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Between formal and substantive legitimacy

A comparison of two electoral systems ARVIND SIVARAMAKRISHNAN

Vol. 49, Issue No. 19, 10 May, 2014

Arvind Sivaramakrishnan is with the editorial team of The Hindu newspaper and also teaches at the Asian College of Journalism, Chennai.

The simple majority or the First Past the Post system extant in India suffers from a number of flaws, even if some of them have been mitigated by the nature of political contestation and the social upsurge in the country. Primarily these flaws have to do with lack of substantive “representativeness”, possible issues with accountability among others. A proportional representation system with the provision of a single transferable vote could be a better alternative to the FPTP system.

There is no doubting the legitimacy of elected assemblies in India, from panchayats to the Rajya Sabha. Yet the First Past the Post electoral system (FPTP, also known as the simple majority system), which is used in all elections except those to the Rajya Sabha and the presidency, gives rise to several questions. One is about the composition of the assemblies. Another is about the representative character of the elected assemblies, and which could potentially weaken their substantive legitimacy. A third is about the relation between voters and their elected representatives. I shall explore the first two here, and will touch upon the third. With examples from a range of countries besides India, I shall try to show that a proportional system based on the single transferable vote offers considerable advantages over the FPTP system, which for its part creates several problems, as follows.

Disparity between vote share and seat share

There is no direct relation between a party’s vote-share and the number of seats it wins. Assemblies elected under FPTP do not reflect the spread or range of voter support across all parties, and significant third or even fourth parties are severely underrepresented.

One example is that of the 15th Lok Sabha, which has just concluded its term. Figure 1 shows its composition by party after the 2009 election. Pre-election alliances whereby parties agree not to field candidates in particular constituencies, so that an alliance vote is not split, mean that the figures are indicative rather than precise.

Table 1 Indian General Election 2009: 543 seats in the Lok Sabha; 272 needed for a majority ISSN (Online) - 2349-8846

Congress BJP Third Front Seats 262 159 79 Seat Share 48% 29% 15% Vote Share 37.22% 24.63% 21.15%

Under- or over- +60 representation in seats +25 -36 relative to vote-share

(Adapted from Wikipedia)

Graphically, the position looks like this:

Figure 1: Under - or over-representation in number of Lok Sabha seats 2009

In proportion to its share of the vote, the third party–in this case the Third Front–is substantially underrepresented. Had seats been allocated according to vote-share, the composition of the Lok Sabha would have been significantly different:

Figure 2: Lok Sabha seats 2009 under a hypothetical proportional system

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Congress would have had 202 seats, the BJP 134, and the Third Front 115.

The disparities caused by FPTP are even more obvious in respect of the 2012 assembly elections in Uttar Pradesh. I use UP as an example to show the disproportionality between vote-share and seat-share in the SM system. This disproportionality is an inherent feature of the SM system. Caution would, however, be needed in drawing any blanket inferences about the scale or extent of it in, say, all elections in India, because pre-poll seat-sharing arrangements or similar deals are not as common in UP as they are, for example, in Tamil Nadu. In the latter case, a claim could be made that such deals facilitate some representation for social groups which might otherwise go unrepresented. I address some of those issues in passages below on how a proportional system would provide a more accurate reflection of the range of voter preferences than the FPTP system does.

As it happened, in the 2012 UP assembly elections the Samajwadi Party won heavily, taking 226 seats in the 403-seat assembly; its nearest rival, the Bahujan Samajwadi Party, won 80 seats, just under 40% of the winners’ tally. The distribution of seats was as follows:

Table 2: The 2012 Uttar Pradesh State Election ISSN (Online) - 2349-8846

Figure 3: UP Assembly results 2012

Under a proportional system, the SP would still have won, but only just, as the vote-shares show.

Table 3: UP 2012 Vote-shares by party ISSN (Online) - 2349-8846

Secondly, the assembly would have looked strikingly different from the one actually elected:

Figure 4: UP assembly 2012 under a hypothetical proportional system

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Table 4: Hypothetical seat-shares in the U.P. assembly under PR in 2012 ISSN (Online) - 2349-8846

The SP would have been 109 seats down on its actual performance and that would have left it 85 seats short of an absolute majority, and the BSP would have done much better than it did, winning 104 seats.

Swing in Voter Support

In the 2009 Indian general election, the Congress vote-share rose by 3.96 percentage points, but the party gained 44 more Lok Sabha seats to finish with 262, when it had won 218 in 2004; that amounted to 17% more seats. Similarly, the BJP’s loss of 4.88 percentage points cost it 22 seats, or 12% of its 2004 total.

Parties can win huge majorities on well under 50% of the vote.

In the U.K. in 1979, the Conservative Party won a majority of 43 seats on a vote-share of just under 44%, but raised this to a 144-seat majority in 1983, even though the party’s vote- share was down to 42.4% (Boothroyd nd).

The results of the 1997 and 2001 British general elections also reveal a striking disparity between vote-share and seat-share. In 1997, Labour won by a huge margin, taking 418 seats, or 63% of the 659 in the Commons, on a vote-share of 43%; the Conservatives got a vote-share of just under 31% but won only 165 seats, or 25% of the Commons; the overall Labour majority was 177. In 2001, Labour won a 165-seat majority on a vote-share of 40.7%, but as the turnout was down from 71.5 to 59.4%, they won with the support of just under a quarter of the total electorate, or only a slightly larger share of the total electorate than the Conservatives had got in their crushing 1997 defeat–namely about 22%.

Winners with Small Percentages Of The Vote

In the 2012 UP assembly elections, only 16 of the 403 winning candidates got 50% or more of the vote; the majority of the winners had less than 40%, and 117 winners had less than 30%. This is also a feature of recent British general elections; in 2005, only two candidates gained over 40% of the vote in their respective constituencies. Another won a seat with the votes of 18.36% of the constituency electorate. In the 2010 election, 433 MPs, or two thirds of the Commons, did not get 50% of the turnout vote, and the current House has the lowest share of majority winners in any British parliament since at least the 1920s; in fact a record number, 111 MPs, won their seats on a vote-share of under 40% (Electoral Reform Society 2010).

Unrepresented voters

In effect, substantial proportions of voters in most constituencies go unrepresented. Even going by turnout figures alone, it is not unusual for 60% of those who voted to be unrepresented, because only one candidate is elected to represent the constituency.

‘Wasted’ votes ISSN (Online) - 2349-8846

The votes cast for all except the winner are wasted in that they had no effect on the result, but in fact the figure for such ineffectual votes is even larger, because a plurality of only one vote is needed to win a seat under the FPTP system. Any more votes cast for the winner are superfluous; one estimate for the 2010 British general election is that 71.1% of votes, or 21.1 million of the 29.7 million cast, had no effect on the composition of the House of Commons (Rallings and Thrasher 2010: 2).

Tactical voting

This is quite common in FPTP systems, with voters opting not for their preferred candidate but for an alternative so as to keep a third candidate out. This often happens in seats which are “safe” for particular candidates and therefore votes for all others except a likely runner- up are useless.

Targeted campaigning

This is widely used under the FPTP system, because small swings can decide large proportions of seats. In some countries, “swing” voters form only about 5% of the electorate. In India, as candidates sometimes admit privately, campaigns are often aimed at particular castes or communities. Post-election policies may then favour the swing voters who may have decided the outcome.

Targeted campaigns can be effective; in the UK in 1992, the Liberal Democrats won 20 seats on a vote-share of 17.8%, but in 1997 a campaign targeted on the seats where they had the best chance won them 46 seats on a lower vote-share, namely 16.8% (Tall 2012).

The representative becomes the sole gatekeeper

The fact that FPTP provides only one representative per constituency means the winner becomes the sole gatekeeper, that is, the only person constituents can approach with their concerns. If the elected representative belongs to a party which opposes whatever the constituent seeks (or is hostile to the constituent for any reason), then the voter has nobody else to approach. In addition, voters who support a party but do not like the party’s candidate get no other option.

Parties tend to choose “safe” candidates.

This can work against women and minority candidates. Furthermore, able local party members could be excluded from candidature because they belong to the “wrong” social group for the constituency concerned (Beetham 2007; Electoral Reform Society 2008).

Advantages of the FPTP System

The FPTP system is simple, and with only one representative per constituency it can create a direct link between the constituency and the representative. ISSN (Online) - 2349-8846

The PR-Single Transferable Vote (STV) Alternative

The Proportional Representation system (based on the single transferable vote model) involves multi-member constituencies based on the population in each constituency. Voters rank candidates in order of preference, and the percentage of the vote needed to win a seat is either stipulated under electoral law or calculated by a formula, one version of which is:

Q = Total valid ballot papers received

Number of seats +1

(Electoral Reform Society nd)

Q is the minimum quota a candidate must achieve in order to be elected, and every candidate who reaches the quota on first preferences wins a seat; the quota can be under 10% depending on the turnout. If not enough candidates reach the quota to fill the available seats, the count continues with second preferences.

If a candidate gets more votes than the quota on first preferences, their second preference votes can be distributed appropriately to the other candidates, in a “top-up” procedure; a weighting can be given to these distributed votes. Counting stops when all the seats are filled (ibid.). The specific electoral law involved decides the number of seats available; for example, the South-East England constituency of the 766-seat European Parliament has 10 members.

The Advantages of STV

Wider choice for voters:

Parties can field more than one candidate, and in open-list systems, like that used for the European Parliament, independents can also stand. STV gives voters more options than any other electoral system, and parties also have an incentive to present a range of candidates in order to maximise the number of second and third preferences. This reduces the temptation to field “safe” candidates, and also makes negative or hate-campaigning a risk; candidates cannot risk alienating their own supporters with attacks on other candidates, because their own supporters may vote for the others as second or third preferences. This could also reduce the need to target a campaign at any one group in a constituency. Furthermore, a personally unpopular candidate is unlikely to obtain second-, or lower- preference votes, and there is no need for tactical voting to keep a candidate out, because the range of successful candidates is by definition wider than it is under the FPTP system.

Fixed constituency boundaries

There is no need to redraw constituency boundaries so as to maintain roughly the same number of voters in each one. Instead, the number of representatives per constituency can ISSN (Online) - 2349-8846

be varied according to demographic changes, and the risk of gerrymandering is potentially eliminated.

Assemblies represent the range of voter preferences

The elected assembly gives a much more accurate representation of the range of support among voters, and in particular gives significant third and fourth parties due weight. In India, it is already clear that even under the existing FPTP system seats are won by a wide range of parties, particularly in elections to state assemblies, and that supporters of such parties do not go totally unrepresented even if the parties themselves are often small and local in character, or draw most of their electoral support from particular social groups. The advantage of a PR system, however, is that it allocates seats by vote-share, and would therefore give such parties a share of seats commensurate with their support among those who turn out to vote.

A possible or even likely problem for a PR system is that post-poll negotiations might well replace the current, already complicated and sometimes fragile, pre-poll alliances and seat- sharing agreements. Under the FPTP system as it stands, pre-poll agreements may go some way towards creating stable or at least sustainable governments after elections; PR might simply replace one period of negotiations with another and could even delay the formation of governments. It hardly needs to be stated that governments at national and state level have for some decades been formed by coalitions, with several parties often involved, and that in view of the diversity of the Indian electorate the party system itself is fragmented though not chaotic.

This could have further resonances, particularly in view of the role of identity politics in different regions of India. PR by itself may not be a solution to issues arising thence, because those may well result from wider cultural issues and structural or other inequalities in the form of access to resources, to public services such as health and education, and the like. Certainly PR is unlikely to eliminate identity-based politics altogether, because that form of politics continues to be a powerful factor in some regions of India. Identity-based politics is also a major feature of politics in Nepal, where the introduction of a hybrid PR- FPTP system, possibly with a view to countering the effects of identity politics in a very stratified society where caste divisions are clearly shown in party politics, has not ended instability and deadlocks despite considerable improvements in the electoral process itself (International Crisis Group 2012; Carter Center 2013). This remains the case even though hybrid systems are not directly comparable either to FPTP or to PR systems on their own.

Where PR could, however, constitute an improvement on the present FPTP system in India is that pre-poll seat-sharing agreements reduce the range of options available to voters at the ballot box; at present, the relevant decisions are taken not by the voters but by the party leaderships concerned, whether at national or state level. A proportional system would put some of the relevant power of decision back in the hands of voters, and could at least in ISSN (Online) - 2349-8846

theory end such pre-poll narrowing of the range of candidates available.

Far fewer “wasted” votes

Under STV, far fewer votes are cast for losing candidates or unnecessarily cast for the winner, and most voters can identify a representative whom they personally helped to elect. This can enhance the voters’ and the representatives’ sense of the link between them.

Choice of representatives after an election

After an election, voters have a choice of representatives to approach, and can compare the representatives’ responses and level of commitment to the constituency. This can provide a more nuanced link between voters and their representatives than FPTP does, and a possible advantage of STV for India is that successful candidates will generally not know whose votes have got them in; they may have needed second- and third- preference votes in order to reach the quota.

The availability of comparisons between different representatives in one constituency has considerable potential implications for India, because the Member of Parliament Local Area Development Scheme (MPLADS) may, irrespective of the reasons for its introduction in December 1993, already serve as a way of maintaining the link between an MP and their constituency between elections. Although the Supreme Court confirmed the Scheme’s constitutional validity in 2010, in the respective cases of Bhim Singh and Bondu Ramaswamy, the Scheme as a whole has been severely criticised for a range of reasons. One is that it blurs the distinction between the legislature and the executive and also undermines elected local bodies (K C Sivaramakrishnan 2010). Another is that it allocates funds – now Rs. 50 million a year - to each MP but with insufficient monitoring or oversight of how the money is used. A third criticism is that the use of the money is arbitrary, erratic, and mainly though not exclusively motivated by party-political considerations such as reelection campaigns (Economic and Political Weekly 2009; Pal and Das 2010). In addition, MPLADS funds are far more often spent on visible physical assets such as roads, bridges, walls, and even places of worship rather than on, for example, ensuring that schools are properly staffed (Ramachandran 2005). MPLADS has also been defended, if indirectly, on the grounds that it is now more tightly monitored than it used to be (Kumar 2010)).

As each Lok Sabha constituency still elects only one MP, however, it remains open to MPs to favour, and possibly ensure, disbursement only to supporters or other groups they favour or whose votes they may particularly need. Again, at least in theory, multimember constituencies elected under PR could well increase the total available to each constituency simply because the constituency would have more MPs, and could well ensure that the money could be put to a much wider range of uses than it has generally been so far.

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Parties need to campaign everywhere, not just in marginal seats, and representatives cannot be complacent after being elected; they need to pay closer attention to their constituencies between elections. Politicians do not always like this; in the Irish Republic, where STV is used for all assemblies, they have twice tried to scrap STV, but lost in the ensuing referendum (Electoral Reform Society 2008).

A possible end to reserved constituencies

A PR system using STV could end the need for reserved constituencies, as it would enable the election of assemblies which represent many more sections of society than they do at present; it could, in addition, widen the social range of those who vote. As to quotas, which form the principle underlying reserved constituencies, various forms of them are used in over 100 countries to ensure political representation for disadvantaged or otherwise underrepresented groups. India has one of the most extensive electoral quota systems in the world, but voters in reserved constituencies do not necessarily feel better represented, because their choice of candidates is limited to the group concerned, and because the candidates themselves are as bounden to their respective parties as any other candidates. Furthermore, even in reserved constituencies the majority of the voters do not belong to Scheduled Castes (Jensenius 2012: 374 and 380-81, and 2014 (forthcoming): 3-5).

STV is not difficult for voters to understand

On the evidence, voters grasp STV quickly, and do not generally engage in “donkey voting”, where they enter only one or two preferences and choose the rest at random. In the 2012 Scottish local government elections, for which STV had first been used in 2007, over 65% of voters in constituencies with 11 or more candidates used three or more preferences (Baston 2007; Curtice 2012: 13-14).

The background to PR in India

In India, proportional systems have been discussed briefly; in 1928 the Motilal Nehru Committee strongly favoured a PR system (Jensenius 2014 (forthcoming): 15-16). The colonial government rejected PR with the racist excuse that it was too complicated for Indians; PR was also rejected in 1949, on the grounds that it was “too complicated for India” (ibid.: 26). No evidence seems to have been put forward on either occasion. I have tried to show here that a proportional electoral system could provide a solution to many of the problems the FPTP system generates.

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