When countries are undergoing major constitutional change, electoral systems are sometimes chosen in direct negotiations between a governing party and opposition groups or among political parties or factions when a constitution is being written totally anew. These talks usually occur outside the formal rules and procedures for making decisions that govern national conventions and constituent assemblies.
Electoral system choice through negotiations occurs in two conceptually distinct ideal types:
- Negotiated, sometimes called 'pacted,' transitions from authoritarianism to democracy that reform a state, and
- All-party talks to completely reconstitute the state after a period of violent conflict or civil war.
The latter talks often take place within the context of a more wide-ranging peace process in which new electoral laws are but one part of an overall settlement to fashion post-war political institutions.
Negotiated Transitions: Authoritarianism to Democracy
In negotiated or 'pacted' transitions, pressures for democratization have built up in a society and the government agrees to talk directly with opposition parties as a way to alleviate the pressure and peacefully move toward more open, multi-party politics. These types of transitions to democracy are contrasted with those transitions wholly managed and controlled by incumbent governments such as Kenya or Nigeria, or those that result from a popular upswell for constitutional change, leading to the total collapse of the incumbent regime such as Romania. In the course of government-opposition negotiations, the parties bargain over the nature, sequence, and extent of political reforms and often agree to sharing power for a period of time. Negotiated transitions can occur as a result of a series of pacts for incremental change or through one grand pact that spells out the terms of political reform.
Spain's transition to democracy in the 1970s is an exemplary pacted transition. Following the death of Francisco Franco in 1975, the single-party 'Falangist' regime that had governed since Spain's civil war in 1936 was replaced by a multi-party, constitutional monarchy. Talks over political reform occurred between Prime Minister Adolfo Suarez, with the concurrence of King Juan Carlos I, and opposition forces. In these talks, Suarez negotiated with virtually all the major political forces and with the military; eventually, he was able to assure those on the right, including elements of the pro-Francoist ruling party, the UCD, that the reforms would not go too far. Suarez also persuaded those on the left, especially the opposition Socialist party, that the democratization process would be meaningful. Through these negotiations, the parties arrived at a formula for elections by which the opposition parties would be assured that they would have a role to play in the a future system in the context of dismantling the Francoist power structures. While the electoral system was presented in a spring 1977 government decree, it was the outcome of de facto, behind-the-scenes negotiations between Suarez and opposition parties
The Spanish negotiators, in talks between a government commission and opposition parties before the first multi-party elections in June 1977, agreed on a fixed list proportional representation (PR) list system (d'Hondt) for the first multi-party elections, see List PR. The formula and three per cent threshold favoured the two largest parties and over-represented rural areas - each district was initially awarded two seats then the rest were by apportioned by population. PR was chosen for several reasons:
- It would allow all parties to be represented in the new legislature, reassuring the opposition that the reforms would yield meaningful representation;
- It would give slight advantages to larger parties, to discourage splintering of parties, a concern to several factions; and
- Fixed list PR would allow for continued elite decision-making over candidate slates and tight party control over parliamentary members.
The longer-term effect of list PR in Spain was that regional parties were able to extract far-reaching concessions from national parties as they are needed to build coalitions. This facilitates some of the moves toward regional devolution, which seemed to have benefited the stability of the Spanish State. However, the perception that sub-national groups, such as Catalans, wielded undo political influence, has caused some resentment in the rest of the Spanish polity.
Another example of transitional bargaining occurred in Hungary, after the fall of communism throughout Eastern Europe in 1989. As the transition to multi-party democracy unfolded, negotiations occurred among the political parties that quickly formed (or re-formed, as some had existed prior to the advent of Soviet hegemony over the state). These talks produced an interesting agreement for the first multi-party elections in April 1990 that highlight the issues surrounding electoral system choice by negotiation. The 'historical' parties such as social and Christian democrats favoured PR with county lists, which had been used prior to communism in 1945 and 1947, whereas the popular mood and many parties associated with the former regime - including incumbent legislators - favoured constituency representation. A long debate yielded an inability to arrive at a single formula, so the parties opted for a mixed bag: of 386 seats in the legislature, 176 were elected in single member districts (with a second run-off ballot to ensure a majority), 152 from regional party lists (with a four percent threshold), and 58 from national party lists, see Mixed Member Proportional.
Peace Processes
When a country has experienced violent strife or civil war, and when the parties have fought to a bloody stalemate without a clear victor emerging, a peace process may ensue. Peace processes are structured negotiations often facilitated by an outside mediator that result in agreements to drastically reform or wholly create a new political system. Electoral system reforms are often, if not invariably, a key element in constitutional negotiations that accompany peace processes. Electoral reform or the creation of new election systems has been a part of peace process negotiations in countries such as Bosnia, Cambodia, El Salvador, Liberia, Nicaragua, Sierra Leone, and more recently in Guatemala.
For example, when white-minority Rhodesia collapsed in the late 1970s after a protracted civil war, yielding independent Zimbabwe, a key issue in the settlement talks was how white minority representation would be secured in the new order. In 'sham' elections held in 1979 - the first 'one-man, one-vote' poll in the country's history under the terms of an 'internal settlement' negotiated between the government and opposition forces that most observers perceived to be illegitimate - 72 of the 100 members of the House of Assembly were chosen by blacks from a 'common roll' on a party list PR system (a eight-district multimember system), and 28 by whites under the alternative vote (AV) in single-member districts, see Two-Round System.
After the failure of these elections to garner internal and international legitimacy, the 1979 Lancaster House negotiations, which included the principal rebel forces and were therefore more legitimate, produced an agreement which only slightly altered the earlier formula: the reserved white seats were reduced to twenty (and elected by AV) and limited to a transitional period of ten years.
The choice for PR for the 'common roll' and SMD for the 'white roll' reflected a pragmatic compromise for the parties at the table. It was simply practical to use PR for the long-excluded black majority - there was no voters' roll - and SMD for the minority whites, which had used this system in previous 'intra-white' elections. The twenty reserved seats for whites guaranteed representation for them in the post-independence parliament that exceeded their proportion of the total electorate. After the elections of 1985, when negotiation and compromise was no longer necessary, the post-independence regime did away with the reserved seats for whites and the entire legislature is now elected with SMD.
South Africa is a well-studied case that straddles the fence between the two ideal types of pacted transitions and peace processes, and is an excellent case for understanding the dynamics of electoral system choice through negotiation, see South Africa: Election Systems and Conflict Management. When the negotiations over the end of apartheid and white minority rule began in 1990, it was clear that the previous electoral system for intra-white elections - first-past-the-post(FPTP)in single-member districts - would not be acceptable to any of the parties.
There were practical considerations for the rejection of constituency-based electoral systems: there was no common voters' roll, and there were difficulties in delimiting constituencies without an accurate census and with the skewed population distribution that apartheid's segregationist laws had produced. However, there were also political considerations. The white minority parties, especially the incumbent National Party (NP), quickly realised that if FPTP in single-member districts were to be used in elections in which the black majority could vote, white candidates would likely lose in virtually every district because the black population is so widely spread throughout the country. PR would, at least, allow for some representation in the post-apartheid order.
The African National Congress, the principal black majority party, also preferred a PR list system for the country's first elections for political reasons. The ANC's preference for fixed list PR was also strategic: having white parties represented inside the new political system, as opposed to their potential total exclusion, could diffuse some of the tension generated by their inevitable loss of political power.
Another mostly black party, the regionally powerful Inkatha Freedom Party (IFP), however, expected not to win many seats in a national election conducted under national PR; it's popular base was known to be quite limited. Moreover, it was strongly pushing a federal option for South Africa to retain and protect its provincial power base. It threatened to spoil the elections by boycotting - and, possibly, violently resisting - if its strongly federalist position was not included in the final settlement.
In a last-minute compromise to induce the IFP to participate in the heralded April 1994 elections that ended apartheid in South Africa, the ANC and NP agreed to adopt a split national and regional fixed list PR system in which half of the new National Assembly would be chosen from regional lists and half from national lists. Half of the 400 National Assembly/Constituent Assembly members would be chosen from regional lists, and half from national lists. In addition, all the 90 members of the upper house, then called the Senate (since renamed the Council of Provinces), would be chosen from the regional lists.
This compromise, which the IFP ultimately accepted, was sufficient to allow all parties to participate in the election, thereby enhancing the legitimacy of the outcome. The regional/national PR list formula also allowed these three main parties to 'win' something in the poll: the ANC garnered a strong majority in the National Assembly and majorities in seven of nine provinces, and the NP and IFP won legislative majorities in their provincial strongholds. Moreover, all three of these parties were represented in an initial government of national unity, which contributed to the stability of the South African transition.
The system of fixed list PR may be done away with after the 1999 elections in South Africa if the detractors of the system - who argue that it lacks accountability and a meaningful link between members of parliament and the people - have their way. What is unusual about South Africa, in contrast to Zimbabwe, is that bargaining and give-and-take remain the order of the day even though the formal transitional negotiations have ended, so a mixed PR/constituency-based system still seems possible in the long run.
When electoral systems are chosen as the result of negotiations, the outcome reflects a compromise among the interests of the parties at the table. Like other cases of electoral system choice, parties make choices based on their use of 'strategic imagination.' Parties to the talks ask themselves: How do we think the system will work for us, given our expected popularity, the spatial distribution of votes, and the popularity of other parties? Naturally, parties prefer those systems they believe will maximise their share of the votes. The outcomes also reflect the relative power that the parties at the table enjoy. When negotiations produce agreement on electoral systems, it usually means that all the parties to the agreement are satisfied that the system chosen is the best they can get given their own bargaining power and the power and preferences of others.
