2.8 Single Constitutional Amendment Concerning Federal Elections

Here is a draft of a single constitutional amendment that addresses all the federal electoral reforms recommended in this volume.

Amendment XX: Federal Elections

Section 1. Composition of the Legislature.

Article I Sections 1, 2, and 3 are repealed and replaced as specified in 1.1, 1.2, and 1.3 of this section of this amendment.

Throughout the Constitution, the word “Senate” is replaced by the phrase “Chamber of Deputies”, “Senator” is replaced by “Deputy”, and “Senators” is replaced by “Deputies”.

1.1           The Legislature

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a lower chamber called the House of Representatives and an upper chamber called the Chamber of Deputies.

1.2           The House of Representatives

The House of Representatives shall be composed of 501 Members chosen every second year, and each Representative shall have one vote. Congress may modify the number of members by law.[1]

Seats in the House of Representatives shall be apportioned among the states during the first year of each new decade, based on the average number of voters who voted in each state in the two most recent presidential general elections: but each state shall have at least one Representative.[2]

When he/she takes office, a Member of the House of Representative must be

  • At least 25 years old;
  • At least 7 years a citizen of the United States;
  • Less than 20 years a Member of the House of Representatives;[3] and
  • A resident of the state from which he/she shall have been chosen.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

1.3           The Chamber of Deputies

The Chamber of Deputies of the United States shall be composed of Deputies from each state, chosen by the voters for a six-year term of office; and each Deputy shall have one vote.  The number of Deputies from each state is one fifth of the number of Representatives from that state, with fractions always rounded up, so that each state will have at least one Deputy.[4]

Seats in the Chamber of Deputies shall be divided as equally as they may be into three classes (Class I, Class II, and Class III). For any state, the number of seats assigned to each Class shall be the same, as nearly as possible. One Class shall be elected every two years. Thus one-third of the total Chamber of Deputies, and one-third of the seats in the Chamber of Deputies from each state, shall be elected every two years.

When, due to the decennial Congressional reapportionment, the number of Deputies for any state is decreased, the next Deputy from that state whose six-year term of office is expiring shall not be replaced after his term expires. When the number of Deputies from any state is increased, a new Deputy from that state shall be elected at the next election, and that seat will be assigned to Class 1, 2, or 3, so that, as far as possible, one third of the Chamber of Deputies remains elected every two years, and one third of the Deputies from each state remains elected every two years.[5]

The first election cycle following reapportionment will include separate primary and general elections for all three Chamber of Deputies classes. This will include elections for 6-year terms for all the seats in the class normally scheduled for elections that year, as well as elections for 4-year terms and for 2-year terms for those seats in the other two classes which do not have an incumbent.

When he/she takes office, a Deputy must be

  • At least 30 years old;
  • At least 9 years a citizen of the United States;
  • Less than 18 years a Deputy;[6] and
  • A resident of the state from which he/she shall have been chosen.

The vice president of the United States shall preside over the Chamber of Deputies, and shall have one vote on all matters that come before the Chamber, the same as any Deputy. The vice president shall appoint a Chamber President Pro Tempore, with the concurrence of a majority of Deputies present and voting.[7] The Chamber President Pro Tempore shall preside over the Chamber in the absence of the vice president, or when the vice president shall exercise the office of president of the United States.

The Chamber shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the president or vice president[8] of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Section 2. General Provisions on Federal Elections

2.1 Voter Registration

Congress shall establish a National Voter Registration Authority, which will

  • create a national database of registered voters, to be shared with all jurisdictions that conduct elections,
  • prevent the national database of registered voters from unauthorized disclosure or access from unauthorized entities,
  • ensure that the national database of registered voters is used for no other purpose than voter registration, authentication, and authorization,
  • assign to each voter a unique Voter Identifier which remains with that voter for life,
  • maintain for each voter both their legal (voting) address and current contact information,
  • accept and process voter registration applications from all eligible citizens,
  • automatically register each citizen to vote upon their 18th birthday,
  • automatically register each citizen to vote, or verify his/her earlier registration, whenever a citizen interacts with a state or federal government entity,
  • remove a voter who has deceased, and
  • establish appropriate means of voter authentication and authorization to vote.[9]

2.2 Voting Procedures and Ranked Choice Voting (RCV)

All elections are conducted by the several states and by any other United States territories or possessions so authorized by Congress.[10] A secret ballot is guaranteed. Votes may be cast by mail provided such votes are received by the election date; votes may also be cast in person for nine days, ending on the last Sunday of the election.[11]

Ranked Choice Voting (RCV) is mandatory for all federal elections. For each office being contested, voters will be able to rank their choices, marking a 1st choice, a 2nd choice, a 3rd choice, and so on, for as many names as appear on the ballot, or for as many names as the voter chooses to rank.

The procedure for counting ballots is different for an election with a single winner and for an election with multiple winners:

RCV procedure for counting ballots when an election has only one winner:

  • If one candidate has a majority of the 1st choice votes, that candidate is the winner.
  • If no candidate has a majority of the 1st choice votes, then the following steps are repeated until one candidate has a majority of the total vote:
    • The candidate with the fewest votes is eliminated, and the votes for that candidate are reassigned to each voter’s next highest choice among the remaining candidates.
    • If a voter did not make a choice for any of the surviving candidates, then that ballot is exhausted and is no longer counted as part of the total vote.

RCV procedure for counting ballots when an election has multiple winners:

  • Definition of variables:
    • N = number of winners for an election with multiple winners.
    • Threshold Percent (T%) Plus One (T%+1): The share of the total vote that guarantees a candidate’s victory. The formula for T%+1 is 100%/(N+1), + 1 vote.
    • Actual Threshold (AT): The number of votes needed to win a particular election, defined as the total votes cast multiplied by T%, plus one vote.
    • Winner’s Votes (WV): The number of votes earned by a winning candidate.
    • Winner’s Percent (W%): For a winning candidate, the portion of each voter’s vote needed to reach the Actual Threshold, calculated as WV/AT.
    • Excess Percent (E%): For a winning candidate, the portion of each voter’s vote that can be reassigned to each voter’s next highest choice. It is calculated as 100% – W%.
  • If N or fewer candidates were on the ballot, all candidates are winners and the election is done.
  • The first step in applying RCV is to calculate T% and AT for this election.
  • If more than N candidates were on the ballot, any candidate whose 1st choice votes meet or exceed the AT is a winner. If N candidates meet the AT, then all these candidates are winners and the election is done.
  • If fewer than N candidates meet the AT, then the following steps are repeated, until N candidates meet the AT or only N candidates remain:
    • For any candidate who has won, W% is calculated, and then E% is calculated. E% of each of the winning candidate’s voter’s vote is then reassigned to that voter’s next highest choice (among candidates neither elected nor eliminated).
    • The candidate with the fewest votes is eliminated, and all the votes for that candidate are reassigned to each voter’s next highest choice (among candidates neither elected nor eliminated).

Congress shall have the power to refine the above procedures for counting ballots in elections with a single winner and for counting ballots in an election with multiple winners.

2.3 Primary Elections

Open primaries are mandatory for all federal elections (for president, vice president, and both chambers of Congress).[12] Open primaries are non-partisan; the party affiliation of a candidate, if any, will be indicated on the ballot. All registered voters are eligible to vote in every primary and general election within the jurisdiction where they legally reside.

Any eligible candidate may compete in any open primary, subject to state rules for qualifying for the ballot. The results of the primaries determine the candidates whose names will appear on the general election ballot. Those eligible to compete in the general election may withdraw within one week after they have been certified to appear on the general election ballot.

To appear on a primary ballot, a candidate must authorize the US Treasury to release, two weeks after National Primary Day, the five most recent tax returns of that candidate and his or her spouse, if that candidate qualifies for the general election, and if that candidate does not withdraw as a candidate before such tax returns are released. Each general election candidate must also release, on the same schedule, a statement of net worth, showing his/her complete assets and liabilities and those of his/her spouse.[13]

By the Sunday after the National Primary, any candidate who has qualified to appear on any general election ballot may withdraw as a candidate.

Section 3. Elections for President and Vice President

3.1 Elections and Terms of Office.

The president and the vice president shall be elected directly by the voters in years evenly divisible by 4.[14] Votes for president and for vice president in both the primary and general elections shall be cast and counted by Congressional District (CD).[15] In counting ballots, RCV procedures are used to determine the single winner in each CD

Congress shall establish a National Vote Tabulation Authority, whose responsibility is to collect from the states the results of the primary and general elections for president and for vice president, to tabulate and summarize the results, and announce the winners.

The four-year term of office for president and for vice president shall commence at noon on the second Sunday in January following their election.

3.2 Primary Elections for President

The total Nominating Votes for president equals the number of seats in the House of Representatives, plus the number of Nominating Votes from non-state jurisdictions.

  • Each CD has the same number of Nominating Votes as it has seats in the House of Representatives.
  • Congress may authorize certain jurisdictions other than states to participate in presidential primaries (Washington, DC, Puerto Rico, and other territories and possessions). All such jurisdictions taken together constitute the Non-State Primary District. For each 1 million inhabitants or portion thereof, this Non-State Primary District is awarded one Nominating Vote.
  • A primary election shall be held at large in each CD and in the one Non-State Primary District. The winner of each primary election shall be awarded all of that jurisdiction’s Nominating Votes.

The candidates for president who qualify for the general election ballot are determined through three rounds of primary elections, including four states in Round 1, ten states in Round 2, and all other states and non-state jurisdictions in Round 3.

Unless Congress adopts a different scheme for selecting the states for Rounds 1 and 2, Round 1 primaries will occur in New Hampshire, Iowa, South Carolina, and New Mexico; and Round 2 primaries will occur in 10 states who volunteer for that duty. If more than 10 states apply, random selection will be used to select 10 of them; if fewer than 10 apply, random selection from the remaining states will be used to round out the 10.

Any candidate who meets a state’s requirements to appear on the primary ballot for president will appear on the primary ballot in that state. In addition, any candidate who earns at least one Nominating Vote in a Round 1 or a Round 2 primary automatically qualifies to appear on the ballot in all subsequent primaries.

At the conclusion of the three rounds of presidential primaries, any candidate who has received at least 15% of the total Nominating Votes qualifies for the general election ballot for president in all states. If fewer than three candidates achieve the 15% threshold, then the three candidates with the most Nominating Votes qualify for the general election ballot in all states. Any candidate who has won any Nominating Vote in any state qualifies for the general election ballot in all CDs in that state. No other candidate will appear on the general election ballot for president in any state.

Any candidate who withdraws as a presidential candidate within one week after Round 2 of the presidential primaries may become a candidate for vice president, for the Chamber of Deputies, or for the House. A person can be a candidate for only one federal office at a time.

3.3. Primary Election for Vice President[16]

The total Nominating Votes for vice president equals the total Nominating Votes for president, determined in the same manner.

The primary election for vice president takes place as part of the National Primary in all jurisdictions.

Any candidate who meets a state’s requirements to appear on the primary ballot for vice president will appear on the primary ballot in that state.

Anyone who was a candidate for president in Rounds 1 and/or 2, who won at least one Nominating Vote, and who then withdrew from the presidential contest, automatically qualifies as a candidate for vice president in all jurisdictions, unless that candidate withdraws from consideration as a vice presidential candidate.

The primary election for vice president shall be held at large in each CD and in the one Non-State Primary Election District, and the winner of the primary election shall be awarded all of that jurisdiction’s Nominating Votes.

At the conclusion of the primary election for vice president, any candidate who has received at least 15% of the total Nominating Votes qualifies for the general election ballot for vice president in all states. If fewer than three candidates achieve the 15% threshold, then the three candidates with the most Nominating Votes qualify for the general election ballot in all states. In addition, any candidate who has won at least one Nominating Vote in any state qualifies for the general election ballot in all CDs in that state. No other candidates will appear on the general election ballot for vice president in any state.

3.4 General Elections for President and for Vice President

Separate general elections for president and for vice president will take place on the date specified for the General Election for all federal offices. The winner of each election is determined by Electoral Votes. The total Electoral Votes for president and for vice president equals the number of seats in the House of Representatives, plus twice the number of states.

Using the RCV procedure for an election with one winner, the winner within each CD will be awarded all the Electoral Votes for that CD; the state-wide winner will be awarded one additional Electoral Vote; and the winner of the national popular vote will be awarded one additional Electoral Vote for each state in the Union.

If one candidate has earned a majority of the Electoral Votes nationally, that candidate will be declared the winner and will become the president-elect or vice president-elect.

If no candidate has a majority of the Electoral Votes, then all but the top two candidates will be eliminated, and a final round of ballot counting using the RCV procedure for a single winner will take place, in order to determine the voters’ preference among the two remaining candidates. When the Electoral Votes are reassigned to the two remaining candidates, the one with a majority of all Electoral Votes will be the winner. If these last two candidates are tied, then the winner of the national popular vote will be the winner.

Section 4. Elections for Members of Congress

Elections for Congress shall occur in even-numbered years. In each such election cycle, all Members of the House shall be elected for two-year terms, and one Class of the three Chamber of Deputies Classes shall be elected for six-year terms. Their terms of office shall begin at noon on the first Sunday in January following their election.

If a state has fewer than six House seats, then all House members will be elected at-large, that is, in one Congressional District (CD). For states with six or more House seats, the state shall be divided into multi-seat CD’s, with no fewer than three and no more than five seats per CD. The number of CD’s in each state shall equal the number of Deputies allocated to that state.[1] CD’s shall be drawn using Zip Code Tabulation Areas (ZCTA’s) from the 2010 Census in numerical order, equalizing the population per House seat of each CD as far as possible.

For the Chamber, each CD will elect one Deputy, provided, however, that a state’s voters, by a majority vote in a referendum, may choose to elect all its Deputies at large.

For primaries in elections for a single seat, the number of successful candidates is three. For primaries in elections for multiple seats, the number of successful candidates is double the number of seats being contested. The RCV procedure for an election with multiple winners will be applied to reach the requisite number of primary winners, provided at least that many candidates are on the primary ballot. No candidate, other than those who qualify through this primary process, will appear on the general election ballot.

[1] Were this system in use today, based on a House of Representatives with 435 seats, 24 states would elect all of its representatives at-large, which goes a long way towards solving the gerrymandering problem.

Section 5. Dates of Primary and General Elections, Convening of Congress, and Inauguration

Federal elections occur in even-numbered years; presidential elections occur in years evenly divisible by four. For each primary or general election, the nine-day period of in=person voting ends on the following days:

Presidential Primary Round 1: Last Sunday in August

Presidential Primary Round 2: Last Sunday in September

National Primary (which includes Presidential Primary Round 3, Vice Presidential Primary, and Congressional Primary for House and Chamber of Deputies): Last Sunday in October

General Election: Second Sunday in December

Convening the new Congress: Noon on the first Sunday in January following their election

Inauguration of the new president and vice president: Noon on the second Sunday in January following their election.[18]

Section 6. Continuance in Office

To continue in office, all federal elected officials, by October 1 of each year, must authorize the US Treasury to release the five most recent tax returns of that official and his or her spouse. Each official must also release, on the same schedule, a statement of net worth, showing his/her complete assets and liabilities and those of his/her spouse.

Every federal elected official is prohibited from hiring, nominating, or appointing any member of his/her immediate family to any position within the Federal Government.

Section 7. Transition to the Reconstituted Congress

After this Amendment is adopted, and before the beginning of the year when the first elections under this Amendment will be held, the vice president, acting as president of the Senate, will arrange for an orderly transition from the Congress under the 1787 Constitution to the Congress under this Amendment.

The 501 seats in the House of Representatives shall be apportioned to the several states based on the average number of votes cast in the two most recent presidential general elections. After the apportionment of seats in the House, apportionment of seats in the Senate is automatic.

In the first election cycle, all members of the House of Representatives and the Chamber of Deputies will be elected.

After the completion of two presidential election cycles under this Amendment, Congress may modify any of the provisions of this Amendment, provided two-thirds of both chambers concur.

[1] In counting the population of each state in order to apportion seats in the House of Representatives, the 1787 Constitution counted 3/5 of all slaves, and did not count Indians at all. The 1787 Constitution also specified the number of seats apportioned to each of the thirteen original states. A law passed in 1913 (when the US population stood at 92 million) set the total number of seats at the current 435. With a population of 330 million today, it might be advisable to revisit the total number of seats. We should remove the enumeration of particular states from the Constitution. We should have an odd number of seats, which becomes apparent when reading Section 3 of this amendment.

[2] The notion of decennial reapportionment is taken from the 1787 Constitution, Article I Section 2. The idea of basing reapportionment, not on population, but rather on the number of people who voted, serves several purposes: 1) This provision encourages citizens to vote, because more voters means more Representatives in the House; 2) Similarly, this provision encourages states to design election procedures that will maximize voter turnout, rather than intentionally discouraging certain kinds of voters from exercising their franchise; and 3) The numbers cannot be easily fudged, since the number of votes cast in every election are publicly announced and readily available. Also, the notion that the number of qualified voters (called “electors” in the 1787 Constitution) is a relevant factor in composing the House is adapted from the 1787 Constitution, Article I, Section 2, which states: “The House of Representatives shall be composed of Members chosen every second Year by the people of the several states, and the Electors in each state shall have the Qualifications requisite for Electors of the most numerous Branch of the state Legislature.”

[3] This provision implements term limits for the House. Ten 2-year terms is specified as the maximum amount of time a member may remain in the House.

[4] That is, a state with 1 to 5 House seats will have one Deputy; a state with 6 to 10 House seats will have two Deputies; a state with 11 to 15 House seats will have three Deputies; and so on. This provision mandates that every state shall have at least one Deputy. This scheme still gives more power to states with small populations than is strictly justified based on population alone, but it is vastly fairer than the current scheme of two Senators per state regardless of population, and it is much easier to implement than a scheme based only on population, which would require election districts that cross state boundaries.

[5] This provision could result in the election of a Deputy to a newly-created seat for a term of only two years or four years, that is, until such time as that seat’s class next comes up for election.

[6] This provision implements term limits for the Chamber of Deputies. Three 6-year terms is specified as the maximum amount of time a member may remain as a Deputy.

[7] The vice president is given a larger role in Constitution II than that office had in the 1787 Constitution. Further, the vice president is elected independent of the president in Constitution II.

[8] The vice president, as the presiding officer of the Senate, were he/she impeached by the House, should not preside over his/her own trial. Therefore, the Chief Justice should carry that responsibility.

[9] Previous initiatives to accomplish this have foundered on fears of a national identification system, with citizens concerned about too much power in the hands of Government. In the case of the Social Security number, we have managed to negotiate through similar concerns by restricting the use of the SSN to tax matters and preventing its use as a general citizen ID number. The same will apply here. The Voter-ID can only be used for purposes of voter registration, authentication, and authorization. Authentication involves proving that you are who you say you are; authorization involves proving that you (having already been authenticated) are authorized to do what you plan to do.

[10] The current, well-established system gives the responsibility for conducting elections to the states. There is no compelling reason to change this.

[11] This provision establishes mail-in voting, early voting, and in-person voting for all federal elections.

[12] When the United States began, the Founding Fathers were very concerned about the formation of “factions” (that is, political parties), which could do great damage to the functioning of the Republic. Obviously, we have become wedded to the dominance of political parties in every phase and at every level of our politics. This Constitution II gives us a renewed opportunity to move away from “factions”. One such improvement would be the adoption of open primaries, in which all candidates compete (regardless of party affiliation) and in which all voters can vote.

[13] This provision requires all general election candidates to be completely transparent with respect to their personal finances.

[14] One of the most important democratic improvements of Constitution II is the direct election of the president by the voters.

[15] Article II Section 2 specifies 501 seats in the House. Hence, there will be 501 electoral votes, and 251 is needed for a majority.

[16] The vice president has become president multiple times in our history, either through the death or resignation of the president or through a subsequent election in which a sitting vice president is seen as having a considerable built-in advantage over any other presidential aspirant. Therefore, in a democracy, it is reasonable that the people should choose the second-most important job under our Constitution, rather than leaving that selection to a single person, who, at the time the decision is made, has not yet been elected as president.

[17] Were this system in use today, based on a House of Representatives with 435 seats, 16 states would elect all of its representatives at-large, and 11 more states would have just two congressional Districts  – which goes a long way towards solving the gerrymandering problem.

[18] This provision shortens the interregnum between the election and the inauguration of a new president.

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