While electoral systems are an extremely important institution affecting the way in which a country’s system of government works, traditionally they have not been formally specified in constitutions, the highest source of law. In recent years, however, this has started to change.
Today, a number of countries have ‘embedded’ details about the electoral system in their constitution or in a separate schedule to the constitution. The significance of this for electoral reformers is that constitutionally entrenched laws are usually much harder to change than ordinary laws, usually requiring a special majority in the legislature, a national referendum abuses or some other confirmatory mechanism, which shields such systems from easy alteration.
For example, the South African constitution states that the electoral system for the National Assembly elections shall result ‘in general in proportionality’ and so reform options are limited to PR-type systems unless a constitutional amendment is made.
However, the details of the electoral system are still more often to be found in regular law and thus can be changed by a simple majority in the legislature. This may have the advantage of making the system more responsive to changes in public opinion and political needs, but it also contains the danger of majorities in a legislature unilaterally altering systems to give themselves political advantage.
The opportunities for reform rely on both the legal mechanisms for change and the political context within which calls for change are made. Not all movements for electoral system change are successful. Almost all recent examples of major change have occurred in one of two sets of circumstances.
The first is in the course of a transition to democracy or shortly afterwards, when the whole political framework is ‘up for grabs’.
The second is when there is a crisis of governance in an established democracy. Two examples are the perceived illegitimacy of two successive majority governments elected with fewer votes than their major opponents in New Zealand, and the perception that high levels of corruption in Italy and Japan were endemic to the political system rather than the results of the actions of particular individuals.
Even when there is huge popular distrust and dissatisfaction with the political system, change still needs to be agreed by the current holders of power. Political elites are only likely to act if they can see benefit to themselves from change or if they are frightened of the electoral consequences to themselves of failing to change. Even when convinced, they will, unsurprisingly and almost inevitably, seek to choose a system that maximizes the benefit to themselves. If they are unsure how this can be achieved or if different interests seek different solutions, negotiated compromises may be likely—perhaps involving mixed systems.
However, agreements and changes may not turn out to have the effects intended by their proponents or may produce other, unintended effects. In Mexico, reforms in 1994 designed by the governing party to make concessions to the opposition led to the most disproportional result in later years. The cases of South Africa and Chile illustrate the fact that political realities and the desire of ruling parties to maintain their power and influence can be just as much a block on electoral system reform as legal hurdles. In South Africa there have been widespread calls for an element of local accountability to be built in to the closed-list PR system of large electoral districts under which elected representatives are perceived as detached from their electors. These were reinforced by the majority findings of a presidential commission which reported in January 2003, but the government shied away from changes that would reduce its control over candidate selection and caucus voting behaviour, and declined to entertain reform. In Chile, General Pinochet’s legacy was to rig the electoral system to advantage his allies and it was only a few decades after his removal from power, that the system was finally changed.
In New Zealand, the use of referendums during the process of change resulted initially from a political move—an attempt by the leader of one major party to wrong-foot the other major party during a general election campaign. In the first referendum, the electorate was asked whether it wanted change at all and to indicate its preferred new system from four options. In the second, the chosen new system was pitted against the retention of the previous system. As a result, the new multi-member proportional system was adopted with a clear expression of public legitimacy.
Electoral systems will inevitably need to adapt over time if they are to respond adequately to new political, demographic and legislative trends and needs. However, once a system is in place, those who have benefited from it are likely to resist change. Without a transition or a major political crisis as catalyst, it appears that change at the margins may well be more likely than fundamental reform. In post-conflict transitions, this creates a tension between the practical constraints that may affect the implementation of elections driven for example by the political imperatives of a peace agreement, and the desirability of getting the system right at the beginning. To try to engineer improvements within existing systems, reformers may consider changing district magnitude, threshold levels or quota formulae. Many significant reforms proposed in the past few years have involved adding a List PR element on to an existing FPTP system to create a mixed, more proportional system (e.g. the changes enacted in Lesotho and Thailand).
