Sortition for judges on the ballot in Switzerland

The Swiss Radio Lac reports:

Sortition is proposed

[In addition to other proposals] the Swiss will also have to vote [on November 28th] on the proposition regarding the judicial system. The proposition would institute appointment of judges using sortition in order to make them more independent. Official languages would have to be equitably represented and the judges would be able to serve up to 5 years beyond the normal age of retirement.

Parliament has rejected the text, without offering a counter-proposition, either direct or indirect. According to the elected, sortition would not guarantee better independence or better equality. Moreover, it would damage the democratic legitimacy of the judges.

Judges in Switzerland are currently appointed by the Swiss Parliament and they need to be re-appointed periodically. The notion that this provides judges with “democratic legitimacy” runs against standard liberal dogma:

At present, the Swiss parliament awards the posts of federal judge according to party strength. Judges with no political affiliation thus have no chance of gaining office.

When a judge is elected, she or he has to hand over money to the party – the so-called mandate tax, which is unique in the world, and constitutes an important source of funding for parties. In return, the judge can count on party support when it comes to re-election.

In this system, the judiciary is therefore politicised. Judges can be influenced by their party membership when passing verdicts, as studies have shown. And not just out of ideological considerations. Parties sometimes also exert tangible pressure. If they do not approve of a ruling, they can threaten not to re-elect the judge.

This mutual dependence calls into question the independence of the judiciary and the separation of powers. […] The Council of Europe’s Group of States against Corruption (GRECO) has also rebuked Switzerland.

A hit-piece against Lottery admissions

Prof. Jonathan Turley is an American legal scholar. In an article on his blog, he sounds the alarm regarding proposals to admit students to U.S. universities at random.

“Just Blind Chance”: The Rising Call For “Random Selection” For College Admissions

Random selection is not generally an approach that most people opt for in the selection of doctors or even restaurants or a movie. However, it appears to be the new model for some in higher education. Former Barnard College mathematics professor Cathy O’Neil has written a column calling for “random selection” of all college graduates to guarantee racial diversity. It is ever so simple: “Never mind optional standardized tests. If you show interest, your name goes in a big hat.” She is not the only one arguing for blind or random admissions.

Blind selection is the final default position for many schools. Universities have spent decades working around court decisions limiting the reliance on race as an admissions criterion. Many still refuse to disclose the full data on scores and grades for admitted students. If faced with a new decision further limiting (or entirely eliminating) race as a criterion, blind selection would effectively eliminate any basis for judicial review.
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Consent of the Governed

A recent conversation with a friend about sortition illuminated for me a stumbling block in making the case for lotteries–at least for advocates in the United States. This friend was adamantly opposed to lotteries. We argued back and forth for some time. In exasperation, I finally asked her what was so special about elections. She said, “Because elections are the mechanisms by which we the people express our wishes.” It was problematic for her that random selection allowed her no say in who would be chosen to be on a given panel.

In the Declaration of Independence, Jefferson wrote of certain unalienable rights (life, liberty, etc.), arguing “… that to secure these rights, Governments are instituted among Men [sic], deriving their just powers from the consent of the governed …”

By this Jefferson meant that the people give permission to their representatives to rule over them. The disconnect for most of us is that our representatives often give preference to their donors over voters, making a mockery of consent. But to argue that elections provide only the illusion of consent does not answer the concern that a randomly selected policy making body would give people no say in who’s making the rules.

One answer to the concern would be a referendum wherein voters approve the creation of a randomly selected policy-making body. The Michigan redistricting commission—a thirteen-member body selected by lot—was established by a 2018 referendum amending the state’s constitution. The commission has the power to re-draw district lines, and it was created by popular consent—60% of Michigan voters approved the amendment: they removed power from an elected group (the state legislature) and entrusted it to a group selected by lot.
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Non-Partisan Sortition Activism: Real Or Imagined?

I’ve recently been urging legislators in my home state of California to write a bill to implement the CIR (Citizens’ Initiative Review) process to make our ballot proposition system more democratic. We have two parties in our state, and generally, one (the majority) has been more receptive to such a bill than the other. This reflects the national situation where one major political party seems at least overtly supportive of democratic reform, whereas the other, not so much. This state of affairs contrasts with polls that show the idea of democratic lotteries to be popular with both conservatives and progressives. Of course we need to be building a cross-ideological grassroots coalition to give democratic lotteries a place in government. But what about the existing political parties holding power? Currently they make the laws. Do we try to work with them or do we ignore them?

Suppose I continue to have no luck with minority party legislators and we get a CIR bill in my state, and suppose it’s entirely supported by the majority party and not the minority party. This is not a hypothetical. There is a real possibility that such a bill could pass the legislature and become law. But is it worth it? Or will a CIR law supported by only one party, even if the majority party, paint the sortition movement as partisan? Is a one-party supported CIR worse than no CIR? Should we not be working with the legislature at all, but rather using the initiative process in our attempts to make change?

Getting out the vote

There are twenty-six options to vote for in the poll for changing the subtitle of this blog and, at the time of writing (08 Jan) we have only seventeen voters. Unless we have a large increase in voters (this blog has 996 followers) there is a good chance that the outcome will be random in the pejorative sense, rather than reflecting the preferences of posters and readers. The poll ends on Tuesday 12th, so we would strongly encourage as many people as possible to vote. The voting system is Ranked Choice, so you can include as few or as many choices as you wish. Vote by posting a comment to https://equalitybylot.com/2021/01/05/subtitle-change-vote/.

Citizen initiative review in Switzerland

Grégoire Baur reports in Le Temps about “Demoscan” – a Swiss experiment with citizen initiative review initiated by Nenad Stojanovic, a University of Geneva political science professor:

The concept of the Demoscan project is simple: “ordinary citizens” inform their peers during a referendum campaign. An allotted panel representing the population, having had the opportunity to hear the experts as well those pro and against the proposal put up for a referendum, write a report which is sent to the citizens together with the voting materials.

“Very encouraging” results

At Sion [the capital of the Swiss canton of Valais], 20 people took part in the experience as part of the campaign regarding the popular initiative proposition “More affordable housing” last February. “The objective of the pilot project was to see to what extent could information provided by citizens encourage people to vote, what level of confidence the citizens would have in an allotted panel. The result are very encouraging”, says Nenad Stojanovic.

Whereas usually the turnout in Sion is low, in this case the turnout was somewhat higher than the average in the canton. The confidence accorded to the panel by voters was higher than they have in the federal parliament. In addition, the citizen report was the second most consulted source of information, behind the official brochure of the Federal Council, but ahead of the media and the campaign party slogans. “The citizen panel will not replace the democratically elected authorities, but it can complement them”, emphasized the political scientist.

Stojanovic is already engaged in another experiment in Geneva and hopes to launch others.

Citizens allotted for drawing electoral districts in Michigan

Back in January it was reported that Michigan has sent out invitations to voters to apply to serve on the Independent Citizens Redistricting Commission. 13 citizens have now been selected to serve on the commission “charged with drawing new district lines for members of the state House and Senate”.

The commission is being assembled as a result of a November 2018 ballot proposal, Proposal 2 which passed with support from 61% of voters. Redistricting was previously handled by the Michigan legislature and approved by the governor, which, Proposal 2 supporters pointed out, allowed politicians to set their own district lines.

Despite the rather limited purview of the commission, it has two important characteristics that set it as an independent source of political power and thus lend it importance. First, the body was constituted through a ballot measure. Thus it was legitimated and mandated directly by the citizens. Second, the body’s function is to supervise, and indeed to limit the power of, the elected officials.

Information about the allotment is available on the state government website. Some of the skews in the applications demographics are quite interesting.

The French overwhelmingly support the proposals of the Climate Convention

An opinion poll conducted by the Odoxa polling institute after the release of the proposals of the French Citizen Climate Convention reveal that large majorities support the proposals made by the convention.

Among the top billed proposals, amending the constitution to include preservation of the environment was supported by 82% of those polled. 74% supported mandatory environmental retrofitting of buildings, and 52% supported the creation of “ecocide” as a new form of crime. On the other hand, the proposal to lower the speed limit on the freeway to 110 km/h was met with disapproval by 74% of those polled.

Generally, 62% of those who have heard of the proposals made by the Convention supported them, and majorities felt they were realistic and effective. While 81% of those polled supported putting the proposals to a referendum 73% believed that only a small part of them would be put into effect.

Bellon: The sortition pandemic

A column by André Bellon, July 7th, 2020.

This is not the first time that I opine on sortition, but addressing this matter seems to me more and more necessary in view of the avalanche of commentary which has accompanied the celebrated “Citizen Convention for the Climate”.

If the advocates of sortition were able to appear for a while like dreamers, they are now showing their toxicity. They are now are now no longer merely asking us for a convention aimed to enlighten public decision making. They are now demanding an allotted parliament. Considering, with much justice, that the elected do not represent the voters any more, they are not trying to redefine the mandate of the elected. They are proposing to suppress the voters.

An so, Jacques Testart conjures up an allotted constitutional assembly. Just that! The legal expert Dominique Rousseau, who constantly criticizes universal suffrage – which he falsely associates with abbé Sieyès – asks for a new deliberative assembly formed by sortition. To justify his request, he declares: “The nation has its chamber, then national assembly. The territories have theirs, the senate. The citizens, who are everything in society but nothing in its institutions, should have their chamber as well”. Beyond this far-fetched argument, Rousseau feels that in order to be truly represented, the citizens should no longer be voters. To be consistent, he opposes the popular initiative process (référendum d’initiative citoyenne) because it could “ask about the reestablishment of the death penalty, citizen preference or the preventative detention of sexual deviants?”.
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Macron “accepts all but three” of the CCC’s 149 recommendations

RFI reports:

A day after a powerful push by the Greens in French municipal elections, President Emmanuel Macron on Monday vowed to speed up environmental policies – promising an extra €15 billion to fight global warming over the next two years, and throwing his support behind two referendums on major climate policy.

Macron was responding to proposals put forward by the 150-member Citizens Climate Convention (CCC), a lottery of French people chosen to debate and respond to the climate challenges facing society.

During a meeting in the gardens of the Elysée Palace, Macron told convention members that he accepted all but three of their 149 recommendations which would, he promised, be delivered to parliament “unfiltered”.
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