Law Faculty Scholarship


The current winner-take-all or first-past-the-post system of voting promotes an inefficient market where votes are often wasted. In this system, representatives are selected from a single district in which the candidate with the plurality of votes gains victory. Candidates who appear non-generic can rarely, if ever, expect to receive the most votes in this system. This phenomenon is especially apparent when African-Americans and other minority groups seek elected office. In part because white voters constitute at least a plurality of voters in every state except Hawaii, minorities in the forty-nine other states have had historically little success in gaining election to the United States Senate. As a consequence, the only real opportunity for minorities to gain access to federal elected office remains limited to the United States House of Representatives.

The flaws of the winner-take-all-system and single member district are readily apparent. First, significant blocs of voters are consistently denied the right to elect a truly preferred candidate, because such candidates can almost never expect to receive the most votes. Consequently, many potential candidates are deterred from running because the prospect for victory is so slim. As a result, large numbers of voters are often forced to select the candidate they believe has the greatest chance of winning, rather than their preferred candidate.

In addition, many voters in a winner-take-all system are represented by persons they did not support. For instance, in 1994, while Democratic candidates for Iowa's five seats in the United States House of Representatives received 42% of the total votes cast in Iowa, none of Iowa's five congressional seats was won by a Democrat. Similarly, in 1992, Republican congressional candidates garnered 48% of the two-party statewide vote in North Carolina, but won only four of twelve seats. Thus, many losing votes may be considered wasted.

Wasted votes may also include those cast for the victorious candidate: any vote cast in addition to the number needed for victory might as well have never been cast. Thus, in landslide races, where the prospect of wasting one's vote is high, the incentive to vote seems almost non-existent. Since over 75 percent of congressional races in any given election tend to be landslide races, many eligible voters do not vote. This Article considers an alternative system of voting: proportional representation, of which there are two basic forms, List System and Choice Voting/Single Transferable Vote. In the list system, a voter simply selects one party and its slate of candidates. Thereafter, the seats are allocated on the basis of the share of votes each party earned. For instance, in the Iowa congressional example discussed above, instead of receiving zero congressional seats with 42% of the statewide vote, the state Democratic Party would have earned two seats out of the available five. Often, with the list system, a minimum share of votes (such as 5%) is required for a party to earn representation.

Alternatively, in a choice voting system, a voter simply ranks candidates in order of preference (first choice, second choice, etc.). Once a voter's first choice is elected or eliminated, the voter's excess votes are transferred to subsequent preferred candidates until all the seats are filled.

In either arrangement, proportional representation would diminish wasted votes, provide greater opportunities for minority groups to gain access to legislative positions, and offer greater incentive for eligible voters to vote. Though proportional representation risks the election of fringe groups (such as hate groups), a minimum bar of 5% to 7% would likely neutralize that possibility. All told, proportional representation appears to be an intriguing alternative to our present winner-take-all voting system.

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Kansas Journal of Law and Public Policy

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