University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship 2000 Madison's Hope: Virtue, Self-Interest, and the Design of Electoral Systems James A. Gardner University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Constitutional Law Commons, Election Law Commons, and the Legal History Commons Recommended Citation James A. Gardner, Madison's Hope: Virtue, Self-Interest, and the Design of Electoral Systems, 86 Iowa L. Rev. 87 (2000). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/207 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. MADISON'S HOPE: VIRTUE, SELF- INTEREST, AND THE DESIGN OF ELECTORAL SYSTEMS James A. Gardnd INTRODUCTION ............................................................................................ 89 I. THE ATrACK ON WINNER-TAKE-ALL ELECTORAL SSTMuS .................. 95 A. WM R-TAKE-ALL ELECTORAL SYS IS.................................... 95 B. THE PR ALTERNATVE .................................................................. 97 C. DFMANDS FOR PROPORTIONALITy .................................................. 98 II. PLURALISM AND PROPORTIONALrY ...................................................... 104 A. INTERESTPLURAUSM ...................................................... .......... 105 B. THE PLURAJISTIC PREFERENCEFOR PROPORTIO I'y ..................... 107 III. WINNER-TAKE-ALL AND THE PoLrIcs OF VIRTUE ................................. 110 A. STAADARDDFFESFS OF WINANER-TAKE-ALL ...................................... 110 B. VIRTUE AID THE BASIS OF IMIER-TAKE-ALL ................................... 114 1. The Basic Inheritance ........................................................... 115 a. The Objectivity of the Common Good .................................... 115 b. Politics as a Politics of Virtue ............................................... 120 2. The Epistemological Problem ............................................... 126 a. Republicanism: Wise and Virtuous Representatives............... 126 b. Populism:A Wise and Virtuous People................................. 130 c. Justificationsfor Majority Rule ............................................ 137 3. Winner-Take-All: Electoral System for a Politics of Virtue... 142 IV. THE IMPOSSiBILl OF MADISON'S HOPE .............................................. 148 A. M ADISON'S H OPE............................................................................ 150 B. CHOOSE WEM usT .......................................................................... 154 Professor of Law, Western New England College School of Law. BA. 1980, Yale Unicrsit%;J.D. 1984, University of Chicago. My thanks to Dick Cole, Rick Hasen, Rick Pildes. and the participants in faculty colloquia at Florida State University College of Law and Western New England College School of Law for valuable comments and suggestions on earlier drafts. Thanks also to Dean Donald Dunn for providing financial support, and to Pat Newcombe of the Western New England College Law Library and Anne Blanford for research assistance. 88 86 IOWA LAWREVIEW [2000] 1. Electoral Systems and the Politics of Virtue ......................... 155 a. Republicanism.................................................................... 155 b. Populism............................................................................ 160 2. Electoral Systems and the Politics of Self-Interest ................ 162 3. Sum m ary ................................................................................ 166 V. CONCLUSIONS: POLITICAL INSTITUTIONS IN THE 21sT CENTURY ......... 167 MADISON'S HOPE INTRODUCTION In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. In the most common kind of winner-take-all system, multimember government bodies are elected by dividing the relevant jurisdiction into as many election districts as there are seats to be filled. Candidates for office compete separately in each district and, typically, the candidate with the highest vote total in each district is elected. In the last decade, legal theorists have condemned this method of election as "simple-minded,"' "crude,"2 and "illegitimate."' The winner-take-all system is said to "waste votes,"' lead to "majority monopolization" of political power,5 and cause the "underrepresentation" and consequent "social and economic subordination"' of political minorities. According to its critics, the winner-take-all electoral system is worse than merely "unfair."7 The system grievously injures politics itself by undermining the electoral accountability of government officials, depressing levels of political competition, and discouraging voter mobilization! The winner-take-all system, according to its critics, thus subverts the very popular sovereignty it purports to serve. Legal theorists are hardly alone in their condemnation of the winner- take-all electoral system. The great majority of political scientists seem to agree that it is a peculiarly bad system of democratic self-governance. Political scientists have argued, for example, that the winner-take-all electoral system unfairly denies representation to those who vote for losing candidates;9 causes politicians to adopt shifting and ill-defined positions on 1. LANi GUINIER, THE TYRANNY OF THE MAJORITY 101 (1994) (hereinafter GuI.E.R, TYRANNY]. 2. Pamela S. Karlan, Undoing the Right Thing. Single,.nnbtr Offices and the Voting Rigts Act, 77 VA. L REv. 1, 11 (1991) [hereinafter Karlan, Undoing]. 3. GuiiER, TYRANNY, supranote 1, at 79. 4. l& at 121, 134-35. 5. Karlan, Undoing,supra note 2, at 9. 6. Samuel Issacharoff, Polaied Voting and the Political Process: The Transfonraion of Vling RightsJurisprudene 90 MICH. L REV. 1833, 1837, 1849 (1992) [hereinafter Issacharoff, Poamted Voting]. 7. Lani Guinier, No Two Seats: The Elusive Questfor PoliticalEqualiy, 77 VA. L REv. 1413, 1429 (1991). 8. GUINIER, TIRANNY, supra note 1, at 79. 9. E.g., DOUGLAS J. AMY, REAL CHOIcEs/NEW VOICEs: THE CASE FOR PROPORTIONAL REPRESENTATION ELEcTIONS IN THE UNITED STATES ch. 1 (1993); STLvEJ. BRASIS & PETER C. FISHBURN, APPROVAL VOTING 1-3 (1983); ENID LAKLEmAN, POWER TO ELEcT: THE CASE FOR PROPORTIONAL REPRESENTATION 22, 166 (1982); ROrIERT A. NMIAND. CO I AELATIVE ELECTORALSsTEiS 11, 21 (1982). Seegeneral, GARY W. COX, MAKING VOTEs COUNT: SrnATECIc COORDINATION IN THE WORLD'S ELEcTORAI. SNhTEMS (1997). 86 IOWA LAWREVIEW [2000] important political issues; ° installs a permanent monopoly of the two major political parties;" results in a racially, ethnically, and ideologically homogeneous legislature;12 and ultimately raises unnecessarily the possibility of majoritarian factional tyranny."3 As one recent critic has summed things up, "An electoral system in a democracy is required to perform two functions-first, to ensure that the majority rules, and second to ensure that all significant minorities are represented. Plurality and majoritarian [winner- take-all] systems of election fail to achieve either of these two aims." 4 The winner-take-all system, then, cannot accomplish the only goals an electoral system is ever called upon to accomplish; it is, on this view, quite literally good for nothing. In spite of these criticisms, it seems clear that there is virtually no chance that Americans will soon abandon the winner-take-all system in favor of its chief rival and the overwhelming favorite of its critics, proportional representation (PR). Frequently hailed as the remedy for many of the American political system's ills,'5 PR electoral systems aim to assure that candidates for multimember governmental bodies or, in some versions, the political parties fielding candidates, win seats in direct proportion to their support among the electorate. '6 Despite a century-and-a-half of advocacy by political theorists in favor of PR, 7 the winner-take-all electoral system enjoys an almost complete monopoly among American jurisdictions. It is presently used to elect Congress," every state legislature, and virtually every local 10. AMIY, supra note 9, ch. 3. 11. Id. ch. 4; KATHLEEN L. BARBER, PROPORTIONAL REPRESENTATION AND ELECTION REFORM IN OHIO 34 (1995). 12. SeeAMfY, supra note 9, chs. 5-6; BARBER, supranote 11, at 299-303. 13. For example, see BARBER, supra note 11, at 13 and ROBERT G. DIXONJR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS 41 (1968). 14. Vernon Bogdanor, First-Past-the-Post:An Electoral System Which is Difficult to Defend, 34 REPRESENTATION 80, 80 (1997). 15. See AtY, supra note 9, for an especially enthusiastic and wide-ranging endorsement of the benefits of Proportional Representation (PR). An earlier example of scholarly endorsement is GEORGE H. HALLETr,JR., PROPORTIONAL REPRESENTATION-THE KEY TO DEMOCRACY (1937). 16. See infra, Part I.B, for a fuller discussion of PR. 17. PR in its modern form was invented by Thomas Hare in the 1850s. SeeTHOMAS HARE, TREATISE ON THE ELECTION OF REPRESENTATIVES PARLIAMENTARY AND MUNICIPAL (1859). John Stuart Mill, impressed by Hare's analysis, took up the issue