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Professor: Richard Katz...

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The Early History of V Voting oting and Elections ● Athens - democracy as direct rule by the citizens and for the avoidance of tyranny ○ Aristotle consider decision by the people in the athenian assembly to be democratic, but elections are undemocratic ○ Aristotle regarded democracy a “perversion” of the appropriate political arrangements ○ Greeks elected by drawing lots and with combo w/voting

■ Even we draw straws/coins to decide ties ○ Origin of elections appears to lie in reforms introduced by Solon, 594 B.C. ■ Before then, gov’t was in the hands of aristocrats ○ Divide people in two classes based on their income ■ Treasurers of Athena is restricted to the top order

■ Lesser officers are open to people in the middle orders ■ 4th order - law courts, ○ This represents the first time that ordinary people were given a place in which they could speak and access to courts to which any citizen could take its grievance ○ This also gave the athenians the power to electing to office and calling of magistrate to account ○ Exactly how this is done was in dispute ○ Tribes = kinship ■ Each tribe elected certain # of candidates by votes, final decision was decided by drawing lots ○ Solonic system didn’t last very long

■ Most fundamental of Solon’s reforms is complete reorganization of population ● Created 10 artificial tribes based on location

■ He enrolled many new citizens, to be an athenian citizen you had to be a child of the athenian citizen → created new citizens ■ Majority of new citizen were in areas where his family was strong and where they show gratitude by supporting his family

■ New tribes cut across major political groupings of the day: ● ● ● ●

Shore -- shipping efficient City -- governing and commerce Countryside -- agriculture Allowed breaking up the strength of aristocratic areas --- aka gerrymandering (to his advantage) ● Essential feature = each tribe was representative equally (thus minimizing tyranny)

■ Most officials were chosen by lot ● Candidates were first nominated by 139 neighborhoods

■ People were expected to keep accounting of their performance at least 9 times per year ■ 1st provision: Taming of power -- principal fear was an oligarchy ● Use of the lot was one way to prevent this from happening ■ 2nd provision: Division of power among boards had much power on his own ■ Third provision: short terms ● Sometimes term of office could be as short of one day ● Ineligible to succeed themselves ● For some major office, a person could hold office once in a lifetime ● Any citizen who chose to be a candidate could expect to hold a major office position once in his life -- to govern as well as to be governed ● Generals could succeed themselves → lead to reform that allowed to have more than one general for a tribe ○ Moved to more central over time → lead to political dominance of the generals ○ Athenian citizens were all men ○ Pericles age of Athens -- assembly of the citizens met at least 40 times a year and had full legislative authority -- any male citizen over the age of 18 could attend/speak/vote

■ Voting was by show of hands ■ Ostracism - votes to ostracize required an extraordinary quorum, votes were cast in writing ● a form of election designed to curb the power of any rising tyrant ● Once a year the people would meet in the Agora and take a vote to determine if anyone was becoming too powerful and was in a position to establish a tyranny. If a simple majority voted yes, they met again in the Agora two months later. At this second meeting each citizen carried with him an ostrakon (potsherd) on which he had scratched the name of the person he wished ostracized. if at least 6,000 votes were cast, the man with the most votes lost and was exiled for ten years. ■ Athenians valued secret vote that touched on rights of citizens, but open voting on stuff like communal policies ● Again central theme was prevention of tyranny

■ Leaders who were freq elected generals were the most prominent people

for ostracism

■ Popular participation was valued, but it wasn’t really all that prominent ■ Participation = doing one’s share in the dirty work of running the city ○ Reforms of Cleisthenes (507 B.C.) - the father of Athenian democracy.

■ ancient Athenian lawgiver credited with reforming the constitution of ancient Athens and setting it on a democratic footing in 508 BCE. ■ introduced a system of political reforms that he called

demokratia, or “rule by the people.” ● Rome - republicanism as rule by an elite with the consent of the citizens ○ Republic is 509 B.C. to 29 B.C. ○ Rome was never a democracy in the “Greek” sense and also not in the “democracy” sense either ○ Assent = command, refusal to assent = prohibition ○ Even if there was a choice in elections, it was a choice that was tightly controlled y presiding magistrate ○ Legislative vote were generally yes or no decision put on by the magistrate with NO amendments possible ○ The presiding magistrate in particular nad ruling class in general had a variety of devices by means of which they could control the outcome of a vote ○ Majority should not have the strongest voice ○ Most important difference: Greece = majority of individual votes that determined the results, Rome = majority of votes counted as groups that determined the results → opens the way for modern gerrymandering ○ Roman voting assemblies ■ Curial assembly (comitia curiata): based on kinship (10 curiae for each of the 3 clans), granted the right to take auspices ● Oldest assembly ● By 440 B.C.,, it was already of secondary importance ● Conferred the right to take offices

■ Centuriate assembly (comitia centuriata): based on the army, primary electoral assembly ● Assumed a major political role during the unrest of the end of the roman ● Most unweirdly of the assemblies ● Replaced by tribal assemblies ● Elected major magistrates throughout the republic ● Total 193 = 18 aristocratic calvary, 80 infantry of the 1st census class, 20 from each of the next 3 classes, 30 from the 5th class, 5 from the non-combatants (too poor to get into the 5th class)

○ What you could afford determined which class you were in ● Advantage of the rich was multiplied by their privilege of voting first ○ Important b/c (1) possibly of setting a trend (romans were big believers of omens), (2) roman practice of electing several officials at once and considering the votes of a majority unit as sufficient and necessary for an election ■ As soon as a candidate reached a majority, he was elected ■ If the rich were unanimous, the poor wouldn’t be called the vote at all ■ One result: candidate who was the choice of the most centuries might NOT be elected ● organized the Roman citizens into classes and divided into units called "Centuries", and these gathered into the Centuriate Assembly for legislative, electoral, and judicial purposes. ■ Tribal assembly (comitia populi tributa): based on territorial tribes, with all citizens eligible to vote

■ Tribal assembly (Concilium plebis): based on tribes, but with patricians excluded

■ All of these assemblies were stacked in favor of the rich ● Particularly the case for the centuriate assembly

■ Tribes voted simultaneously (votes announced in an order determined by wealth), centurian voted one at a time ■ Rural voters likely to be under influence of a patron -- unlikely to turn up to vote in rome without hospitality of its patron ■ In all assemblies, the presiding magistrate had a lot of power

■ Government by the consent of the people, but not government by the people

■ Use of a secret ballot appears to have increased electoral bribery b/c it made social pressure less effective ● The church - voting as a way of discovering the will of God ○ A chief source of theory and experience for building European institutions ○ Devised many procedures including relevant qualified absolute majorities as well as secret ballots we use today ○ Originators of the modern concern for strict procedural regularity ○ Tension in the church b/w status as its believers and its status as a hierarchical organization

■ Tension had 2 manifestations: ● Whether Lay men could participate ● How much freedom of choice the electors could have ○ Lay men are excluded from voting decision, decisions are made by pope

○ Hcurch was a major land holder → appointment of Bishops and abbots were important politically as well as churchly ○ Church tried to take refuge in perfect procedural regularity

■ Not always successful in this ■ Becket, for example, were named by the king with no pretense of elections ■ Other times, electors were summoned to ratify king's choice in the king's presence ○ Choice did not itself confer authority -- authority came from God and in practice, by appointment, by superior

■ Confirmation was an essential part of election Purpose is to provide a vehicle for which the wheel of God could be expressed Doctrine of senioritas Unanimity by quasi-inspiration (quasi-inspiratio) Election by compromise or mutual promise (compromissium) ■ Agree in advance that we will accept the decision of whoever makes the decision ■ Unminity is preserved in this ○ Election by formal ballot (scrutinium) ■ Conjunction of greater and wiser parts (maior et sanior pars - The successful side of an election in which victory is not based on numerical majority but where greater weight has been given to the votes of some electors based on their authority, intellectual prowess, moral standing, purity of intent, and fairness of judgment.) ■ Presumption that ⅔ majority includes the wiser part ● Could be challenged by a minority, even of 1 ■ 2nd council of lyons made the presumption that a ⅔ majority includes the wiser part unappealable, and accepted absolute majority failing an appeal based on canioritas

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■ Council of Trent allowed a simple majority for canons of reformation (but not of doctrine), and called for a secret ballot, which made appeals based on sanioritas impossible ● Britain - electing a representative assembly ○ Parliament developed out of 3 roots: ■ (1) court of the King ● Election is not an issue ■ (2) King’s need for information

■ (3) money -- the King needs money! As the chief futile lord, the King has a variety of futile dues ● 4 Knights of the Shire to provide aid ■ From these 2 roots, we get the house of commons

■ When members were returned, the right to elect them appears to have

been valued and there were several complaints about the King’s representative in the shire

■ Knights didn’t necessarily have to act to their Counties ■ When they had to consent for taxes, Knights had to be attorney’s for their constituents

■ Write of election often needed Knights to come with full power, Knights came as attorney’s of corporate communities and NOT of individual people ○ Counties: 40 shilling freehold (changes with inflation) ■ group of people who had the parliamentary franchise to vote by possessing freehold property, or lands held directly of the king, of an annual rent of at least forty shillings, clear of all charges ○ Boroughs: ■ Corporation franchise

■ Freedom franchise ■ Burgage franchise ■ Scot and lot (a tax); potwalloper; household

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● People who pay taxes can vote ● Household franchise is simply the householder can vote ● In 1640, about 30% of adult males in England can vote, but under 10% by 1852 -- franchise was even more restricted in Scotland Very little people of Scotland could vote despite its population Many seats were bought outright, many were sold in the paper Balance of economy shifted to trade and industry Commons become coequal with the Kings and Lords in representing national interests ■ Required new adjustments to elections and electoral systems

■ Required that the house of commons be a deliberate assembly of one nation rather than a congress of ambassadors ● This required independence and talent, which purchased seats allowed → lead to the idea of virtual representation ● Reform act of 1832 ○ All burrow franchises were replaced by a unified 10 lb household requirement ○ Similar reforms in Scotland ● Athens direct democracy, new england town meetings, swiss referenda ○ Athenian problem: turn-out -- also continues to be a problem for us today ○ Athenian turn over seen in term limits (enforcing turnovers in office) ● Rome - the advice from Scicora from his brother to avoid the issues -- avoid making enemy seems quite reflective of modern process ○ Romans tended to indulge in rumor stuff ○ Stacking institutions in favor the rich have connections to plural voting

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○ Majority of votes were cast by men who had more than one vote ○ Romans were masters of the gerrymandering (as mentioned earlier) Church gives us qualified majorities, concerns with procedures, strongest parallel is with elections in the 2nd and 3rd worlds where the idea of a single correct solution to problems (ie. Marxism) that has to be discovered has taken the place of the will of God as necessary, but with the same kind of obsession with uniminity and inability to distinguish dissent from parocy or treason ○ Reflected in the ideologies of various populist movements -- unique single will of the people and anybody who disagrees with the leader is thereby disagreeing with the people Early british elections are the most direct antecedent of what we have in the U.S. b/c colonists brought British representation with them In current American jurists communities have been trumped by equality In many other countries, community remains an important criterion in the drawing of district lines Virtual representation looked at in terms of whether ie. African Americans from here are represented by an African American from there ○ Question of whether democratic balance of a legislature represents accurate representation of the people who have been divided into districts Referendums used in elections to decide policy ○ School budgets have to be approved in a referendum, tax is approved by referendum ○ Referendums decide elections, elections decide who will decide Roughly 50,000 elected people in U.S. ○ Japan and the world are about the same, roughly half a million in France ○ Legislatures of national and local are almost always elected ○ Judges are elected in the U.S. Not just public officials are elected...