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.

Waxman and McCulloch: The Democracy Manifesto

Wayne Waxman, a retired professor of modern philosophy, and Alison McCulloch, a scholar of philosophy and retired journalist (as well as a contributor to this blog), have just published a book named The Democracy Manifesto: A Dialogue on Why Elections Need to be Replaced with Sortition.

The Democracy Manifesto is about how to recreate democracy by replacing elections with government that is truly of, by and for the people. Written in engaging and accessible dialogue form, the book argues that the only truly democratic system of government is one in which decision-makers are selected randomly (by sortition) from the population at large, operating much the way trial juries do today, but 100% online, enabling people to govern together even across great distances. Sortition has a storied history but what sets The Democracy Manifesto apart is its comprehensive account of how it can be implemented not only across all sectors and levels of government, but throughout society as well, including the democratization of mass media, corporations, banks, and other large institutions. The resulting Sortitive Representative Democracy (SRD) is the true heir to ancient Greek democracy, and the only means of ensuring ‘we the people’ are represented by our fellow citizens rather than by the revolving groups of elites that dominate electoral systems. In the process, the book grapples with myriad hot topics including economic issues, international relations, indigenous rights, environmentalism and more.

Short refutations of common arguments for sortition (part 1)

Some years ago I wrote a set of posts refuting several standard arguments against sortition (1, 2, 3, 4).

It seems useful, however, to refute some oft-offered arguments for sortition as well. These are arguments that provide a poor foundation for the idea of applying sortition in government. Such arguments are made, and repeated reflexively, by academics, by members of the sortition-milieu, by sortition activists, in the press, and by others who discuss sortition. Often, in addition to being factually or logically unsound, these arguments also lead to advocacy of the application of sortition in ways that are bound to lead to a failure to realize the full democratizing potential of sortition, and in some cases are bound to lead to complete discrediting of the entire notion.

The first three arguments presented (and refuted) here all deal with supposed superior competence of an allotted chamber over an elected one. All suffer from essentially the same flaw. In fact, the advantage of an allotted chamber over an elected one is not that it is more competent but that it is more representative.

1. Allotted bodies would carry out real deliberation whereas elected bodies are the setting for partisan performances and grandstanding.

This argument is a favorite of propounders of “deliberative democracy”. According to this argument, a major reason that public policy is poor is that it is not determined through meaningful deliberation. Supposedly, the elected are too busy electioneering, or are too stubborn ideologically to deliberate with each other and develop good, common sense, widely popular policy. But why would a government with a majority in the legislature avoid deliberating within itself – in public or behind closed doors – in order to produce policy that would make it popular? Are they too stupid? If what they seek is “good policy”, or even if they just seek reelection and if deliberation could produce policy options that would make them more popular and increase their chance for reelection, why would they be unable to engage in such deliberation?
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Lottery Selected Panels in California (maybe)

On September 23, Linn Davis (Healthy Democracy) and I traveled to Sacramento for the California League of Cities Conference, an annual gathering of mayors and city council members from across the state. We presented a workshop on Lottery Selected Panels as an out of the box technique to approach difficult municipal decisions. About 200 municipal government personnel attended the presentation. A League publication promoted the workshop this way: 

Many elected officials are seeking completely different approaches to decision-making as they want to pivot away from the “way we have always done things”. One novel idea that is gaining momentum is called policy juries or sortition, where randomly selected representative members of the community are empaneled to learn about a topic, hear expert testimony, consider public comment, and make a decision. While the members of the policy jury are selected randomly, there is a process to ensure the jury reflects the demographics of the community, meaning the juries can truly be a microcosm of their city.

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Sortition by elimination

Worries are sometimes expressed about the impossibility of generating a sample of people at random in a way that cannot be manipulated by powerful actors. Sources of physical data are either too predictable to be of use or require machinery that is too arcane or sensitive to be effectively publicly verifiable. Social sources of data – such as the stock market or blockchain transactions – may be influenced powerful forces in society. Many randomizations that rely on explicit and symmetrical inputs from the public as a source of randomness have to utilize aggregation procedures that may allow those with advance knowledge of others’ inputs to manipulate the outcomes. With the prevailing mood of generalized distrust in institutions, a randomization mechanism would have to be completely open and verifiable to have a reasonable chance of inspiring confidence.

My proposal for such a mechanism is a simple elimination procedure which works as follows. At the outset, one candidate is eliminated. This candidate then gets to eliminate another, who then gets to eliminate another, and so on. The selection thus proceeds by sequential elimination of candidates until only one, or however many appointees are desired, remain.

This procedure is easily verifiable by any observer since it is self-contained and does not involve secrets, fancy machinery or fancy calculations. All the decisions involved are made in the open and cannot be foreseen in advance.

In addition to being manipulation resistant, this procedure has the advantage that it involves all interested citizens in the selection procedure and allows them to influence the outcome. By creating a new form of mass political participation, this procedure addresses the oft-heard objection to sortition that it deprives people from having influence over the appointment of decision makers.

In fact, while, like any form of mass participation, the impact made by any single decision-maker is minute, this form of participation is more meaningful than electoral participation because the choice made by each person – who to eliminate – is entirely unrestricted. This is in contrast which the electoral choice which is restricted a-priori by a primaries process in which the field of candidates is drastically narrowed-down. In the proposed procedure, citizens are completely free to make their elimination choices as they see fit, even if it may be seen as a sign of good citizenship to make this choice at random.

A minor technical point: The first candidate to be eliminated, the starting point of the elimination chain, can be chosen arbitrarily – this is not a position of decisive power, but rather the opposite, a position of disadvantage. If no other procedure is found suitable, an election can be used to select this person.

Neil Mackay: Only sortition could save the UK

Neil Mackay writes in The Herald of Scotland (paywalled, but full text available here):

BRITAIN feels wobbly, shaky. The killing of MP David Amess is just the latest event to unmoor us a little more from stability. In truth, the whole of the Western world feels shaky. Democracy seems to quiver wherever you look. The smart money is on Trump returning to Washington. France toys with the far right. The European project looks ready to implode. China looms over the once dominant West, threatening to eclipse America.

How did we get here? Just 20 years ago we were enjoying ‘the Great Holiday from History’ – the end of the 1990s when stability, peace and prosperity (at least in the West) seemed on an ever upward trajectory. Today, only the flagrantly optimistic don’t fear the future.

Perhaps historians – centuries from now, if humanity makes it that far – will call this period ‘the Great Disruption’, when everything was in flux and the world seemed broken.

Here in Britain, though, matters look even more dark and dangerous than in other democracies – aside perhaps from America with Trump waiting in the wings.

We’ve had two MPs assassinated in five years. The country is quite literally coming apart as Scottish independence and Northern Ireland threaten to turn the Union into a failed project. England is utterly divided between remainers and leavers. We’re facing a Winter of Discontent – a breakdown of functioning business. Britain has become a byword for treachery among our closest neighbours. After the Aukus deal, France views Britain with contempt. Dublin warns Britain cannot be trusted following threats to rip up the Northern Ireland protocol – a treaty negotiated by Number 10 but now up for destruction because it no longer suits.

Hate, division and conspiracy isn’t just stoked online – it now comes dished up in our mainstream media, from once reputable papers to broadcasters. Commentators fuel rage and seek scapegoats; the comment sections of newspaper websites drip with venom. In Scotland, the worst elements of unionism and nationalism make you fear how any future referendum – if it ever happens – might be conducted. Politicians – themselves the victims of so much hate – also stoke rage, with loose, dangerous language. Words in parliament profoundly affect the nature of British debate.

We’re an ailing state. What worries the mind is that an ailing state can become a failing state – and failed states turn very dark very quickly.

It’s not that the major forces currently at play in politics are wicked: Euroscepticism, unionism, nationalism – they’re all legitimate positions to hold. It’s how we’ve conducted the debate around these issues which has broken Britain so badly.

We are all better individually than the collective mess we’ve made, and we must all share some portion of responsibility for what’s happened, because we’ve all played our part in one way or another.
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Abizadeh: Representation, Bicameralism, Political Equality, and Sortition

A paper by Arash Abizadeh.

Representation, Bicameralism, Political Equality, and Sortition: Reconstituting the Second Chamber as a Randomly Selected Assembly

Perspectives on Politics, 2020

Abstract

The two traditional justifications for bicameralism are that a second legislative chamber serves a legislative-review function (enhancing the quality of legislation) and a balancing function (checking concentrated power and protecting minorities). I furnish here a third justification for bicameralism, with one elected chamber and the second selected by lot, as an institutional compromise between contradictory imperatives facing representative democracy: elections are a mechanism of people’s political agency and of accountability, but run counter to political equality and impartiality, and are insufficient for satisfactory responsiveness; sortition is a mechanism for equality and impartiality, and of enhancing responsiveness, but not of people’s political agency or of holding representatives accountable. Whereas the two traditional justifications initially grew out of anti-egalitarian premises (about the need for elite wisdom and to protect the elite few against the many), the justification advanced here is grounded in egalitarian premises about the need to protect state institutions from capture by the powerful few and to treat all subjects as political equals. Reflecting the “political” turn in political theory, I embed this general argument within the institutional context of Canadian parliamentary federalism, arguing that Canada’s Senate ought to be reconstituted as a randomly selected citizen assembly.

A proposal of sortition for a student body

In May 2020 Orion Smedley was running for president of the UCLA Undergraduate Student Association. One of the items on his platform was to select USAC councillors using sortition:

Orion Smedley for USAC President

The only way to get a truly representative sample of a population is random sampling (ask a statistician). And presumably we all want a representative government. Enter: Sortition. Sortition is like jury duty, only for legislatures as well. Imagine if your Congress members were ordinary people like you and me instead of career politicians.

Would it work in practice? It worked in Ancient Greece (britannica.com/topic/sortition). But how would it work here?

For starters, we could add a sortition based senate to USAC. While USAC could be the one generating proposals, the sortition senate could be in charge of choosing the proposals. As long as the senate is large enough (by the Central Limit Theorem, at least 30 people) and randomly selected, it would be as though all of UCLA’s undergraduates came together to voice their opinions. It’s the same way that a random spoonful from a well-mixed pot of soup tells us how the entire soup is, no matter how big the pot is; the way USAC is currently selected is closer to not mixing the pot at all and taking spoonfuls from the same spot over and over again, and then being surprised we get the same result every time.
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“Putting the practice of sortition on firmer foundations”

An article in Nature by Bailey Flanigan, Paul Gölz, Anupam Gupta, Brett Hennig and Ariel D. Procaccia proposes a sampling algorithm which produces samples with specified quotas for given subgroups of the population. Since the quotas do not match the proportions of the groups in the population, the probability of selection of each person in the population is not the same. However, the algorithm aims to make those probabilities as equal as possible.

The authors propose the use of their algorithm for selecting citizen assemblies from groups of volunteers. In existing practice, the group of volunteers for a citizen assembly is usually very unrepresentative of the population as a whole and the quotas are used to supposedly compensate for this unrepresentativity and make sure that the selected assembly is descriptive of the population as a whole. The authors claim that “[b]y contributing a fairer, more principled and deployable algorithm [than the previous algorithm used], our work puts the practice of sortition on firmer foundations. Moreover, our work establishes citizens’ assemblies as a domain in which insights from the field of fair division can lead to high-impact applications”.

In my view, while this work may be of theoretical interest in the field of sampling, and while the authors may have the most commendable intentions of promoting democratic decision making, the notion that this work in any way improves the political application of sortition is not only unjustified, but may actually be the opposite of reality.

First, it is obvious that unless absurdly arbitrary and drastic assumptions are made, quotas can in no way compensate for the unrepresentativity of a volunteer sampling group. For quotas to be able to compensate for the unrepresentativity of the volunteer sampling group, it must happen that within each quota group the probability of volunteering is uncorrelated with (informed and considered) opinions on the matters at hand. One would have to have a horribly mechanistic and reductionist notion of what determines individual opinions in order to make such an assumption. Thus, the entire endeavor of quota-adjusted sampling is no more than cosmetics over the reality of bias introduced by low volunteer rates in existing applications of sortition in politics.
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Escoubès and Proriol: Democracy, differently; The art of governing with the citizens

Frank Escoubès and Gilles Proriol are the authors of the book “La démocratie, autrement – L’art de gouverner avec le citoyen” (Democracy, differently: The art of governing with the citizens). In an article in L’ADN they describe the thesis of their book.

There is no doubt that our representative democracy is in trouble. Humiliated, attacked, sometimes rejected: what is going to be its fate in the period between now and the presidential elections of 2022?

The citizens do not feel represented anymore

This is hardly news – our democracy is flawed. The elected are supposed to create the most faithful, the most accurate representation of the citizens, that which a technocracy cannot achieve. The coronavirus crisis has sunk the nail, in silencing the citizens like never before. In the face of that, populism and demagoguery are rising, claiming that they will provide ways for the people to decide everything, all the time, by themselves. Denial the complexity of reality, political irrealism, ideological naivety. In this context, the risk of “democratic retreat” is real. This could be due to an absence of consultation with the citizens (plowing through) or due to a simplistic consultation without a follow-up (an unkept promise). There is therefore an urgent need to “repair the links of trust”.
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