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Inadvisability of Imposing Constraints in Proportional Representation Elections

Constraints on Numbers of Electable Candidates:
The practice in some electoral arrangements of prescribing that only a certain number of persons with particular attributes can be elected is an attempt to overcome some of the unrepresentative character of winner-take-all vote-counting systems, and is an unnecessary and undesirable provision to be applied in a quota-preferential proportional representation system, as such PR systems inherently provide a diversity of representation commensurate with the various degrees of support for different points of view. Some constitutions that prescribe the use of quota-preferential proportional representation nevertheless follow the example of those winner-take-all systems and impose such constraints, which amounts to constraining voters in the free implementation of their preferences in favour of a pre-determined and arbitrary outcome.


Examples of Imposition of Constraints: An early example of a constraint applied to override and distort a winner-take-all outcome is the provision in the 12th Amendment to the U.S. Constitution that requires that an elector is constrained in his or her votes for President and Vice-President by having to vote, in at least one of those ballots, for a candidate that is resident in a state other than the one in which he or she is resident. More recent examples include the constraint that Section 28(a) of the Constitution of the Liberal Party of Australia places on the sex of two of the Vice-Presidents of its Federal Council, whereby one must be a male and one a female. The Australian Labor Party also has fixed a minimum percentage of safe parliamentary seats for which female candidates must be endorsed. Even Compass - a UK Labour Party reform group - which partly uses STV counting, includes constraints in its constitution. As elections also include the nomination process, constraints on voters' wishes also appear there in the form of the term limits - fortunately not favoured in Australia - imposed by the 22nd Amendment to the U.S. Constitution.


Confusion about What Constitutes Representation: There is, possibly based on the secondary rather than the primary dictionary definition of the word "representation", an unfortunate confusion between representing the opinions and the will of voters, and merely representing their more obvious characteristics, such as their sex and age, which are not necessarily representative of what they stand for, or how they are likely to act in office. That confusion leads to a  belief in some quarters that the outcome of an election should be more predetermined than it would be if it were left to the voters to the greatest extent possible. This confusion leads to proposals for a requirement that there should be an equal number of males and females in parliaments despite voters having other priorities, as evidenced by their votes. This attitude of constraining voters completely overlooks the fact that, in some circumstances, or for a particular election, a large number of male voters might prefer to have females as their representatives or vice-versa, as those voters see fit.


Preferable Way to Represent a Spectrum of Voters' Viewpoints: A far fairer way to enable a representative body to more faithfully match the spectrum of views of those voting to elect its members is to couple the maximum use of a quota-preferential system of proportional representation with the minimum use of devices that arbitrarily or subtly distort voters' preferences. The history of Australian Senate ballot-paper designs demonstrates attempts to incorporate such devices in our electoral systems. One such device is Group Voting Tickets.

Another distorting device that should not apply is the unnecessary validity provision for the full marking of all preferences on the ballot-paper, however many there are, which is a competely open-ended arrangement that Senator Malcolm Coulston warned of in 1983. In 2013, there were 110 candidates at the NSW Senate poll. It is unreasonable for the law to require voters, in order to cast a valid vote, to rank such a number of
candidates, without inadvertently making quite a few mistakes in their numbering. A much more reasonable provision, which is not open-ended, is partial optional preferential voting, where a ballot paper is valid if a prescribed number of preferences are marked, with that number being no greater than the number of positions to be filled, which has never been more than 12 for full-Senate elections, or 6 for half-Senate elections. The quota-preferential counting procedure will still operate if that prescribed number is fewer than the number of positions to be filled, even to the extent of fully optional preferential voting, where only a single first preference needs to be marked for a ballot-paper to be valid, although there is no guarantee then that votes will be received for as many candidates as there are positions to be filled.

There is great benefit in positive measures for voter-controlled reflection of voters' views such as Robson Rotation, and the provision on ballot-papers of even-handed information such as the requirement of Section 74(3B)(b) of Victoria's Electoral Act 2002 for Legislative Council proportional representation elections for printing on the ballot-paper against each candidate's name the locality each candidate is enrolled at. Ballot-papers should also include a statement of the vote-counting system to be used to determine the result of the vote, so that voters are made aware how their vote is translated into seats. Ballot-papers should show all candidates' names in a consistent, standard manner, so that no candidate is benefited or disadvantaged by titles, post-nominal abbreviations, or any other sign of their being different from other candidates being on the ballot-paper, although showing registered party or independent status in public elections is acceptable. The use of candidates' photographs on ballot-papers - the use of which in Australia, for elections to legislatures, is confined to the Northern Territory - has the effect of moving the emphasis from representing the opinions and the will of voters to merely representing their more obvious characteristics, such as their sex and age.

The practice of flagging, on the ballot paper, the names of incumbents standing for re-election is a crude form of distortion of the electoral process that should be prohibited by the rules governing the election.

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