Arizona, Obamacare, and SCOTUS elections

The U.S. Supreme Court handed down two momentous decisions this week. Firstly, in Arizona v. United States, it gutted much of Arizona’s draconian immigration law (SB 1070) which gave state law enforcement the power to stop anyone and ask them to prove their status as a citizen or legal immigrant. The Supreme Court struck down the more heavy-handed provisions as intruding on powers constitutionally granted to the Feds by a series 5-3 and 6-2 votes (Kagan recused, and the other three Democratic appointees were joined by Roberts and Kennedy, and, on one provision, Alito). They did, however, unanimously agree on the constitutionality of the stop-and-search provisions, and the fact that the law clearly targets Mexicans and Mexican-Americans doesn’t matter, as a series of precedents going back to the mid-1970s (damn Nixon appointees!) have made it virtually impossible to get any law struck down as violating the Fourteenth Amendment on the grounds that it is applied in a racist manner.

The Arizona law is part of an upsurge in anti-immigrant and anti-Latino/a rhetoric on the American right. This upsurge began seemingly for no reason in 2006 (although it did conveniently distract from the Republicans’ unpopularity at the time), and quickly reached the point where prominent conservative bloggers were accusing politicians from their own side of selling out American’s interests. (In one memorable example, Michelle Malkin displayed on her website a 100-peso note depicting President Bush with a moustache and wearing a sombrero.) In the last two years, Arizona and Alabama have enacted similar laws purporting to give state officials the power to police immigration matters and judging by the number of states which filed amicus curiae briefs in support of Arizona (nine, plus the Northern Mariana Islands), more could be planning similar crackdowns.

The decision in Arizona v. United States will likely only be a symbolic one for immigrants and their allies. The same administration which took Arizona to the nation’s highest court has deported one million undocumented immigrants (mostly Latino/a) in just over three years. Earlier this month, it defended in court armed federal officials who pointed a gun to the head of an eleven year-old Latina girl during a drug-related raid. And then there’s the Fast and Furious-gate scandal, in which D.C. has been found to have been fuelling the drug-related border violence which many Mexicans move north to get away from. The severity of the anti-immigrant measures taken by the Obama-Brewer axis has ensured that net migration from Mexico to the United States has fallen below zero. It will take more than the striking down of parts of a state law to bring back the glory days of the poor, tired, huddled masses.

The second case was the one regarding Obamacare. I predicted that the provision requiring virtually every American adult to purchase health insurance would be upheld as permissible under the Commerce Clause by a margin of 6-3 (the four Democratic appointees being joined by Kennedy and Roberts). The result was quite different: 5-4 (Kennedy dissented), but the provision was justified under Congress’ power to tax despite it violating the Commerce Clause. Most of the rest of the law stays in place.

I read in the weeks leading up to the decision that some of the conservative justices might uphold Obamacare because they could endanger certain Republican policy ideas by asserting and strengthening the Commerce Clause. It seems that Chief Justice Roberts found a way around this problem by endorsing the idea of the mandate as a tax, rather than as a regulation of interstate commerce; because of his hedging, there is a 5-4 majority against Obamacare’s compliance with the Commerce Clause. Watch out for a future liberal-leaning SCOTUS striking down a Republican administration’s efforts to implement school vouchers or health care vouchers or to privatise social security on this ground.

The debate around the case has been excruciating. Liberals have put forward conceptions of the rightful powers of the federal government which include compulsory military service, something which their ideological forebears risked life and limb protesting against in the 1960s and 1970s. They have also found themselves defending a law which forces people to buy a product from the same large corporations they accuse of profiteering. Conservatives have opportunistically opposed this expansion of Washington’s reach, but seem to forget about the Commerce Clause when it comes to enforcing reactionary social mores. (Case in point: Justice Scalia, who concurred in Gonzalez v. Raich that the Feds could stop California from legalising marijuana cultivation for private consumption, but seven years later finds Obamacare unacceptable in its entirety.) In the end, the nation’s highest court has handed down an ambiguous decision which somewhat protects its (and its Chief Justice’s) impartial reputation and avoids accusations of attempting to influence the upcoming presidential election, while providing for many unintended consequences down the track.

The controversy surrounding Obamacare has caused many to rehash the old debate about judicial interference in public policy matters, a debate which has moved in and out of the forefront of American life since Marbury v. Madison. President Obama himself weighed into this a few months ago, tentatively suggesting that the will of the legislative branch should be considered alongside any constitutional concerns that the Justices might have about the law. For this, he earned rebukes from the same conservatives who have built an entire literature about ‘judicial activism’. The conservative critics of so-called ‘judicial activism’ and the liberals who fret about the supposed partisanship of the five Republican-appointed SCOTUS Justices (but never the partisanship of their four Democratic-appointed colleagues) have in common a conception of the role of the judiciary which is elitist, apolitical, and unrealistic. They demand that judges be impossibly impartial and insulated from the political climate around them.

The bête-noire of those with such a conception of the judiciary is judicial elections – one of those peculiarly American devices which a certain type of cosmopolitan, New York Times-reading American finds embarrassing and provincial. Just look at this article in the aforementioned newspaper, which talks gushingly of the exams that French magistrates must pass before serving, which are contrasted with the judicial elections used in some U.S. states. Three members of Iowa’s Supreme Court recently received the John F. Kennedy Profile in Courage Award for legalising same-sex marriage and then being voted out of office. Electing judges, according to its critics, invites partisanship, populism, and demagoguery, but no-one advocates abolishing elections to the legislative and executive branches for the same reason. The Supreme Court, by contrast, is chosen by presidential nomination, American Bar Association vetting, and senatorial confirmation, but still throws up partisan appointees (the current 5-4 split), justices subject to political pressure (the New Deal-era ‘switch in time that saved Nine’), unqualified nominees (Harriet Miers, Robert Bork…), and morally outrageous decisions (Dred Scott, Plessy v. Ferguson, the WWII internment of Japanese-Americans…).

Judicial elections emerged in the United States during the Jacksonian era, when they were seen as necessary to preserve the independence of the judiciary against the legislative and executive branches. Nowadays, special interests such as the various state Bar Associations lobby for their abolition in order to insulate judges from public opinion. The result of successful campaigns to abolish judicial elections is that the politics is simply moved behind closed doors, and partisan elected officials are supposed to impartially select meritocratic judicial nominees. Needless to say, appointing judges doesn’t remove the politics of judicial selection nor does it result in better adherence to the laws and constitutions of the several states. Opponents point to unsavoury electoral contests in which judges have campaigned on their record of executing more criminals, but never explain how this is more disturbing than demagogic, ‘Tough on Crime’ appeals made by candidates for other branches of government (such as the Willie Horton ad, or Bill Clinton suspending his 1992 campaign to sign the death warrant of a mentally retarded African-American man).

If the Supreme Court were elected, all Americans would be able to determine the direction of their highest court’s jurisprudence, not just the special interests which have the power to sway the vote of one of the hundred members of the Senate. If the Founders had instituted federal-level judicial elections from the beginning, we would probably have avoided Dred Scott, corporate personhood, Plessy v. Ferguson, the various cases affirming state-level eugenics programs, and the post-1970s rise of mass incarceration of black and Latino men. We could triple the Court’s size (to twenty-seven) and elect them for renewable six-year terms. Parties would put up slates of candidates (the literature suggests that partisan judicial elections are better) and a nationwide vote using an open-list form of proportional representation could be used. This way, the interpreters of the constitution would be chosen not by the President, Senate, and American Bar Association, but by the people themselves.

She’s the blushing girl from Flushing / the Nanny named Bloomberg

The New Republic has always been one of the loudest voices for technocratic, elitist, big-government liberalism in the United States. Its founder, Herbert Croly, summed up the magazine’s ideal with the phrase “Hamiltonian means to achieve Jeffersonian ends”, but the America he helped to create is decidedly lacking in Jeffersonianism. It comes as no surprise, then, that his magazine is cheerleading the latest manifestation of Rooseveltian progressivism – the nanny state. In an article entitled ‘Nanny Dearest: In defense of Bloomberg’s war on soda’, Timothy Noah lays out the case for supporting the ban on soft drink containers larger than sixteen ounces by the Mayor of New York and darling of the professional centrists, Michael Bloomberg.

Noah’s argument goes something like this: the 1960s left opposed ‘paternalism’ (whether it be state, corporate, religious, etc.), the right adopted this rhetoric and used it to justify ‘free market’ economic policies, therefore modern-day liberals should support the nanny state because right-wing libertarians talk about freedom. (He even adds a quote from a Fox News journalist opposing Bloomberg’s measure.) He singles out selling organs, drugs, and prostitution as things he wants the state to ban or discourage, overlooking the good arguments for legalising all three.

The scariest part of the article is where Noah tries to argue that his support for nanny-statism is different from social conservatism. “I disagree with conservative aspirations to install the nanny state in my bedroom, but I wouldn’t necessarily begrudge the state its power to play moral cop elsewhere,” he writes. The problem with this is that using the state to change people’s diets is social conservatism, regardless of whether its loudest supporters situate themselves on the left of the political spectrum. Strip clubs, for example, are equally illegal in Saudi Arabia (due to it being an Islamic theocracy) and in Iceland (where they were banned by a centre-left government on feminist grounds); what matters is not the motivation, but the fact that freedom is being denied. Similarly, the fact that today’s experiments with taxes on alcopops are not driven by the nativist prejudices which fuelled historical Prohibition doesn’t make them any less authoritarian.

For a social and civil libertarian like myself, Noah’s entire mindset is troubling. To him, freedom needs to be thrown under the bus whenever a public health problem arises that technocratic liberals want to solve. (And need I mention what horrors arose during the twentieth-century whenever the do-gooders decided that they knew what was best for the public’s health – eugenics, sterilisation, the system of chemical castration which drove Alan Turing to suicide…) To Noah, the state should “play moral cop” and “define the nation’s collective values”. And no matter how much he distances himself from conservatives, ascribing those role to the state plays right into their hands: the idea of the state as moral policeman and definer of collective values gave America laws against flag-burning, prayer in public schools, anti-abortion laws, discrimination against LGBTs, bans on interracial sex and marriage, and the Arizona and Alabama immigration laws.

The nanny state is simply incompatible with the values of 1776 and 1789. Not only does it directly infringe on the freedom of the individual to make her own moral, lifestyle, and dietary choices, but its existence is owed to the anti-humanist turn in statecraft which has arisen since the rise of neo-liberalism. The first nanny-state measure could be said to be the legislation enforcing the wearing of seatbelts by the (Liberal) Bolte government in Victoria in 1971, and the phenomenon is most pronounced in those jurisdictions most soaked in neo-liberal ideology: Reagan’s California, Thatcher’s Britain, and Bloomberg’s NYC. The justifications for these measures are always phrased in the language of cutting costs and maximising profits, such as when obese people are spoken of as a drain on the public health care system. If we are to overcome the twentieth century’s plague of authoritarianism and move from the ‘administration of things’ back to the ‘government of men’ that the Enlightenment-era revolutionaries envisaged, the nanny state must be destroyed.

Film review: Downfall

The 2004 German film Downfall (Der Untergang) is perhaps best known not for its content but for its status as the source of the twenty-first century’s quintessential viral meme, the ‘Downfall parody’ (my favourite: “Michael Jackson is dead?!”). As for the film, its production and release caused a sense of national unease in Germany, for no German cast and crew had ever portrayed Hitler as so human: complimenting his secretaries, loving his dog, walking with his left hand behind his back so as to conceal the onset of Parkinson’s Disease. That this was so controversial is unfortunate: depicting history’s villains as singularly amoral is not the means to ensure that their crimes aren’t repeated, and the horrors of Nazi Germany were carried out not by Adolf Hitler alone but by the entire rank-and-file of the state, party, and military.

Downfall concerns itself primarily with the events in Berlin in April 1945, when Soviet troops were advancing on the city. The Nazi high command is divided as to what to do: Hitler wants to stay and fight, but others (including a general who has already made contact with General Eisenhower) believe that the West will refuse to allow the Soviet capture of Berlin. The film captures brilliantly the contrast between the Führer’s belief in an eventual German victory and the despair of his inner circle, who worry about his mental state and accept the inevitable, but fail to confront him directly. The famous scene which is used in Downfall parodies is an illustration of this: Hitler accuses his generals of stupidity and of standing in the way of his dreams. He is told countless times by those closest to him that he ought to leave the city, but his stubborn refusal presages the final days in the bunker that the film depicts.

The Hitler portrayed in Downfall (by Swiss-German actor Bruno Ganz) navigates an inner conflict between German nationalism and contempt for the German people. While chatting with Albert Speer in the days prior to his death, he prides himself on his extermination of the Jews from Germany, yet in the next sentence describes Germans as failing to rise to his dreams for their country. He understands that some in the West still see his regime as a potential bulwark against communism, but as Soviet troops are advancing toward his bunker, he engages in a bit of noble-savagism, predicting that westerners will be beaten by “the disciplined people of the East”. Throughout his final days in Berlin, he speaks of defending a society whose values he clearly loathes. Looking over his plans for remaking the city, he tells Speer that his Reich would be worthless if it were just full of shopping malls; he dreams of art and culture, but also of a world ruled by a set of values that is militaristic and dismissive of the liberal, democratic, republican, and egalitarian heritage of western civilisation. In these scenes, the seemingly contradictory mentality of 1930s fascists is outlined perfectly: they combined the reactionary feeling of Romantic nationalism with the conceit of a parvenu class of technocrats who just knew that they were the rulers their subjects had been waiting for.

The film’s greatest contribution to our understanding of history is in its focus on the bunker. Hitler alternates between detailing his dreams of world domination, bemoaning the incompetence of his generals, and morbidly discussing the most effective suicide method (shotgun in a throat soaked in gin, he reckons). Downfall doesn’t explore Nazi ideology, preferring to detail the court politics which were still going on; even with the situation looking as bleak as it did, Hitler rearranges the Luftwaffe command to favour those loyal to him, and descends into rage when he finds that Hermann Göring has offered to take over his leadership, considering it a thinly-disguised coup d’etat attempt. In a Guardian review printed at the time of the film’s release, Britain historian Ian Kershaw, one of the world’s most formidable students of the Nazi era, praised the depiction of the bunker scenes for their historical accuracy – the film’s makers have clearly done their research.

Ultimately, Downfall is a film which asks to be judged not just on its historical accuracy or its cinematographic agility, but on how it has shaped popular understanding of Nazism, particularly in Germany. Downfall is most in tune with Hannah Arendt’s scholarship on the matter: the idea of Nazism as the cumulation of evil acts committed by ordinary people is familiar to anyone who has read her works on the trial of Adolf Eichmann. She would appreciate the way in which junior officers carry out their orders without thinking, and the film’s portrayal of a ‘human’ Hitler is very Arendtian. Prior to its release, the fear in Germany was that it would depict Hitler so sympathetically as to provoke a rise in neo-Nazism; most reviewers agree, however, that Ganz’s Hitler is so true to life as to allay those fears, as the Führer is exposed as a paranoid, self-pitying fantasist, and his inner circle are shown up for their deference to his logistically impossible and militarily foolish orders. The film still provoked historical hand-wringing, however: the follow-up criticism was that it assuaged Germans’ guilt over Nazi atrocities by showing civilians as being brutally victimised by SS thugs. It seems that when it comes to the historiography of the Third Reich, you can’t please everyone.

Downfall is an epic film which doesn’t get too many things wrong. It may not give the viewer an account of the rise of Nazism or the lives of ordinary Germans under its rule, but it doesn’t pretend to: this is the story of Hitler’s final days in the bunker, and of the courtiers and subordinates who tried to reconcile their loyalty to him with saving themselves. If I had one criticism, it would be that the film doesn’t talk much about how the Nazi leadership tried to shape the post-war world, apart from one mention of a general trying to do a deal with Eisenhower. After Hitler’s suicide, everyone seems to either give up or recklessly resist the inevitable Russian capture of Berlin; but we know that senior SS officers were arranging sunny futures for themselves in South America while the Nazi movement dissipated so thoroughly that it produced only one guerrilla attack on Allied forces during the occupation and was never heard from again.

There are many ways in which post-war (West) Germany could have dealt with its Nazi past. The path it chose was to build its foreign and defence policy around the avoidance of any appearance of German exceptionalism. To this end, it has always acted multilaterally through the EU and NATO, accepting American leadership of the West and joint Franco-German pre-eminence in Europe while its economy rose to be the world’s third largest. Beginning with the Balkan conflicts of the early 1990s, however, the ghost of Nazism began to play a different role in German political debates. Previously, the country had avoided sending its military anywhere, but with every new dictator (Milosevic, Saddam, Gaddafi) portrayed as the second coming of Hitler, the advocates of ‘humanitarian intervention’ had no trouble convincing Germany to commit to their missions (except Iraq, where solidarity with France outweighed the Saddam-as-Hitler argument). The personality who most symbolises this shift is Green MEP Daniel Cohn-Bendit, whose formulation that “never again Auschwitz” trumped “never again war” could serve as a slogan for modern German foreign policy. While post-war Germany used its aversion to nationalism to develop some positive ideas, such as Jürgen Habermas’ writings about ‘constitutional patriotism’, these were drowned out by the jingoistic atmosphere of the post-unification period and by the liberal internationalism of the likes of Cohn-Bendit.

This, then, is the true legacy of Nazi Germany: a German state whose raison d’être has become the suppression of any deviation from the liberal-democratic status quo. It spies on its own citizens suspected of engaging in extremist politics (of both left and right); it throws its geopolitical weight behind the Wilsonian dreams of the left-liberal chattering classes; it serves as the bedrock of a system of European integration which has lost any pretence of respecting the democratic will of those Others (Greece, Italy, Ireland) whose economies fall foul of the ratings agencies; it acts as an unquestioning defender of Israel; and its anti-Nazi guns are too easily turned leftwards, morphing into McCarthyism. Two recent events have exposed the dark side of this culture: the condemnation of intellectual Günter Grass over his authorship of a poem criticising Israeli foreign policy, and the Israeli embassy’s snooping into the affairs of the Pirate Party, under the pretence of checking whether it contains any neo-Nazi activists (if any did join, the joke would be on them: the Pirates’ national leader is a Jewish woman). Just as membership in the Nazi ‘cause’ allowed drifters and malcontents like Adolf Eichmann to carry out acts of injustice without regard for their own agency, the German state evades responsibility by hiding behind impersonal forces such as the logic of neoliberalism and the Fukuyama-ist belief in the triumph of liberal democracy.

Downfall is the perfect counterpart to Sophie Scholl – The Final Days, and provides a glimpse into the lives of those who persecuted the likes of Scholl. (Indeed, there are a few actors who appear in both films, and Sophie Scholl is mentioned in the narration at the end of Downfall.) By depicting Hitler as something other than a sexual deviant or a monster whose evil deeds are beyond explication, it enlightens as well as entertains, and it manages to combine the manic bunker scenes with sympathetic portrayals of the civilians on the outside, caught between Soviet bombing and Nazi indifference to their suffering. Downfall is not just a classic film, but one which serves as a cultural signpost regarding attitudes in Germany about the country’s past, and whose status cannot be diminished by its trivialisation in online parody videos.

Musings on electoral systems: proportional representation, Swiss-style

Switzerland adopted proportional representation for federal elections in 1919, after a ballot initiative passed on the third attempt. The system used is a variation on the open-list proportional system common in Europe; but whereas most such systems allow the voter to cast one vote for either a party or an individual candidate, Switzerland adds complexity to maximise voter choice.

In a Swiss federal election, parties present one or more lists of candidates, ideally comprising as many candidates as there are seats to be filled (up to thirty-four in Zurich, the largest canton). Lists can be combined together, forming an apparentement, the result of which is that their vote totals are counted together, and thus their remainders over their original quota of seats can be combined to earn another seat. The apparentements also give voters an idea of which other parties a party can work with; for example, elections in Geneva are dominated by a Socialist/Green/Labour bloc and a Liberal/Radical/Christian Democrat bloc. Lists presented by the same party can also form a sous-apparentement within an apparentement. For example, parties can nominate all-female and all-male lists, a separate list for their youth branch, a list of candidates appealing to expatriate voters, or different lists for different regions of a canton.

The Swiss voter has as many votes as there are seats to be filled; for this example I will use eleven, Geneva’s representation in the National Council. She can cast a straight-ticket vote (vote compact), giving eleven party votes to the party of her choice and one personal vote each to its candidates. She can cross out (latoisage) the name of a disfavoured candidate on her party’s list, giving eleven party votes to the party but only ten personal votes to each of the non-eliminated candidates. She can cross out one candidate on her party’s list and give a second vote (cumul) to a favoured candidate; this gives eleven party votes and eleven personal votes (two to one candidate, one to nine, and none to one). She can replace a crossed-out candidate on her party’s list with a candidate from a different list (panachage); thus casting ten party votes for her original party and one for the party of the written-in candidate. And she can combine all these three methods on one ballot.

A list’s vote is the sum of personal votes received for its candidates and unused personal votes on its ballots (for example, when a voter crosses out a name but doesn’t replace it with any other candidate or a second vote for another candidate). The seats are distributed proportionally between all stand-alone lists and apparentements, and then between sous-apparentements and between their component lists, all without any electoral threshold. The seats won by each list are given to the candidates with the most personal votes.

The Swiss system allows the voter maximum freedom of choice: she can cast votes for candidates on different lists and cast double votes for candidates she particularly wants to see elected, and her influence on the ordering of the candidates on a list is in proportion to how many votes she cast for that list. By ensuring that a personal vote cast for a different party’s candidate means a party vote is cast for that list, the system prevents a voter from influencing another party’s candidate selection without throwing their lot in with that party. This stands in contrast to open primaries in the United States, where independents and supporters of other parties can vote in a party’s primary, then vote against it in November. (This can be the source of mischief, as when some Democrats tried to boost Rick Santorum’s chances against Mitt Romney this year.)

The system of apparentements means that voters can support a small party which is unlikely to win seats without wasting their vote, provided it is allied to larger parties. In the 2011 federal poll in Geneva, for example, the Greens retained their seat despite polling a lower percentage of the vote than in the previous election. The reason was the surge in support for smaller left-wing parties, who won no seats themselves but who helped the Socialist/Green bloc to increase its vote share. Perhaps the most fascinating aspect of Switzerland’s electoral system, however, is the way in which parties run multiple lists. The youth branches’ lists seem a good way to get more young people into elected office and would give the young activists valuable experience in running an election campaign. The expatriate lists look like a better way to ensure expatriate representation than the French and Italian experiments with (heavily gerrymandered) overseas constituencies, and the concept of sous-apparentements could be useful for promoting cross-ethnic parties in divided societies (for example, a party in Northern Ireland pooling the votes of a Protestant list and a Catholic list).

How would the Swiss system work if exported to the United States? Let’s assume a larger House of Representatives – I like the idea of one thousand members. The seats would be allocated to the states: Wyoming, the smallest, would have two; California would have over one hundred and twenty, and might need to be broken down into smaller regions. Primaries would become unnecessary, as all party factions and interest groups could be accommodated either by places on the main party ticket, or by the use of the sous-apparentement system – a list of establishment Republicans and a list of Teabaggers could pool their votes while retaining a certain distance from one another. In any case, the ability to replace candidates on lists and to cast double-votes for others would replicate the effect of primaries by allowing a party’s voters to determine which of its candidates are elected. With Duverger’s Law beaten, the Democratic-Republican duopoly could be replaced by a two-bloc system (for example, a Democratic-Green coalition might face off against a Republican-Libertarian-Constitution entente, and unhappy members of the current major parties could gravitate towards new or currently marginalised parties). And without wasted votes or the spoiler effect, no American voter need worry that casting a third-party vote will do a Ralph Nader to their preferred major party.

California Primarying (On Such A Winter’s Day)

Last fortnight, California held its first primary elections held under the ‘Top Two’ electoral system, approved by a ballot initiative in 2010. The system has been welcomed by those who bemoan partisan gridlock in American politics, such as Norm Ornstein, the co-author (with Thomas Mann) of several books on the functioning of Congress. Already, the system has produced some weird results – several all-Democratic and all-Republican runoffs, the Democrats missing the runoff in a swing seat in San Bernadino County because of vote-splitting, and noted birther Orly Taitz having a decent shot at the gubernatorial runoff.

The top-two runoff is most commonly associated with French presidential elections (parliamentary and département elections there are also held over two rounds, but more than two candidates can make the runoff). It was exported to many French colonies, and in the United States, it has only been used in Louisiana (fittingly, given its French heritage). In this post, I will draw from the French and Louisiana experience to explain why the ‘Top Two’ system is not a good choice for California.

The Le Pen/Duke problem: both France and Louisiana have had a candidate of the far-right make the runoff in a low-turnout election filled with multiple candidacies. In Louisiana in 1991, division among Republicans led Klansman David Duke to clinch a spot in the gubernatorial runoff against veteran Democratic pol Edwin Edwards. (When asked if there were any similarities between him and his opponent, Edwards remarked that “we’re both wizards between the sheets”.) In France in 2002, no-one in the sixteen-candidate field received more than twenty percent of the vote, the top three being incumbent Gaullist President Jacques Chirac (19.9%), National Front leader Jean-Marie Le Pen (16.8%), and incumbent Socialist PM Lionel Jospin (16.2%). Jospin’s problem was the division among left-wing candidates – the combined vote of the five parties in his parliamentary coalition was over thirty percent. (Due to the threat of causing another such electoral earthquake, two of those parties have never since run presidential candidates.) Both these elections were walkovers for the mainstream candidate, while an extremist was given some measure of respectability by appearing beside them in the runoff. If Orly Taitz’s campaign had picked up more momentum, California could have witnessed a similar showdown this year.

The ‘Bonnet blanc ou blanc bonnet’ problem: in 1969, thanks to a poor showing by France’s left (the Communist candidate ran third and the Socialists, without François Mitterrand as their standard-bearer, couldn’t get into double digits), the presidential runoff was contested between two rightist candidates: George Pompidou of the Gaullist UDR and Alain Poher of the Christian democratic MRP. In the second round, the Communist candidate, Jacques Duclos, refused to endorse, declaring the two front-runners to be “bonnet blanc ou blanc bonnet” (the equivalent English phrase is ‘six of one and half a dozen of the other’). The result was lower turnout, most markedly in working-class areas where the Communist Party was strongest. Similarly, Louisiana most recently experienced an all-Democratic gubernatorial runoff in 1987, but runner-up Edwin Edwards withdrew in favour of first-round winner Buddy Roemer (who switched parties during his term). A few Californian races will likely experience something similar in November: two runoff contenders of the same party leading to low turnout from supporters of the other, leading in turn to effects on up-ballot and down-ballot races.

The Chirac/Giscard problem: after seven years in office, Valéry Giscard d’Estaing of the UDF (a mélange of Christian democrats, classical liberals, and rural conservatives) was challenged for the leadership of France’s right by Chirac, his former prime minister, who had resigned in 1976 over fiscal policy differences (he wanted Keynesianism, Giscard austerity), and spent the next five years passive-aggressively acting as a quasi-opposition figure, including denouncing the UDF as the ‘foreign party’ (parti de l’étranger) for its pro-European policies. In 1981, he jumped into a four-way contest against Giscard, Mitterrand, and Communist Georges Marchais. (The four main parties were so evenly poised in terms of vote share that a repeat of 1969 – a Giscard/Chirac or Mitterrand/Marchais runoff – seemed possible.) After placing third, Chirac refused to make a full endorsement of Giscard, saying that he would personally vote for him but wouldn’t recommend his supporters do so. With three of the last four opinion polls giving a 50-50 tie in the runoff, Chirac’s non-endorsement endorsement certainly made the difference. Instead of the two-week interval in French presidential polls, disgruntled Californian politicos have five months to ‘do a Chirac’ on erstwhile allies who’ve beaten them into the runoff.

The legitimacy problem: when France held its first direct presidential poll in 1965, Charles de Gaulle and François Mitterrand were both able to poll above thirty percent in the first round. By contrast, no-one hit twenty percent in 2002, or thirty percent in 2012. (Nicholas Sarkozy managed 31.2% in 2007, thanks largely to an absence of other mainstream right-of-centre candidates.) The fragmentation of the electorate means that a repeat of 2002 is possible: indeed, polls in 2010 had Le Pen’s daughter Marine in a virtual three-way tie with Sarkozy and Dominique Strauss-Kahn. California will see members of Congress elected this year after having scored less than a quarter of the first-round vote, an outcome which their opponents will be able to hold against them for the length of their terms.

The Chirac/Barre/Balladur problem: another consequence of the two-round system is that even when two candidates from the mainstream left and right face off, their party affiliation can be uncertain. Giscard or Chirac could have been the right’s runoff candidate in 1981, and Chirac was almost successfully challenged in 1988 (by the UDF’s Raymond Barre) and in 1995 (by dissident Gaullist Édouard Balladur). When the Greens almost overtook the Socialists at the 2009 European elections, it was conceivable that a similar dynamic might play out on the French left in 2012, but the Green surge was short-lived. California’s Democrat-GOP duopoly means it will avoid the inter-party effects of this problem, but this year’s Senate runoff is reminiscent of French elections. Incumbent Dianne Feinstein was the overwhelming choice of Democrats (49.5%), but the Republican field was splintered, and Elizabeth Emken goes into the runoff having obtained only 12.6% in the first round; Emken now has to win over the supporters of the other Republican candidates who collectively polled double her vote, while Feinstein’s fellow Democrats polled one-seventh of her total.

In addition to these criticisms, I will add a few general negatives of the ‘Top Two’ system as used in California. Firstly, because a candidate winning a majority of the first-round vote can’t be declared elected yet (a member of Congress can’t be elected until November, hence why Louisiana was forced to shift its ‘primary’ to election day and its runoff to December), a runoff will be held in districts where the candidate has already virtually been decided. Nancy Pelosi, for example, polled 74.5% in the San Francisco-based Twelfth District, but faces a Republican challenger in the runoff who received 14%. In some districts, there were only two candidates in the first round, and the same two will feature in a rather pointless runoff.

Secondly, the multiplicity of candidates with the same party affiliation makes it harder for voters to determine the ideological position of each candidate. The major parties are endorsing candidates, but that information is buried in the back pages of official voter guides. Political scientists have forever argued that strong parties make for a strong democracy, but California’s system encourages inter-party rivalry and random, uninformed choices. For example, I don’t believe that two percent of San Franciscans are LaRouchites – but a LaRouchite candidate running as a Democrat earned two percent of the vote there; Democrats who wanted to send a message to Nancy Pelosi had three other candidates to choose from, and little way of knowing that one was an extremist.

Finally, the supporters of the ‘Top Two’ system seem to hope that centrists will be successful by appealing to voters from both parties – but remember that this electoral system propelled David Duke and Jean-Marie Le Pen to runoffs. Even if it were true, the usual suspects, such as the state’s moderate Republicans, welcome it is a means of diluting the supposed menace of partisanship. Proposition 14, which won every county in the state except hyper-Democratic San Francisco and hyper-Republican Orange, was produced by the same technocratic, anti-political mentality that gave us Americans Elect, Unity08, and No Labels. The people of California have been sold a panacea for the state’s political woes which creates more problems than it solves.

The ‘Top Two’ system suffers from the usual defects of majoritarian systems: the marginalisation of minor parties, the role of ‘spoiler’ played by a successful one, and the incentive for parties to choose an inoffensive, moderate candidate (usually white, male, straight, middle-aged, etc.) For these reasons, I would recommend that every jurisdiction on Earth adopt some form of proportional representation; failing that, the Alternative Vote is the best majoritarian method, as it maximises voter choice and prevents votes from being ‘wasted’. But if California insists on the two-round system, it might consider the variant used in parliamentary and local elections in France: the top two qualify for the runoff, plus any others who poll over a certain threshold (10% or 12.5%). Candidates from the same side of politics are able to withdraw in favour of the other, making most runoffs a straight two-way contest: 417 out of 557 parliamentary seats will see a left-right duel in the runoffs there on June 17.

In the past, California has experimented with measures designed to reduce the influence of party hierarchies on nominations. Between 1913 and 1959, candidates could run in multiple primaries – like so many well-intentioned but backfiring reforms, it dates from the Progressive Era, when reformers sought to end the Southern Pacific Railroad Company’s influence on the state’s politics. This is why Earl Warren appeared on the 1946 gubernatorial ballot as a Republican, a Democrat, and a Progressive, and how Richard Nixon ran third in the Democratic primary on his way to the Senate in 1950. Republican candidates regularly won Democratic primaries (the reverse happened less often), then governed as if tied to neither party. Today, California faces a similarly bleak future: runoffs between same-party candidates, uncompetitive elections, weak parties, and a candidate like Orly Taitz producing a David Duke-/Jean-Marie Le Pen-style shock.