Saturday, August 18, 2007

My Summer Vacation (or, What I learned from visiting New Zealand )

Sandy Levinson

I have now returned from a fascinating visit to New Zealand, and there is much to report on. First, though, a word from the New Zealand Tourist Bureau: Not only is New Zealand a beautiful country, even in their winter; New Zealanders as a group are also the nicest, most accomodating group of people I've ever seen. I could tell many stories of the superogatory kindnesses my wife and I were shown during our visit. I wholeheartedly recommend it as a place to visit.

Among the reasons, beyond the scenery and the pleasant people (and fascinating mix of cultures and wonderful museums), is what can be learned from the fact that in many ways New Zealand is at the other end of the constitutional-design spectrum from the US. One might begin by noting that it doesn't have a canonical "constitution" at all, though some argue that a group of basic statutes, going back to the Waitingi Treaty of 1840, have "constitutional" status. Be that as it may, New Zealand is perhaps the purest remaining example in the world of a classic "Westminster system" of parliamentary supreacy, and the parliament in question (though it's called the House of Representatives) has only one house. There is no judicial review, a fact emphasized in the New Zealand Bill of Rights Act, which explicitly says that judges are not entitled to invalidate any parliamentary legislation (though the NZBRA can certainly be applied against the "discretionary" actions of administrative agencies and the police, for example). Kiwis, having decided during the 1980s that their single-member district, first-past-the-post system was dysfunctional inasmuch, as in Olde England, it generated a highly aggressive prime minister who had a majority of the seats though not a majority of the electorate, changed their system, which is now basically identical to Germany's (which I regard as the best formal system in the world). Half the House of Representatives is elected in single-member districts, and the remainder through a national party-list system that assures that the final distrubution of seats will reflect the national vote (with a 5% threshhold for getting seats). This means, among other things, that the present government is a coalition government, as would certainly be the case in the UK if they switched to the German model. (Instead, Margaret Thatcher and Tony Blair can claim "mandates" by receiving 35-42% of the national vote.)

I remain unclear about what lessons New Zealand might have for the United States, given that we are 75 times as large (New Zealand has only 4,000,000 people in it), for starters. As I've earlier written (I think), I certainly think we are way too lare not to need a second legislative house, even if I remain adamantly opposed to the present allocation of power in the Senate. And, as with most federal systems, it's truly hard to envision doing without some kind of judicial review, as Jack suggested in his reply to Matt. It is certainly hard to imagine simply abolishing the dormant commerce clause if one is to prevent overreaching by states with regard to accepting the implications of the "national free trade zone" established by the Constitution. That being said, it was refreshing to be in a country where people (or at least the law professors and students I was interacting with) seemed to feel somewhat in control of their destinies, unlike Americans who are stuck inside a dysfunctional Constitution and, as a result, engage in all sorts of denial about the costs of our present system.

But even if New Zealand has relatively little to tell us about the national government in the US, it might still be a useful guide for American states. As Jesse Ventura pointed out, altogether correctly, there is no reason in the world for Minnesota or any of the other states with a population similar to (or smaller than) New Zealand's to have a second house, especially if these states have governors with the veto power. One thing we are realizing, given the inability of the national government to function effectively--at least in a civics book sense of passing legislation relevant to national needs--is that we need ever-more-able state governments. And at that level there is a tradition, in many states, of holding new conventions or, of course, in the western states, engaging in popular initiative and referenda to change constitutions. Most such referenda, of course, deal with hot-button substantive issues. It would be wonderful if someone in a referendum state would ask why it needs a senate. If it is too radical to suggest that New Zealand might provide useful evidence, then look only at Nebraska, which seems to function just fine with a unicameral legislature. Moreover, it is not clear why some state shouldn't be interested in looking at the NZ electoral system, which instantly makes close to irrelevant the possibility of gerrymandering. It may be hopeless to consider such a reform at the national level, where it is impossible to envision national-party "lists," but surely one might envision state-party lists, even in California.


It may be hopeless to consider such a reform at the national level, where it is impossible to envision national-party "lists," but surely one might envision state-party lists, even in California.

Those of us who live in CA are just hoping that one day we get an actual republican government, one which operates by majority rule instead of requiring a 2/3 vote, and which actually represents people instead of being gerrymandered to the point that they'd run lines through the marital bed if they thought one spouse was R and the other D.

As noted in my original post, the New Zealand-German method of elections instantly makes gerrymandering obsolete, save, perhaps, for efforts to save particularly beloved incumbents. But the energy now put into screwing the other party becomes pointless if the ultimate number of seats in the legislature depends on the statewide vote.

That's a good point; in Canada, all 10 provinces have a unicameral legislature precisely because of this (Quebec was the last to abolish their second house, the )

Of course, that is meted out with an Elections Act that prevents corporations from undue influence over government, which would probably be struck down in the US due to the 'juristic person' and first amendment idea if the court reaction to the Feingold campaign reform was any indication..

I also disagree with the way we elect US Senators, because it does not act like the 'cooling saucer' or house of 'sober second thought' *at all* these days. 17th amendment was not well thought out.

PS: Grrr. No anonymous comments? :(

BTW, here is a good overview of bicameral vs unicameral in the state/provincial legislatures:

Sandy: Thanks for your essay. It really opened my eyes to some new ideas!


Per John, I'm not sure what your ideal Seventeenth Amendment would be.

Was the Senate somehow working better in 1900 in this respect? If states, as some did, allowed some sort of plebcite that in a large way determined who would be senator, would it be different?

IOW, what about the 17A in particular worsened the situation really, as compared to only reflecting an ongoing trend? Likewise, many don't like it, but filibusters, holds, and so forth do "cool" things, just as intended.

To the degree politics and so forth perverted things, the problem (and others) existed for quite some time. Before 1917.

But, just a personal hobbyhorse. Overall, the comparative pol sci expressed here is quite helpful. How about inviting someone from the NZ to guest post.

If 'Half the House of Representatives is elected in single-member districts' ... why would gerrymandering be obsolete?

If a sizable number of districts are single member, the practice would still seem to have some force.

Many thanks for the discussion of the mixed member proportional electoral system used in New Zealand and Germany. We in the U.S. need a lot more information about this subject.

This mixed member proportional system (MMP) would be an excellent choice for the U.S. at the state and national levels. But it's not the only excellent choice. The Single Transferable Vote (STV) system used in Ireland, Northern Ireland, Malta, Australia (upper house only), and for local elections in Cambridge, Massachusetts, has a different, but equally important, set of advantages.

STV is the multi-seat sibling of instant runoff voting, which is rapidly becoming familiar to American voters. It's the only fully proportional system that is fair to independent voters and candidates (about a quarter of the American electorate) because it doesn't involve party lists. And -- for the same reason -- it works for local government, even in states where local elections are nominally nonpartisan. This is crucial because adoption of proportional voting in the U.S. has to start at the local level. It is very unlikely to to happen at the state level first, a point on which I might have a minor disagreement with Prof. Levinson.

MMP has several strengths compared with STV. It represents smaller parties and groups (under 10 percent support or so) more naturally than STV. The tabulation process and seat allocation formula are easier to understand and therefore more transparent to voters. And it preserves the idea of personal representation that is so embedded in American and British Commonwealth political cultures.

The Canadian province of Ontario will vote on adopting MMP at the provincial level on October 10. Visit the "yes" campaign for details. Electoral reform in Canada is about a generation ahead of us in the U.S. We desperately need to catch up.

Joe asks, If 'Half the House of Representatives is elected in single-member districts' ... why would gerrymandering be obsolete?

As Prof. Levinson points out above, the energy now put into screwing the other party becomes pointless if the ultimate number of seats in the legislature depends on the statewide vote.

It's true that MMP would eliminate the possibility of altering the overall allocation of seats to parties by gerrymandering, but Joe's question is still valid. The effect of gerrymandering on seat allocation in the U.S. is actually fairly small; the logic of single member districts makes a much larger contribution to the mismatch between votes and seats.

Gerrymandering is much more important as means of incumbent protection --and, under the Voting Rights Act, as a very poor substitute for proportional representation in terms of representation of ethnic minorities. While the Mixed Member Proportional system would improve representation of ethnic minorities, it's not clear to me how it would reduce the use of gerrymandering to create and maintain safe seats beyond the obvious fact they only half the seats could be gerrymandered.

On the other hand, the Single Transferable Vote uses multi-seat districts, which are much harder (althought not completely impossible) to gerrymander for any purpose.

I am grateful for Bob Richards's informed contributions to this discussion. Needless to say, I think that the Irish system also has much to be said for it, particularly with regard to state legislatures. It does seem to eliminate gerrymandering entirely, whereas there might still be some incentive to retain at least some gerrymandering. But I am confident that the importance of gerrymandering would be greatly reduced.

Incidentally,much of the debate in Canada has been triggered by the appointment, several years ago, of a "citizen jury" in British Columbia that spent, I believe, at least a year contemplating the election system and then offering reforms. These reforms were accepted by a majority of the electorate, but the voting rule required, I believe, either 60% or 2/3, and it didn't get that.

Like the British Columbia proposal in 2005, the Ontario proposal was also formulated by a provincial Citizens' Assembly.

The British Columbia government imposed two simultaneous threshholds: 60% of the total vote, plus 50% in 60% of the legislative districts. The proposal (in British Columbia, it was for STV rather than MMP) got 58% percent province wide (and majorities in 77 of 79 districts). This was in spite of very low voter awareness of the issue.

Ontario has imposed the same double super-majority requirement, which makes electoral reform an uphill fight there too. The ability of governments to set whatever threshold they like, separately for each referendum, illustrates one weakness of not having a written constitution (another topic touched on in Prof. Levinson's comments about New Zealand).

On this blog, Heather Gerken has explore the Citizens' Assembly model in several posts.

Sandy's comments, interest and enthusiasm are much welcomed by this New Zealander constitutional lawyer, currently at Yale Law School of the Fall semester.

In terms of constitutional lessons for the US, I agree that both MMP, the unicameral system and the lack of judicial review of legislation are worth comparative study.

But I also that the unwritten nature of the NZ constitution can be a stimulus to thinking about the nature of the US constitution; and wresting its definition and terminology back from the Supreme Court. Those interested can consult my views on exactly this in Matthew S. R. Palmer, "Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution" 54 American Journal of Comparative Law 587 (2006).

Matthew Palmer

New Zealand is one of the places I want to go on vacation to, due to the stories my friend has told me and the videos I watched that focused on that place. The last time I went on a vacation with my family was at Niagara Falls in New York. Apartment rental (short term) was the place where we stayed at for the whole duration of the trip.

We felt like we are living in style whenever we relaxed at the short term furnished rentals (NYC located apartments), and it was economical to boot!

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