Balkinization: Further thoughts on "representative sample voting"

Further thoughts on "representative sample voting"

Sandy Levinson

I posted a comment on "Election Fetishism" several days ago, and I then received the following superb response (and critique) from a San Francisco lawyer, Gordon W. Renneisen. He asks a host of completely relevant questions. Perhaps the most probing has to do with whether the "representative sample" of voters would be selected just before election day--and thus in fact being no more likely than the typical voter to have deeply studied relevant issues--or selected well in advance, which raises all sorts of important problems about access to the now small set of determinative voters in the run-up to election day. With his permission, I am posting it in its entirety. There's no point in any discussants discussing my own prior posting, but it would certainly be interesting to read any thoughtful responses to Mr. Renneisen's comments.

* * * * *

Gordon W. Renneisen

As the U.S. is exceedingly unlikely ever to adopt a system under which presidential elections are determined by the votes of a representative sample of Americans, I read your piece as a thought experiment. It is a good one, though.

I agree that a properly designed representative-sample-voting (“RSV”) system could yield results that reflect the preferences of a majority of the county better than the current system. But even as a thought experiment, RSV raises a number of questions that would need to be addressed before anyone – including people like me who are predisposed to like the idea – could be expected to support it. A few questions that spring immediately to mind are noted below.

How is the representative sample to be selected? In designing any survey in which a representative sample is to be questioned, and the opinions of a larger population are to be determined by extrapolating from the sample’s answers, reasonable experts can disagree regarding the proper design of the sample – and small changes in the composition of the sample can have significant effects on the results obtained. To avoid giving the party controlling the White House (or the White House and Congress) the power to skew the results of RSV by adjusting the selection of the sample, any law or constitutional amendment adopting RSV would need to expressly dictate the exact means to be used for selecting the sample. Reaching agreement on the sample selection process would not be easy. Even if there was a consensus that the RSV panel should be randomly selected from the census rolls, there would be debates over how to weed out non-citizens and whether any adjustments ever could be made if the initial sample selected was significantly under-representative of any of the racial groups captured by the census questionnaire.

How can the tension between having a representative sample and having an informed panel be resolved? A truly representative sample would be selected at the end of a traditional presidential campaign and then be immediately polled. There would be no savings on campaign expenditures and the RSV panel would have no more information than any other random slice of the electorate on election day. Another approach, and the one your piece seems to endorse, would be to select the RSV panel immediately after the Republicans and the Democrats have nominated presidential candidates; skip traditional presidential campaigns entirely; have the members of the RSV panel attend hearings or forums at which the candidates would discuss their positions and answer questions (the “Candidate Forums”); and defer polling the panel until after the conclusion of the Forums. Under this approach, by the time the panel voted, its members would have given a level of thought and study to the issues that is not representative of the overall electorate. I can see the benefits of either approach. But one or the other would need to be selected.

If there are going to be Candidate Forums, would third-party candidates be allowed to participate and, if so, what criteria would a third-party candidate have to meet to qualify? These are important questions. But I am not trying to answer them today. Solely to simplify an already complex raft of problems, I am assuming that the RSV panel would be considering only Republican and Democratic candidates.

If the RSV panel will be attending Candidate Forums, what logistical steps would be required to organize the Forums? And what format would be used for those Forums? If, as you suggest, there would be approximately 2,000 members of the RSV panel for each presidential election, the logistics of getting them to Candidate Forums would be complex. Flying them all over the country to attend different Forums in different cities would be a logistical nightmare and immensely disruptive to the members of the RSV panel. The obvious technological solution, giving the RSV panel the option of watching televised Forums comparable to the debates conducted in the current system, would be a suboptimal means of educating the panel. Many members of the panel would not bother watching such Forums and the current debate format is not a good way of conveying information about the candidates. My solution would be something along the following lines.

Each citizen randomly selected for the RSV panel would have 24 hours to accept or decline appointment to the panel.

Alternates would be immediately selected to replace those who opt out, and the alternates likewise would have to quickly accept or decline appointment.

The goal would be to have a full and final panel list compiled within a week of the time the first 2,000 randomly-selected citizens are contacted.

The government would then fly all members of the panel to a pre-selected college campus. (Colleges and universities would be eager to host the RSV process during the summer when classes are not in session. All preparations for an election-year RSV process could be completed well before the panel was selected.)

The panel would be housed in dorms and eat in the university dining halls for 7-10 days. (A tentative schedule would allow members of the panel to check in between Friday morning and Sunday afternoon, based on personal preferences and any applicable religious constraints; run Forums and other programs Monday-Friday; allow the candidates to campaign on campus on Saturday and Sunday; have the candidates deliver sequential one-hour closing arguments (with the order determined by coin flip) mid-day on Monday; have the panel vote Monday afternoon/evening; and fly everyone home on Tuesday.)

During the panel’s business week on campus there would be three, major, “prime-time,” head-to-head Forums featuring both candidates and designated questioners. (I will leave it to others to come up with a precise format for the Forums, one which hopefully improves upon the current debate formats.) In addition, throughout the week each party would be free to put on issue-specific seminars and other events.

All events on campus would be televised and/or broadcast on the internet but would not be open to the public. Likewise, campus would be closed to the general public.

All members of the RSV panel would be issued ID cards that, among other things, would allow them to swipe into the university dining halls for free food. Each member of the panel would be required to attend the three major Forums and the candidate’s closing arguments. Attendance would be monitored by having the panel members swipe in to these evets.

Each member of the panel also will be requires to submit a ballot. Protocols would be in place to preserve ballot secrecy and to give panel members the option of submitting blank ballots or votes for write in candidates.

All members of the panel who attended the four mandatory events and submitted ballots would be paid for their service. This would be a true payment, not the kind of token payment made for jury service. My recommendation would be for a payment in the range of $2,000-$3,000.

What limitations can or should be put on media contact with the RSV panel? I don’t know. But both a prohibition on all press contact and a free-fire rule, which would allow the media to overrun campus or surround the panel members in their homes, seem highly problematic.

How much campaigning or lobbying will be allowed after the selection of the RSV panel? If my proposal for having the whole RSV process play out on a university campus were adopted, every PAC, interest group, and lobbyist in the country (collectively “Lobbyists”) would be clamoring for access. On a practical level, everyone except for the panel and the two campaigns could be kept off campus. But that would seem to violate the First Amendment. Maybe there could be a set of rules that allowed Lobbyists on campus but restricted them to a different set of dorms and dining halls and limited them to hosting events. Thus, while the Lobbyists would be precluded from approaching the panel members, the Lobbyists’ information would be available if the panel members sought it out. The question then becomes whether the types of events put on by the Lobbyists could be regulated. Would they be limited to presenting informational seminars or would bread and circuses be allowed? Could Earth Justice put on a campaign rally for the Democrat featuring a concert by Bruce Springsteen? Could the NRA host a dinner in support of the Republican featuring Wagyu steaks, caviar, and 18-year-old Scotch Whiskey?

If the RSV process plays out over a longer period of time, with multiple weeks or months passing between the time the identities of the panel members become known and the time that they vote, they would be subject to constant one-on-one campaigning and lobbying – which would overwhelm and supplant the effect of formal Candidate Forums. There would be no practical way of even partially sequestering the members of the panel. They quickly would cease being a representative sample and would become celebrity royalty. Lobbyists and campaigns presumably could be precluded from giving the panel members anything of value or wining and dining them. But what will it do to the RSV process if panel members have their favorite actors or athletes showing up in their living rooms to pitch them on one candidate or another?

If you have thoughts on how to solve this problem or how to address the other questions flagged above, I would love to hear them.

Posted 4:08 PM by Sandy Levinson [link]

Comments:

Mr. Renneisen and I had many of the same thoughts.

# posted by

Bart DePalma : 4:40 PM

Setting aside the political impossibility of reaching this system in the first place by any democratic route, the biggest issue I see is the candidate forum notion.

Clearly, even if the panel begins as representative of the general population, after it's been through these forums, it will have become radically unrepresentative. So, forget about this being genuinely representative government, it's only representative in an attenuated sense.

Now, it might be argued that this is good, they're unrepresentative in the sense of being better informed. And I *like* the idea of a better informed electorate.

But this isn't an electorate that's become better informed out of self-motivated research. It's an electorate that's become 'better informed' by exposure to carefully curated information. If only just due to lack of time, (You can't become fully informed on all issues in half a year, even if it's your sole occupation!) the information provided will be limited, according to somebody's idea of what is relevant.

The panel will become jurors, and in the proverbial mushroom sense: Kept in the dark and fed BS. Inevitably this will happen.

Let's be honest here for a moment. It won't just happen. It's the point of this whole exercise, isn't it? You can't curate the information the general public are exposed to, so you dream of reducing the electorate to a small enough group that you can control what they hear.

# posted by

Brett : 6:28 PM

It's an electorate that's become 'better informed' by exposure to carefully curated information.

The author of the comment is well geared to flag this issue.

Anyway, interesting. I'm not really impressed with the idea writ large as I noted last time. But, the concept (as one comment then noted in particular) might be useful in certain contexts. So, generally, I appreciate thinking about it.

# posted by

Joe : 7:14 PM

I'd like to add that it would be an awful idea even if my side got to do the curating. Nobody is to be trusted with that sort of power.

# posted by

Brett : 7:18 PM

You can't curate the information the general public are exposed to, so you dream of reducing the electorate to a small enough group that you can control what they hear.

Someone once said:

I don't think you have a hope of understanding people who disagree with you, so long as you're committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

Do you agree?

# posted by

byomtov : 8:14 PM

Remind me again which party was outraged by the Citizens United ruling preventing censorship in the name of "campaign regulation"? Which party defends deplatforming? Raves about "agnotology"?

If the shoe fits, wear it. Only one side in America's political spectrum wants to silence its foes, and it isn't my side. It hasn't been for a long time.

Not being permitted to censor political speech was a big part of what caused Sandy to declare the Constitution "broken".

# posted by

Brett : 9:27 PM

"Agnotology?" WTF?

Only one side in America's political spectrum wants to silence its foes, and it isn't my side.

CU? Personally, I think CU would have been rightly decided had the court ruled narrowly in CU's favor. It is the expansion to all corporations that I think was both wrong and politically motivated.

"Deplatforming" is right-wing nut job paranoia.

Only one side in America's political spectrum wants to silence its foes, and it isn't my side.

Only one side in America's political spectrum wants to keep its foes from voting, and it isn't my side. If that doesn't count as "silencing," what does?

# posted by

byomtov : 9:37 PM

This comment has been removed by the author.

# posted by

Joe : 10:20 PM

I think the issue may be placing too small a group under too large a microscope.

What if the selection group is something like 10,000 people who take up residence in the dorms with up to 4 friends or family able to attend with them. Pay them whatever you want...we are not a poor country and this is an important election.

The identity of the actual selectors is secret, or at least they are given nothing to denote their special status so anyone on campus over the age of 18 can claim to be a selector to anyone who asks.

The actual 10,000 selectors all fill out a completely anonymous ballot. But some random process selects just 2,000 of the ballots to count.

Does that change any of the concerns about the courting by interest groups and the attention of the press? Let them all show up on campus. It starts to get very expensive to buy steaks for every single potential selector when they are mixed into a crowd.

Set reasonable limits on lobbyist, etc. events and even on what they can spend if you want so a billionaire doesn't foot the bill for all the steaks.

It would all be quite the party (and you may have to limit alcohol!) but in the end some good could come from it.

# posted by

Scott W : 10:51 PM

Even better than 10,000 for randomizing the process and avoiding things like bribery would be 150 million.

# posted by

Mark Field : 11:06 PM

Even if this could be done, I think it's a bad idea.

Is that sample really going to learn enough about the issues during the week-long session to be significantly more knowledgeable than the average member of the electorate? I doubt it. I'll ask the law professors here how much understanding of Constitutional law, for example, the group might acquire, bearing in mind that it would be only one of a number of subjects discussed. Think of macroeconomics, tax policy, the various aspects of foreign policy, environmental issues, etc. In a week, with a group starting with a widely varying knowledge base?

Candidate forums? If they are anything like the televised "debates" we now have they will be useless recitations of rehearsed talking points, along with occasional attempts at clever gotchas.

Seminars put on by the parties? Will attendance be voluntary? If so, these will mostly be propaganda sessions, aimed at the already convinced. They sure won't be "seminars" in any meaningful sense.

In other words, I think the experience of the group would simply be a more intense version of what voters go through now - some tidbits of solid information and argument, mostly swallowed up by noise.

# posted by

byomtov : 9:29 AM

" I'll ask the law professors here how much understanding of Constitutional law, for example, the group might acquire, bearing in mind that it would be only one of a number of subjects discussed. Think of macroeconomics, tax policy, the various aspects of foreign policy, environmental issues, etc. In a week, with a group starting with a widely varying knowledge base?"

And then you get into the fact that there are disagreements over these things. You want them to understand constitutional law? From a living constitution or originalist perspective?

You want them to understand economics? Austrian, Keynesian, neo-Marxian?

You want them to understand foreign policy? Isolationist or interventionist?

What you teach them drives the conclusions they arrive at, and thus how they "vote". Obviously, trivially. What they're taught is the whole game.

Imagine the entire resources and emotion of a full Presidential campaign, focused down on the fight over what 2000 people get taught. With the stakes of winning being everything.

That's what this proposal entails.

# posted by

Brett : 10:14 AM

Lessons learned.

(1) What "agnotology" means.

(2) There actually is some things that people here as a whole agree is a bad idea.

# posted by

Joe : 10:34 AM

(2) Well, of course there are. We just don't tend to discus them, because it's rare that anybody proposes something that's almost universally opposed.

# posted by

Brett : 11:10 AM

GM repeatedly brings up things that people on both sides here tend to agree are off.

# posted by

Joe : 12:22 PM

"The panel will become jurors, and in the proverbial mushroom sense: Kept in the dark and fed BS."

This is today's 'conservative,' someone who despises that idiosyncratic, historical bedrock of Anglo-American jurisprudence, the jury.

Today's 'conservatives' are Jacobins.

# posted by

Mista Whiskas : 9:06 PM

"Nobody is to be trusted with that sort of power. "

This is the guy who approved of office holders using their office powers to selectively go after their political opponents*

*except for days later when he raged against that, though based in an absurd conspiracy theory

Not. Serious. Persons.

# posted by

Mista Whiskas : 9:08 PM

"Which party defends deplatforming?"

You mean like calling for NFL players or ESPN commentators to be fired for their speech?

Which party leader talks about opening up libel laws and talks about challenging the FCC licenses of news outlets that they don't like?

This is one of the least self-aware persons in the universe.

# posted by

Mista Whiskas : 9:14 PM

The thought experiment is basically juries. Juries decide cases in which many powerful people have considerable interests. How do we protect the integrity of juries? That, I think, is the beginning of an answer to Sandy's thought experiment.

Again, though, I think for me the biggest argument against this is: there are lots of groups who, as opposed to feverish conspiracy cranks like Bircher Brett, would have a reasonable even if irrational basis to object to this. That is, even if this were run by up and up folks like Sandy and designed by the best social scientists, groups like blacks, women, gays, Native Americans, etc., who have struggled so long and hard for basic democratic rights are going to be too prone, and reasonably so, to believe in large part 'in their gut' that this program which purports to speak for them will not. That's earned suspicion, and their loss of perceived legitimacy by this would be tragic.

# posted by

Mista Whiskas : 9:21 PM

Juries have a limited function that in an average case addresses the fate of one individual. And, then we have multiple safeguards in place including the appeals process. Not sure how that would apply in the thought experiment here.

# posted by

Joe : 9:54 PM