A MEMORABLE DISCUSSION
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Walter Costa Porto - Professor of Constitutional and Electoral Law at the University of Brasilia; former Minister of the Superior Electoral Court; author of O Voto no Brasil and Dicionário do Voto, among other works
Vote theoreticians usually bring up a memorable discussion that involved two great English liberals, Walter Bagehot and Stuart Mill, during the second half of the 19th century.
The first of the contenders relied exclusively on functional reasons to justify the majority system in force in Great Britain and to suggest that the proportional representation, although incomparably more just, threatened the government's capacity to act.
Joaquim Nabuco, a Brazilian writer and politician known as one of the greatest expressions in the cultural life of Brazil, praised Bagehot in his book of memoirs. Nabuco said that he was able to understand "the hidden springs of the English Constitution" (1) through Bagehot's book The British Constitution, published in 1867. (2)
Nabuco referred to the ideas he attributed to Bagehot as follows:
"Cabinet government, the cabinet originated in the Chamber, which is entitled to dissolve the Chamber, ministerial dissolution (not the Court only, nor the Crown with a Cabinet opposed to the Chamber); in sum, all of that which became common place after that small book, but which he was the first to reveal and establish."
He also referred to the designations that are "used by everybody nowadays, but that are his, Bagehot's." (3)
Bagehot's geniality mark would then be the fact that he was the one to bring up these ideas, which later became so common.
In investigating the English electoral situation, Bagehot also introduced subtle assessments that even today are impressive, although they never had the same repercussion in the 20th century. He said there are two ways of establishing electoral districts: First, the legislation could organize them, defining the qualifications that would allow a vote in a certain district - these would be mandatory constituencies; second, the legislation could let the electors organize themselves in districts - which would form voluntary constituencies. According to him, the legislation could read:
"all the adult males of a country shall vote, or those males who can read and write, or those who have 50 pounds a year, or any persons any way defined, and then leave those voters to group themselves as they like. Suppose there were 658,000 voters to elect the House of Commons; it is possible for the legislature to say, "We do not care how you combine. On a given day let each set of persons give notice in what group they mean to vote; if every voter gives notice, and every one looks to make the most of his vote, each group will have just 1000. But the law shall not make this necessary--it shall take the 658 most numerous groups, no matter whether they have 2000, or 1000, or 900, or 800 votes-the most numerous groups, whatever their number may be; and these shall be the constituencies of the nation." (4)
Bagehot stated - and so vigorously! - that the votes of the minorities are left out in the compulsory form of constituencies.
In the city of London, he said, there are many Tories, but all the representatives are Whigs. Every London Tory, then, is by law and principle not represented. His city sends to Parliament not the member he wished to have, but the representative he wished not to. Under the voluntary system, the London Tories could group, constitute a constituency and choose their representative.
His complaint continued:
"In many existing constituencies the disfranchisement of minorities is hopeless and chronic. I have myself had a vote for an agricultural county for twenty years, and I am a Liberal; but two Tories have always been returned, and all my life will be returned. As matters now stand, my vote is of no use. But if I could combine with 1000 other Liberals in that and other Conservative counties, we might choose a Liberal member." (5)
Since then, this is the criticism attributed to compulsory constituencies: the inequality in the granting of elective positions. If Bagehot had been born later, he would still regret the manipulation in the formation of constituencies, the gerrymandering, which has been denounced so many times. (6)
"I could" - Bagehot continues - "reckon other advantages, but I have to object to the scheme, not to recommend it," he explained with simplicity. And he indicated that the Parliament's function was dual: the majority has the mission to support the Cabinet in the conduction of government programs; the minority has the goal of criticizing these government acts. The first mission is the most important; therefore, whatever the merits of the proportional model may be, and however real is its gain in terms of representative justice, it should be cast aside in the name of the capacity of government action. (7)
Stuart Mill, on the other hand, highlighted the "transcendent advantages" of the proportional representation. The ideal of justice captivated him. He regretted the government "of privilege, in favour of the numerical majority, who alone possess practically any voice in the State", with a "complete disfranchisement of minorities." (8)
He achieved this formula through a proposal presented by Thomas Hare, whom Mill described as "a man of great capacity, fitted alike for large general views and for the contrivance of practical details." (9)
According to Mill, Hare's model had "the almost unparalleled merit, of carrying out a great principle of government in a manner approaching to ideal perfection as regards the special object in view, while it attains incidentally several other ends, of scarcely inferior importance." (10)
First of all, he continued, Hare's plan
"secures a representation, in proportion to numbers, of every division of the electoral body: not two great parties alone, with perhaps a few large sectional minorities in particular places, but every minority in the whole nation, consisting of a sufficiently large number to be, on principles of equal justice, entitled to a representative." (11)
Secondly, "no elector would, as at present, be nominally represented by some one whom he had not chosen. Every member of the House would be the representative of an unanimous constituency." (12)
In an article of 1857 (13) and in a book of 1859 (14) revised in 1861, Thomas Hare proposed what was designated as transferable vote balloting procedure or single transferable vote. In fact, this was the same method suggested by Andrae in Denmark, which had become a law in that country in 1855.
Such mechanism, which was later called list balloting with transferable vote or single transferable vote, was explained in Brazil in a book published by Assis Brasil in 1893 as follows:
"The country should form a single circle; each voter votes for as many candidates as the seats to be filled; for a candidate to be considered elected, he should obtain the resulting quotient of the division of the number of voters by the number of seats to be filled; in each list, though, only one name is counted, the first one; if he does not reach the quota, or if he exceeds it, the votes that he does obtain, or the surplus, go to the second candidate, and so on, until the end of the lists. After this, all the representatives should have been designated, and, if not, the wasted votes shall be given to those most voted ones. Thus, the votes given to the first name of the list are transferred to the ones that follow it, when that first one did not reach the quota, or exceeded it; hence the denomination of transferable vote." (15)
Later, the proportional principle prevailed in a large part of countries, through the lists system: the party that presents them is the one to receive the votes. A quota is established through the division of the counted votes by the number of positions to be filled. Therefore, the parties will have as many positions as the number of times they reach the quota. Candidates with more votes transfer their excess; and those who have fewer votes - and thus are not elected - transfer the amount they have.
What seems to distinguish the proportional principle is the transferability of the vote. This should be supported and justified by the ideology that inspires the parties. But in political models in which parties do not present a clear ideological connotation and are simply machines to dispute elections - or, according to Schumpeter, that only try to regulate the electoral competition (16) -, some may find it strange that well voted candidates, or even the most voted ones, are not elected. (17)
So it would be correct to say that the majority principle can imply a serious representative injustice on behalf of governability; and that the proportional principle, which focuses on representative justice above all, preserves the right of the minority opinion, but does not facilitate the government's action.
In order to put an end or to attenuate this disadvantage of the minorities (18) , corrections to the majority system were often attempted. Two of such attempts were employed in our country: the limited vote and the cumulative vote.
In Brazil, the limited vote was suggested by José de Alencar, in articles published in the newspaper Jornal do Commercio in 1859, with the goal, as he explained, "of solving the difficult problem of the minority's representation." Alencar proposed, as he explained later, "the practical way of vote restriction, so as to leave enough space for the vote of the fractions to be counted as well." (19)
The mechanism was introduced in the country by Decree No. 2675, of October 20th, 1875, and called "The Third Part Law". Each voter should vote for deputies of the General Assembly or for members of the Legislative Assemblies, so many names as two thirds of the total number fixed for the county. If the number fixed for deputies was superior to a multiple of three, the voter should add one or two names to the two thirds, according to the surplus. Also, paragraph 19 of the Decree established that each voter had to vote in the proportion of two thirds in counties that had to choose a number of deputies that was multiple of three; they had to vote for three names in those where four deputies were to be chosen; and four names in those where five should be chosen. In the counties that had to chose only two deputies, the voter had to vote for two names. This is where the first criticisms to this system were based on: the incomplete vote did not apply to seven of the counties; it was arbitrary in other seven and was applied with accuracy only in six.
Another disapproving argument was later repeated by Assis Brazil. "Who had given the legislator the arbitration to establish that the minority had to be necessarily the third of the electorate, neither more or less?" he questioned. And added: "It is no smaller than the arbitration of establishing that the opinion will be divided into two parties only." (20)
However, the limited vote did not work in Brazil. The solution in itself was already ungraceful, since the official pressure done by the dominant party discovered the very curious formula of rotation to cancel it. In presenting three candidates in a district, it divided their voters into three groups and determined their votes two candidates at a time. A disciplined majority could, thus, take up all the seats available. (21)
The cumulative vote was introduced by Law No. 1269, of November 15th, 1904, and called the Rosa e Silva Law. (22) Each district now had five names, the vote was still limited, and the voter could accumulate all their votes or a part of them on one single candidate by writing his name as many times as the votes they wanted to give him.
Rosa e Silva believed that the legislator should not responsible for fixing the proportion in which the minorities would be represented, but only for securing the truthfulness of the electoral process and adopting a system that would facilitate their electing of representatives; their number would then depend on the efforts and electoral value of each group. But the complexity of the process itself did not allow the achievement of its goal. Besides, the whole fraudulent process - which involved the enrollment and qualification of voters, balloting, counting, verification and recognition of powers - would not be corrected by mere arrangements of electoral technique. Only the proportional system of the Second Republic, established by the Electoral Code of 1932, met the need of supplying the chambers in our country with representatives of smaller opinion groups.
Therefore, Brazil was able to see through its own history how the district majority vote - even with the massive governments force and widespread fraud during the Second Empire and First Republic put aside - contributed to the permanent exclusion of the minorities from the political process.
Majority system for assemblies and inequality in representation. Proportional system and obstacles to governability. This dilemma, always so present, had its ultimate confrontation in that very rich dialogue that opposed Bagehot and Mill, with fineness and brilliance, more than a century ago.
(1) Nabuco, Joaquim. Minha formação. Brasília: Universidade de Brasília, 1963, p. 15.
(2) Bagehot, Walter. The English Constitution. 1867.
(3) Nabuco, Joaquim, op. cit., p. 17.
(4) Bagehot, Walter, op. cit., p. 133.
(5) Bagehot, Walter, op. cit., p. 134.
(6) With the reformation of 1832, Great Britain had eliminated the rotten boroughs, electoral districts conserving the privilege of choosing deputies although calamities had reduced the number of their inhabitants or caused their disappearance. But starting from the beginning of the 19th century, other countries - especially the USA - ended up creating ad hoc districts, fixing "their own borders, so as to intentionally determine the group that will win by a relative majority," according to Sartori. This tendentious drawing of the electoral districts was called gerrymandering in the district system, since Massachusetts Governor Elbridge Gerry was the first to use it. But Sartori explains that "in the United States such mockery acquired a legal legitimacy and also a rational basis, a reason of being, as a way of guaranteeing ethnic representation (especially of blacks, but also of Hispanics)." In: Sartori, Giovanni. Ingeniería constitucional comparada. México: Fondo de Cultura Económica, 1994, p. 35.
(7) Bagehot, Walter, op. cit., p. 135.
(8) Mill, John Stuart. Considerações sobre o governo representativo. Brasília: Universidade de Brasília, 1981, p. 76.
(9) Id., Ibid., p. 75.
(10) Id., Ibid.
(11) Id., Ibid.
(12) Id., Ibid., p. 75.
(13) Hare, Thomas. The machinery of representation. 1857.
(14) Id., Treatise on the election of representatives, parliamentary and municipal. 1859.
(15) Brasil, Joaquim Francisco de Assis. Democracia representativa: do voto e do modo de votar. Rio de Janeiro: Typ. de G. Leuzinger, 1893, p. 166.
(16) According to Schumpeter, "party and electoral machine simply constitute the reaction to the fact that the electoral mass is unable of an action other than scattering. They represent, then, an attempt of regulating the electoral confrontation in a way exactly similar to the one we find in the employer trade associations." In: Schumpeter, Joseph A. Capitalismo, socialismo e democracia. Rio de Janeiro: Fundo de Cultura, 1961, p. 344.
(17) With 49,886 votes, Dante de Oliveira was not elected although he was the most voted candidate for federal deputy in 1990 elections in Mato Grosso state, since his coalition, led by the PDT [Labor Democratic Party], did not reach the electoral quotient. And, among many other cases, the third more voted candidate for the Federal Chamber in 1950 elections in Pernambuco state, Edgar Pessoa de Queiroz, was not elected: he had 17,346 votes, but his party, the Labor Social one, did not gather enough votes to reach the quotient of 20,961.
(18) "The brutality of the majority vote," Duverger comments. In: Duverger, Maurice. Sociologia Política. Rio de Janeiro: Forense, 1966, p. 378.
(19) Alencar, José de. Sistema representativo. Rio de Janeiro: Garnier, 1868, p. 3.
(20) Brasil, J. F. de Assis. Democracia representativa. Rio de Janeiro: Leuzinger & Filhos, 1893, p. 155.
(21) In the Senate, in 1875, Figueira de Melo explained the rotation, presenting two suppositions. First, there is a district with 180 voters, 120 of the majority and 60 of the minority: "The majority voters are divided into three groups: 40 vote candidates A and B; 40 vote candidates B and C; and the other 40 vote candidates A and C. Therefore, candidates A, B and C come to have 80 votes each one and in this way they overcome the 60 of the minority, which will not be able to choose its candidate." The second supposition seems initially more favorable to the representation of the minorities: "The majority has 765 voters and the minority 500, which are a number even more superior to the third; even so, the minority will not be represented, as long as there is a regular and simple division of the votes. It is sufficient that, from the 765 ballots corresponding to the number of voters, 510 are taken from the majority, and on all of these ballots the name of candidate A is written, and he will have these 510 votes, which is a number superior to the one of the minority; from among these 510 voters who will vote candidate A, 255 vote candidate B and 225 vote candidate C. So, 255 voters, who were not counted yet, vote candidates B and C; these have each one 255 votes from the group of 510 voters already and will also have the majority of 10 votes on the 500 ones belonging to the minority." In: Pinheiro, Luiz F. Maciel. Reforma eleitoral. Rio de Janeiro: Inst. Typográphico do Direito, 1876, p. 200.
(22) His project was presented to the Chamber by Deputy Anísio de Abreu, but the action of Pernambuco state's Senator Rosa e Silva on the text was so noticeable in the Senate that the law deserved his name at last.
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