and legislative juries (nomothetai). The jury method of democracy exists today in the form of the trial jury and coroner’s jury, and has been applied in the form of James Fishkin’s deliberative polls, and the B.C. and Ontario Citizens’ Assemblies on Electoral Reform.

14. An electoral reform jury can be large enough to be a statistically accurate sample of Canadians, numbering perhaps 400 to 1,500 citizens, possibly with two to four jurors from each of Canada’s 338 ridings. The jurors can be paid to work full-time for as many weeks or months as needed to reach an informed decision. By being a very representative cross-section of the people engaged to take the time to make an informed choice, such a jury would provide the democratic ideal of informed rule by the people.

15. All of the proposed voting methods considered by the electoral reform jury can be submitted in writing by the Committee, political parties and public interest groups, before the jury starts its work. The parties, Committee members, public interest groups and others, can appear before the jury to defend the voting method they support, and explain why they prefer it to the rest.

16. When ready, the jury would decide by majority vote what Canada’s voting method will be.

17. The rules for electoral reform juries need to be well designed to ensure an informed decision, and a fair democratic process. They could be worked out by a commission chosen by jury, but with the commission only playing an advisory role, and all final decisions about the rules for electoral reform juries being made by electoral reform juries. Before deciding, such juries could also hear from parliamentarians and others. In this way the rules governing electoral reform juries would themselves be made on the basis of informed rule by the people, independent from politicians and political parties.

18. Some might suggest that the jury’s choice of electoral system be subject to approval in a referendum. However, this makes no sense because of the problems with referendums outlined above, including unsuitability for informed decision-making.

19. After nearly 150 years since Confederation, it is time that Canada’s politicians graciously stand aside and let the people choose the voting method.  An electoral reform jury is the best way to do this, because it would base the choice on informed rule by the people, or informed rule by a highly representative portion of the people, and would be independent from politicians and political parties.

20. Informed rule by the people (a.k.a. informed consent of the governed), is the best and highest democratic mandate a voting method can have. There is no reason to settle for anything less, and no reason to needlessly delegitimize the voting method by having it chosen by those who have a conflict of interest (such as politicians).

21. The Committee’s purpose is to advance Canadian democracy as much as it can, especially by doing everything it can to ensure the voting method is as fully legitimate, appropriate, fair and democratic as it can be. A voting method decided by those with a conflict of interest, and without the informed consent of the people, would needlessly fail to achieve this purpose, and should therefore be rejected

22. Electoral reform juries should become a cornerstone of Canadian democracy. Such a jury could be automatically convened after each election, perhaps six months after, to consider whether any changes to Canada’s election rules are called for, and if so, to refer specific questions to one or more other electoral reform juries for a decision. The only way the party(ies) in power should be able to change the election rules is to present their proposal to an electoral reform jury for a decision.

23. It appears unlikely Parliament will reach an all-party consensus on what Canada’s voting method should be. It is democratic, fair and best that the decision be removed from conflict of interest and the fray of party politics, by being referred to an electoral reform jury.

24. The Committee’s mandate says that it “be directed to study and advise on additional methods for obtaining the views of Canadians”. An electoral reform jury should be one of the additional methods, so that the informed views of the Canadian public, as expressed by such a jury, can be discovered and known. Such a jury could be limited to an advisory role, however, for the reasons given, it is better that it make the decision, or, at the least, that its recommendation be followed.

25. For the above reasons, the Committee should recommend that: a.) The voting system be decided by an electoral reform jury so that the decision will be based on the informed consent of the governed, free from the conflict of interest politicians and parties have; b.) that an electoral reform jury be convened this year (or as soon as possible) to decide the voting method in time for the next election; and c.) that from now on, all changes to Canada’s election rules be decided by electoral reform juries, with this becoming a permanent part Canadian democracy (along the lines briefly indicated above).  This is what is best, most democratic, most fair and most legitimate for deciding Canada’s voting method and election rules.

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Simon Threlkeld writes about democracy (including this recent article about how Canada’s electoral system should be decided), has a philosophy MA from the University of Toronto, a law degree from Osgoode Hall Law School, and has practiced law.

Copyright Simon Threlkeld 2016, all rights reserved.