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Executive Summary

THIS BOOK IN FIVE MINUTES

Full realization of democracy in America is a work in progress. We’ve come a long way, but still have a long way to go. This book discusses 21st century challenges to our democracy and proposes fixes to meet those challenges.

Part I. Challenges

  1. Presidential Selection Challenge: The presidential election season is way too long, the candidate selection process is overly complex and undemocratic, vice presidents (our likely future presidents) are appointed rather than elected, and the electoral college is obsolete.
  2. U.S. Senate Challenge: The Senate is not representative of the people. Voters in the least populous state have 66 times more power to choose their Senator than voters in the most populous state. That is hardly a democracy.
  3. Gerrymander Challenge: Both major parties have become quite sophisticated and effective at drawing legislative districts that unfairly favor themselves.
  4. Other Election System Challenges: First-Past-The-Post (FTPT) voting; the entrenched two-party system; caucuses, conventions, and closed primaries; single-member congressional districts; interminable electioneering; voting rights restrictions; unlimited money in political campaigns; and lack of transparency and financial disclosures by candidates and office holders all detract from the proper functioning of our democracy.
  5. Congressional Rules Challenges: Congress follows rules which promote gridlock, preventing necessary legislative action. Presidents step into the resulting power vacuum, creating the imperial presidency.
  6. Bill of Rights Challenges: The Bill of Rights in the Constitution is incomplete. Some implied rights lack specificity or clarity. Some citizen rights and some states’ rights are missing entirely.

Part II. Fixes

Ranked Choice Voting (RCV)

After selecting their 1st choice for each office, voters may also select a 2nd, 3rd, and additional choices for as many names as appear on the ballot.

Counting of ballots depends on whether the contest has a single winner or multiple winners:

For single-winner-contests, if the top candidate has less than a majority of the total vote, then the candidate with the fewest votes is eliminated, and votes for that candidate are reassigned to each voter’s next highest choice among the remaining candidates. This process continues until someone has a majority of the total vote.

For multi-winner contests, the ballot counting process insures proportional representation: That is, the majority view ends up with the most winners, but all views held by a significant minority are also represented among the winners.

Two-Party System

Open primaries are mandated for all federal elected offices. In an open primary, all candidates compete against each other, and all voters select their choices among all candidates for that office regardless of party affiliation. All voters can vote in every primary. Open primaries replace all closed primaries, caucuses, and conventions.

Eliminate legal preferences for the two-party system. We propose repealing all laws which mention or favor political parties.

Political parties will still exist. They can hold meetings, caucuses, and conventions at their own expense. They can endorse candidates and adopt platforms. But no party or group has a legal advantage over any other party or independent candidate.

Initiative and Referendum

Replace “Article V — Amendments” to the Constitution. Empower voters to initiate and repeal laws, propose constitutional amendments, and convene a constitutional convention. Give voters the exclusive power to ratify all constitutional amendments.

Presidential Selection Fix

Shorten, simplify, and democratize the process of choosing presidential candidates:

Adopt three rounds of presidential primaries, including four states in round 1 (held in August), ten states in round 2 (in September), and all other jurisdictions in round 3 (National Primary Day, in October).

Tabulate primary votes by Congressional District (CD). The winner of each CD receives the ”Nominating Vote” from that CD.

Candidates who receive at least 15% of the total Nominating Votes qualify for the general election, which takes place in December.

Hold a primary election for vice president on National Primary Day.

Provide for the direct election of the president and vice president. Adopt the Local-State-National (LSN) Voting System. Under the LSN Voting System, as follows:

One electoral vote goes to the winner of each CD;

One electoral vote goes to the winner of each state; and

One electoral vote from each state goes to the winner of the national popular vote.

Implement the LSN scheme either through the LSN Interstate Compact (bypassing the electoral college without a constitutional amendment) or through a constitutional amendment (eliminating the electoral college all together).

U.S. Senate Fix

By Constitutional Amendment, remove Article I Section 3 of the US Constitution (which establishes the US Senate). Replace the US Senate with the Chamber of Deputies, a representative body. Each state gets one Deputy for every five seats in the House, but every state gets at least one Deputy.

Gerrymander Fix

Adopt multi-seat CD’s with RCV.

Completely automate the drawing of the multi-seat CD’s based on Zip Code Tabulation Areas (ZCTA’s) from the 2010 Census.

Other Election System Fixes

Compress the political campaign season to run from Independence Day to the general election in December.

Automatically register all voters at age 18. Establish a National Voter Registration Authority to maintain all voter rolls.

All elections last nine days, ending on a Sunday, giving voters two full weekends to vote in person. Allow mail-in ballots without justification.

Campaign finance reform: Limit who can contribute, how much, and when. Limit fund-raising by candidates. Provide public financing for all general election campaigns.

For candidates and elected officials, require transparency and full financial disclosure, and prohibit nepotism.

Congressional Rules Fixes

Reform the filibuster. Establish majority rule in both chambers of Congress.

Reform the Senate’s “advise and consent” procedure. Allow the president to make temporary appointments if the Senate fails to act expeditiously.

Give Congress both advance notice and veto power over presidential executive orders.

Bill of Rights Fixes

We propose 13 new constitutional amendments to complete our Bill of Rights.

Some implied rights should be clarified, such as privacy; freedom from discrimination and torture; the right to bear arms; and the rights to life, liberty, and the pursuit of happiness.

Some citizen rights missing from the Constitution need to be defined or specified, such as the definition of citizens, voting rights, initiative and referendum, and approval of constitutional amendments.

Some states’ rights also need to be clarified or included, such as the right of states to work in concert with each other without ceding power to the federal government, a limited right of states to supersede federal law, and the right to secede.

Part III. A New Constitution

We propose consideration of Constitution II, replacing the existing 1787 Constitution. This new constitution incorporates all previous amendments to the 1787 Constitution, all the fixes proposed in Part II, and several additional fixes that ought to be considered as long as we are rewriting the whole document. Part III also includes a procedure for ratification and transitioning to Constitution II.

 

2.7 Summary of Electoral Fixes by Method of Realization

This paper has presented quite a few fixes to the way we choose our federal office-holders. We can achieve some of these fixes through new or amended state or federal statutes, while others require a constitutional amendment. For many of these fixes to really take hold, we need a cultural shift. Here is a summary of the suggested improvements broken down into these four categories: state law, federal law, constitutional amendment, and cultural change. This discussion does not repeat the thrust of the arguments in favor of each reform but rather presents the possibility of achieving the reform through each method of realization.

Fixes Through State Laws

We can implement some fixes through state laws, but such laws would be effective only if all or most of the states passed those laws. Gerrymandering is a good example. In some states a grassroots citizens’ movement has fought to remove politics from Congressional redistricting. But the politicians in each state’s majority party ask,

Why should we unilaterally disarm? If we get rid of gerrymandering in our state, the minority party in our state will gain more members in Congress. But I do not see their party getting rid of gerrymandering in the states their party controls – so the result would be that our party loses. Sure, we favor reforming the system but only if everyone does it together.

This then becomes an argument for the status quo.

One solution to this conundrum could be a compact among states, all agreeing to adopt the same reform when other states agree to do likewise. Of course, this type of solution only works if the argument about “unilateral disarmament” is the real objection to reform and not just an obstructionist tactic. To improve its chances of success, groups of states could adopt it. For example, Maryland State Senator Jamie Raskin introduced legislation to eliminate gerrymandering simultaneously in Maryland and Virginia.[1] The two states are good candidates for this type of deal, because they are mirror images of each other politically. Maryland, with a Republican governor but Democratic legislature, is heavily gerrymandered to favor Democrats, resulting in 7 Democrats and only 1 Republican in Congress. Virginia is the opposite: With a Democratic governor but Republican state legislature, the state is heavily gerrymandered to favor Republicans, who hold an 8-3 majority in Congress. If both states drew district boundaries without partisan considerations, the expected results in each state would more fairly represent their electorates, but the total number of Congresspersons from each party would probably remain about the same. Repubs would likely pickup 2 or 3 seats in Maryland; Dems would do likewise in Virginia.

Reformers might be able to identify similar groupings of states all across the country.

Like all solutions implemented by state statute, what lawmakers enact today they can repeal tomorrow. So one approach, that of amending state constitutions, is a considerable improvement over a simple state statute.

Manner of choosing the president

Local-State-National Interstate Compact (LSNIC): States could pass laws binding themselves to cast all their electoral votes for the winner of the election according to the LSN vote counting scheme. These state laws would become effective as soon as enough states pass it so as to constitute a majority of all electoral votes.

Ranked Choice Voting:

In the 2016 election, Maine became the first state to adopt Ranked Choice Voting for most of its elections. The good folks at FairVote.org believe that this Maine victory may be a harbinger of the future and that more states and other jurisdictions around the country will also begin to adopt RCV.

Although Congress can and should mandate RCV for elections to federal offices, states are responsible for elections for their own Governors, other state-wide offices, and state legislatures. Therefore, every state should adopt Ranked Choice Voting for all the elections it controls. This should include the state’s elections for federal offices if Congress fails to act.

Multi-seat Congressional Districts

This makes sense only when combined with Ranked Choice Voting. Without RCV, multi-seat election districts are often less representative than single-member districts. This is because the majority party in the multi-seat district is positioned to win every seat in that district. For example, if one party has a 55%-45% advantage in a three-seat district, and voters get to vote for three candidates, all three candidates from the majority party are likely to win with 55% of the vote. But if that three-seat district remained three one-seat districts as at present, the majority party might be the majority in two of those districts, probably by a wide margin, but that party might be the minority party in the third district, and so it could lose that one seat. But as the example in the RCV discussion demonstrated, a three-seat district under RCV will usually end up with two seats from the majority party and one seat from the minority party.

Solutions to gerrymandering for state legislatures as well as Congress

A fully automated redistricting plan is best, and ZCTA’s might offer the best option for achieving it. In some states, certain ZCTA’s might be home to too many people for state legislative districts, representing much smaller populations than Congressional Districts. In such cases, a computer program can divide a ZCTA into the Census Bureau’s census tracts, which contain ~4000 people each.

If a state finds the fully-automated solution infeasible for some reason, it could still adopt a non-partisan redistricting commission, assisted by appropriate technology, and charged only with drawing election districts with roughly equal populations and no other considerations.

Automatic voter registration

While the best solution in this matter might be a federal statute or constitutional amendment, individual states can achieve this for their own citizens. States could automatically register voters when they reach their 18th birthday (most of them are in school and therefore a captive audience, making this easy enough to implement). States can also verify a citizen’s voter registration status and then automatically register them if necessary whenever the citizen interacts with state or local government in any way – getting a driver’s license, purchasing and registering a vehicle or a boat, engaging in any real estate transaction, paying taxes, registering for a public college, applying for welfare or unemployment compensation or Medicaid, perhaps even paying for a parking ticket.

Convenient voting procedures

Every state can adopt welcoming rather than restrictive voting rules: absentee ballots available to all citizens without needing to give a reason; absentee ballots accepted if received up through the last election day; early in-person voting to include at least one weekend; adequate polling stations, voting machines, and voting hours.

Fixes Through Federal Laws

For our national fixes to be most effective, we must adopt them nationally – which means either a federal statute or an amendment to the US Constitution. However, federal statutes sometimes run afoul of the Constitution itself. The Constitution contains two provisions which often appear in conflict with each other:

  • Article I Section 8 lists the powers of Congress, and then contains this final power: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
  • Amendment 10 states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In practice, when Congress proposes a law concerning an issue not expressly within Congress’s authority, proponents argue that Congress’s power to act on this issue is implied by its express powers. Those who oppose the law disagree, contending that the 10th Amendment supersedes, so the issue must be left to the states or the people. In some cases Congress goes ahead and passes the proposed law. Then someone files suit against it, claiming that the law violates the 10th Amendment. Sometimes the Supreme Court agrees with the opponents and determines that the law is unconstitutional.

Thus the question of constitutional limits on Congress’s power is clearly an issue concerning many of the fixes suggested in this volume. For example, concerning the time when elections take place, Article I Section 4 states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations”. Originally, every state selected the date of the general election as it saw fit, but in 1845 a federal statute fixed the date of the general election as the first Tuesday after the first Monday in November. So Congress clearly has the authority to fix the date of the general election for Congress. But what about the general election for the electoral college? And what about primaries? When the Constitution was written, primary elections did not exist. Some might argue that Congress’s authority to set the date of the general election for Congress implies that it has the authority to also set the dates of primaries. Actually, the Constitution does not distinguish between primary and general elections – it just refers to “elections”.

One solution to the question of federal versus state authority has had some success over the years and could be used as a model for wider application. This solution is the use of block grants in which Congress allocates sums of money to individual states, based on the varying needs of each state. Each state then has the authority to spend the block grant funds as it sees fit within the broad parameters of the purposes of the block grant. Congress has used block grants for education assistance programs (clearly a state matter), healthcare (Medicaid, administered by the states), emergency relief from natural disasters, and infrastructure projects. The federal government can sometimes smooth out differences between the states based on the relative wealth of each state, while in other cases state needs differ widely. Landlocked states do not need money for ports, for example, while other states never suffer earthquakes. In all these cases, governmental assistance may be necessary to give each citizen the right to “life, liberty, and the pursuit of happiness”, but the Feds are not always the best source for that assistance.

Ranked Choice Voting

The Constitution explicitly gives Congress the power to fix the “manner of elections” for Senators and Representatives; and implicitly, Congress probably also has the power to fix the “manner of elections” for president and vice president. While state laws can implement RCV on a state-by-state basis, it would be far preferable, quicker, and more effective for Congress to mandate RCV in all federal elections.

Three rounds of presidential primaries

Because Congress can fix the “manner of elections” for Senators and Representatives, Congress can certainly fix both primary and general election dates for members of Congress. We can debate whether or not Congress has the constitutional authority to mandate primary election dates for president. If Congress adopts a national presidential primary system, the Supreme Court might rule it unconstitutional. Were that to happen, then we would need a constitutional amendment to get to a national presidential primary – but we’re not there yet, so it’s certainly worth a try.

Vice presidential primary and general election separate from the election for president

The original Constitution says very little about the election for vice president, and nothing at all about primary elections for any office. (The only mention of primary elections in the Amendments is in Amendment 24, which barred the poll tax.) Therefore, as in the case of three rounds of presidential primaries, the question is whether Congress has authority to legislate on the topic of the vice presidential primary and general election. Again, it’s worth a try – and if Congress were to establish a primary election for vice president, and separate voting in the general election for president and for vice president, and if the courts then ruled that this law is unconstitutional, then we would need to pass a constitutional amendment to make it happen. But again, we could give it a go, and see whether such a law will be upheld.

Multi-seat Congressional Districts

Congress clearly has the authority to mandate multi-seat Congressional Districts, and having Congress do this is much better than depending on all 50 states to do it individually. As in many electoral reforms, a constitutional amendment might be an even better approach. But also like many suggested electoral reforms, we might learn from the experience of having multi-seat CD’s, and then conclude that that solution produces results as unsatisfactory as the system we have now. In that event, having a federal statute that Congress can modify might be preferable to having a constitutional amendment that is far more difficult to modify.

General solutions to gerrymandering for Congress

The comments about multi-seat CD’s also apply here. Congress can mandate this; a constitutional amendment can solve it more permanently; but if the fix does not work well or leads to other challenges, a federal statute is easier to replace than a constitutional amendment. Perhaps the best approach would be to adopt a federal statute first, try it out for a few election cycles, and then initiate a constitutional amendment when we have determined that this is a good permanent solution.

A compressed election season schedule

Congress can fix the dates of primary and general elections for members of Congress, and probably also for president and vice president – after all, in 1845 Congress mandated the date of the general election for all federal offices as the first Tuesday after the first Monday in November. Congress can choose to adjourn whenever it pleases. Hence, Congress could eliminate the lame duck session of Congress and greatly shorten the transition period for the office of president.

Convenient voting procedures

The argument that Congress has the power to effectuate these reforms is based on the same constitutional provision as the other reforms in this section, namely, the first clause of Article I Section 4, giving Congress the power to determine the manner of holding elections for the Congress. If a federal law in this area is determined not to be constitutional, then a constitutional amendment giving Congress the power to establish such regulations might be in order.

Automatic, universal voter registration

Congress already has the authority to implement laws ensuring the voting rights of all citizens (Amendment 14), regardless of race (Amendment 15), religion (Amendment 1), sex (Amendment 19), or age (for anyone at least 18 years old) (Amendment 26). A federal law providing universal, automatic voter registration for all adult citizens would be a fine way to exercise that authority and would likely pass constitutional muster.  Again, if not, then a constitutional amendment is the alternative.

Campaign finance reform

There are several parts to campaign finance reform, each amenable to different solutions:

  • Concerning campaign contributions, Congress could try to pass new campaign finance reform laws, avoiding the elements that the Supreme Court found unconstitutional.
  • The president, with the advice and consent of the Senate, could appoint new Supreme Court justices, who could overturn the Citizens United
  • Congress could legislate public financing of all federal political campaigns.
Candidates and elected officials: Financial disclosures, transparency, and nepotism

Congress could pass federal laws that require candidates and elected officials to disclose their tax returns and their assets and other financial interests. We already have laws preventing nepotism, but the president is exempt from that law; we should fix that, and make the president and vice president subject to the same law as our legislators. However, it’s unclear whether courts would consider such laws constitutional.

Fixes Through Constitutional Amendments

Some fixes require a constitutional amendment, an exceedingly high bar to pass. In at least one case, dealing with the completely unrepresentative makeup of the US Senate, even a constitutional amendment may not be available as a fix.

Article V of the Constitution provides two methods for proposing amendments to the Constitution. Congress, by a two-thirds vote in both chambers, can propose an amendment. This is the only method that has been used so far. Two-thirds of the state legislatures can also request Congress to call for a constitutional convention for the purpose of proposing amendments. To become part of the Constitution, a proposed amendment must be ratified by three-fourths of the state legislatures or three-fourths of state conventions, whichever mode of ratification is specified by Congress. Amending the Constitution is difficult. In the 230 years since the Constitutional Convention of 1787, we have only managed to adopt 27 amendments, including the first ten (the Bill of Rights).

A constitutional amendment is a most desirable fix, precisely because it is so difficult to undo; but for exactly the same reason, it is also the most difficult to achieve.

However, it may be possible to design a fix that accomplishes all or most of a reform objective without requiring an amendment to the Constitution. Such might be the case, for example, with the direct election of the president, in which a compact among states may be sufficient to bypass the winner-take-all practices in 48 of the 50 states.

Manner of choosing the president

A constitutional amendment to adopt the Local-State-National presidential voting scheme is much better than the Local-State-National Interstate Compact precisely because no state can undo it. An amendment would also eliminate the electoral college and the possibility of sending the presidential election to the House of Representatives.

Chamber of Deputies to replace the US Senate

Even one or more constitutional amendments may not bring about this fix, but clearly the constitutional amendment route or a brand new Constitution are the only fixes available.

Apportion House seats based on voting rather than population

This amendment would provide that the decennial reapportionment of House seats to the several states be based on the average number of votes cast in each state in the two most recent presidential elections (rather than the population of each state, as at present). However, for drawing the boundaries between Congressional Districts within a state, population figures must be used.

Candidates and elected officials: Financial disclosures, transparency, and nepotism

This amendment would require all federal elected officials to disclose their tax returns, their assets and liabilities, and their continuing financial interests. It would also prohibit federal elected officials from hiring, nominating, or appointing any immediate family member to any federal position.

Comprehensive constitutional amendment on electoral reform

For all the electoral reforms proposed in Part II, a single constitutional amendment might be best. The proposed amendment would cover both the principles and the procedures of all federal elections. For safety’s sake, it should also give Congress the power to modify procedures that turned out not to work as intended. Such an amendment would:

  • change the basis for reapportioning seats in the House;
  • reconstitute the Senate as the Chamber of Deputies;
  • determine the time, place, and manner of voting for all primary and general elections for all federal offices,
  • require Ranked Choice Voting;
  • require multi-seat Congressional Districts;
  • require an automated redistricting program to draw Congressional District boundaries in every state based only on population and geography;
  • establish the election schedule for all federal primary and general elections, including three rounds of presidential primaries and one National Primary Day;
  • require open primaries, with all candidates for a given office competing against each other in a single primary, without regard to political party;
  • establish uniform, convenient voting procedures throughout the country;
  • establish the rules by which candidates qualify for primary and general elections;
  • establish a vice presidential primary and general election, separate from the election for president;
  • establish the LSN voting scheme for determining the winners of the presidential and vice presidential elections, while eliminating the electoral college;
  • establish a National Voter Registration Authority to provide universal, automatic voter registration and a permanent Voter Identifier for every eligible citizen;
  • remove political parties from all election laws and regulations;
  • allow Congress to modify any of these procedures which turn out to have been ill advised.

Fixes Through Cultural Change

Many of the fixes proposed in this paper will only become useful improvements to our democracy when people believe in them and act accordingly. That will require a cultural change. Let me recite a few examples:

  • Ranked Choice Voting only really works if voters mark their ballots with more than one choice for each office. Even if RCV is the legal voting procedure, if few voters vote for more than their 1st choice, then the candidate with a plurality after round 1 will always end up the winner as other candidates are progressively eliminated. So we will need a significant public education effort to encourage voters to understand and use their enhanced voting power.
  • We can establish an official season for electioneering that begins on July 4, but because of our First Amendment freedoms, candidates can say anything they want at any time. Therefore, the public’s recourse is to discourage media outlets from giving free coverage to political campaigning outside the approved season, and to punish at the polls those candidates who violate the agreed-upon conventions.
  • Many Americans have become apathetic about politics, disengaged from political discourse all together. Compared to other Western democracies, America’s voter participation is abysmal. A significant percentage of our fellow citizens have become completely disenchanted with Congress (which garners an 11% approval rating from the public), and we have turned away from the two major political parties: For twenty years, new voters are opting more and more to register as independents, if they even register to vote at all. The various fixes proposed in this paper could motivate uninvolved citizens to re-engage in the political process. When we empower people more than parties, when independents can participate in primaries, when every vote counts, when people see that they can have more opportunities to contribute and more leverage to affect the outcome, then and only then can we entertain the hope that the new cultural norm will favor engagement over apathy.

[1] http://www.baltimoresun.com/news/maryland/politics/blog/bal-senator-proposes-twostate-solution-on-redistricting-reform-20160209-story.html. [Accessed July 25, 2017.]

2.2 Fix the Two-Party System

2.2.1 Open Primaries

We need to mandate open primaries for all federal offices (president, vice president, and both chambers of Congress). Any eligible candidate may compete in any open primary, subject to state rules for qualifying for the ballot. Open primaries are non-partisan, although the ballot may indicate the party affiliation of each candidate. All registered voters are eligible to vote in every primary for every office within the jurisdiction where they legally reside.

Ranked Choice Voting (RCV) rules apply to all primaries. The only way to appear on the general election ballot is to earn sufficient support in the primary to qualify for the general election.

For primaries in elections for a single seat in Congress, 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.

See Section 2.3 for the primary rules for the offices of president and vice president.

2.2.2 Party Caucuses and Conventions

Political parties may continue to hold elections for party offices, and they may hold caucuses and conventions at any level at their own expense. Such activities are completely independent from the public primary elections. Endorsement by a political party helps a candidate raise money and enlist volunteers for a campaign, but that endorsement gains nothing with respect to the primary election itself. Candidates must still qualify to appear on the primary ballot according to the rules of each state, and they must survive the primary to compete in the general election.

2.2.3 All Other Laws, Regulations, and Practices

Statutes and regulations should not mention political parties. Period. Regulations that pertain to benevolent associations of any kind should apply equally to political parties.

The objective here is not to end political parties. As mentioned earlier, political parties can be quite useful in a democracy. Rather, the objective is to remove the legal impediments which inhibit the growth of new parties and which discourage unconventional candidates from running for office.

2.1 Ranked Choice Voting

2.1.1 Relevance

This fix relates directly to Challenge 4. “Other election system challenges”, especially the two sub-challenges that address the lack of runoff elections and the exclusive use of single-member Congressional districts. However, this fix also relates to Challenge 1 (regarding how we choose the president and vice president) and Challenge 3 (the problem of gerrymandering). Therefore, because it has such general applicability to all elections, it deserves to be argued first.

The problem is that the traditional First-Past-The-Post (FPTP) voting scheme leads to undemocratic outcomes, elected officials who often fail to represent the majority of their constituents, and literally millions of voters with no effective representation at all.

2.1.2 Restating the Problem

We have many too many election winners who win with a plurality, that is, with less than majority support from the voters, both in our primary and in our general elections. A person might become Mayor or Congressman or Governor, and only have achieved 40% of the vote, while two or more competitors split the other 60%. It’s difficult to claim to have a mandate when you have earned the trust of only 40% of the voters. Governing after such an election, a public official might only look to that 40% base of voters for support.

In many multi-winner elections (such as city councils, school boards, and some Congressional primaries), the existing system results in elected bodies that represent only a portion of the electorate. In a partisan election for five positions, voters will often choose all five candidates from their own political party; and if one party has 51% support, then all five of their candidates win while the other party or parties get zero winners. Theoretically the outcome of such an election ought to result in a 3-to-2 majority for the party with 51% support, not a 5-to-0 wipeout.

Voting systems that provide for the election of at least some candidates representing all views with significant support are called “Proportional Representation” systems. In such systems, in a partisan election for a five-member city council, a 3-2 outcome in favor of the 51% majority party should be the expected outcome.

Ranked Choice Voting is one such “Proportional Representation” system.

2.1.3 What is Ranked Choice Voting (RCV)?

RCV is a system of voting and of counting ballots that is designed to ensure that 1) the candidate who wins an election with a single winner has demonstrated some level of support from a majority of the voters, and 2) the collection of candidates who win in a multi-winner contest represent all the views held by a significant portion of the electorate.

2.1.4 Ranked Choice Voting Procedures

RCV from the voter’s perspective

From the standpoint of the voter, Ranked Choice Voting is easy and straightforward. After selecting their 1st choice for any office, voters are allowed (but not required) to also select a 2nd choice, 3rd choice, and so on, limited only by the number of names on the ballot. The voter’s procedure is the same no matter if an election will have one winner (like the general election for governor) or multiple winners (like a city council).

Counting ballots and determining winners

The procedures for counting ballots are somewhat more complex. The general principles are these:

  1. in an election with only one winner, at least half the voters should support the winner to at least some extent, and
  2. in an election with multiple winners, all candidates who meet a certain threshold of support are winners, considering every voter’s ranked choices.

The mathematics of counting ballots are detailed in an addendum at the end of this post.

2.1.5 Expected RCV Results

Elections with one winner

For elections with only one winner, RCV produces winners with wider support than a system that declares the person with a plurality as the winner.

Here is a typical example: In a village with 100 voters, 60 voters belong to Party A and 40 voters give their allegiance to Party B. One year, in a particular election, Party A and Party B each field one candidate, but a former Party A leader who still has strong support within the party does not like the official Party A candidate and so decides to run as an Independent. Perhaps the Party A voters give 35 votes to the official Party A candidate and 25 votes to the Independent, while Party B’s voters all support the one Party B candidate. As a result, Party B’s candidate wins the election with 40 votes, even though a majority of the town’s voters clearly do not prefer that candidate.

With RCV, a different outcome is more likely. The Party A voters who defected to the Independent as their 1st choice would likely choose the regular Party A candidate as their 2nd choice. Therefore, when no one has 51 1st choice votes, the candidate with the fewest 1st choice votes, the Independent, is eliminated, and the votes for the Independent are reassigned to each voter’s 2nd choice. As a result, Party A’s candidate wins the election. In terms of governing, the Party A candidate can claim to have the support of most of the voters and is also more likely to hear the voices of those who originally had supported the Independent.

Because everyone recognized the possibility of this scenario coming true, with RCV the candidates are more likely to try to appeal to the voters who support their opponents. Candidates will use an argument along the lines of, “I understand your support for one of my opponents as your 1st choice, but I would certainly like to earn your vote as your 2nd choice.” Then, in a close three-way election, the candidate best able to appeal to his opponents’ voters is most likely to win. That outcome is good for democracy.

Elections with multiple winners

The same village with 100 voters has a three-person village council, all elected at large. Without RCV, in a typical election year, Party A and Party B each put up three candidates (though Party B often has trouble finding three candidates to run, since they have so little chance of winning). The voters vote for three candidates. Most of the time, as expected, the three Party A candidates each get 60 votes and all are elected.

Now look what is likely to happen with RCV. To make this simple, let’s assume that the Party A voters all agree that Candidate A1 is their first choice, Candidate A2 is their 2nd choice, Candidate A3 is their 3rd choice, and they do not vote for any other choices. Similarly, Party B’s voters agree on their preferences for Candidates B1, B2, and B3, in that order.

When an election has three winners, the threshold for winning is 25% plus 1 vote – in this village, 26 votes. That is because if one candidate has 26 votes in an election with 100 voters, it is mathematically impossible for three other candidates to beat him.

So in this village, when the votes are counted, Candidate A1 is declared a winner, because he has 60 1st choice votes, more than the 26 needed to win. Candidate B1 is also a winner, with 40 1st choice votes. No one else has any 1st choice votes. So the first step is to use the excess votes for the winners, and reassign those to the voters’ 2nd choices. In this case, the 34 excess votes for Candidate A1 are reassigned to Candidate A2, making Candidate A2 the third winner. Party A ends up with two seats on the village council, and Party B has one seat. That is, Party A has two-thirds of the seats on the council, not terribly different from the 60% majority it holds with the voters, while Party B gets one seat on the council, not too distant from the 40% minority it has among the voters. But clearly this result is more representative of the village voters than a three-to-nothing rout would be. In fact, because of RCV, in future elections Party B will find it easier to recruit candidates to run.

2.1.6 Additional Rationale

Basically, the credibility of a democratic electoral process derives from the winner’s ability to claim the support of a majority or near majority of the voters. Credibility also depends on the public’s perception that the process is inclusive, fair, and reflects the views of most of the constituents. In many three-candidate races, this is simply not the case, especially if the winner represents a plurality but minority view.

First-Past-The-Post (FPTP) vote-counting is a major impediment to new grassroots movements, new political parties, and lesser-known candidates. Voters shy away from voting for a third party or for an attractive but upstart candidate because they are afraid to “throw away their vote” on a candidate or a cause that cannot possibly win. RCV eliminates that barrier to supporting the candidate or party the voter really likes. The RCV vote-counting procedures ensure that, if no one wins the election outright, and if the voter’s top choice is eliminated, that voter’s second choice will be counted.

We have long had exactly two major political parties, and so most of our general elections come down to a choice between the Republican and the Democrat. Occasionally, we have three candidates with significant public support, and these general elections present situations in which RCV works really well.

We also often have primary elections with three or more candidates, and again the RCV system improves the process. All the candidates who survive the primary will have demonstrated significant support among the electorate, and nobody makes it to the general election just because several other candidates split the vote.

Critics: The major criticism of RCV is that voters find it confusing; and, say some, many voters simply refuse to vote for any candidate beyond their 1st choice. But experience with RCV does not support this contention.

Costs: The jury is out as to whether RCV would save or cost money. It certainly saves the cost of holding a traditional runoff election, where such a runoff would otherwise be required. But voting machinery may need to be replaced to support RCV, and funding for voter education would also be needed. These are all one-time costs, while RCV’s benefits continue indefinitely.

2.1.7 RCV in the US and Around the World

32 of the 50 US states have adopted or have pending legislation to require or to permit Ranked Choice Voting in municipal, state, or federal elections or party caucuses and conventions. Of these 32, Maine has adopted RCV statewide; 9 states (MD, MA, TN, FL, MN, CO, NM, CA, and OR) mandate or allow RCV for municipal elections; 5 states (LA, AR, MS, AL, and SC) use RCV for military and overseas voters (where mailing delays would make it difficult for those voters to participate in runoff elections); 4 states (UT, TX, IA, and VA) use RCV in party elections; and the other 13 states have legislation pending in 2017 to implement or permit RCV in some of their elections.

Australia uses RCV for its national parliamentary elections. In their system, every Australian citizen is required to vote, and every voter must rank order all the candidates on the ballot in order of their preference. In the most recent elections for the Australian Parliament, the candidate receiving the most first place votes won 90% of the seats in parliament; but 10% of the seats were won by a candidate who received fewer first place votes in the initial count, but who captured a majority of the votes only as candidates at the bottom of the tally sheet were successively eliminated.

There are many variations on the Ranked Choice Voting basic scheme, sometimes called Instant Runoff Voting (IRV): see this article on Instant Runoff Voting (IRV) in Wikipedia for the details (https://en.wikipedia.org/wiki/Instant-runoff_voting).[1] The article lists the historical and current uses of IRV around the world. For details on American use of RCV and prospects for wider adoption, see the articles at http://www.FairVote.org.

2.1.8 Congress’s Power to Act

RCV can probably be implemented by a federal statute, safe from a constitutional challenge, at least with respect to Congressional elections. The Constitution clearly states that Congress has the power to fix the “Times, Places, and Manner of elections for Senators and Representatives”, and Ranked Choice Voting deals with the manner of elections.

One can argue that this power extends to the election of the electors for president and vice president (the members of the electoral college), since the Constitution clearly wanted to give Congress the power to control elections for federal offices by the people – and at the time of the writing of the Constitution, the people were not constitutionally empowered to vote for the presidential electors. Now that we are everywhere so empowered, Congress probably has the right to fix the manner of elections for president as well. Constitutional scholars can argue whether Congress has this power.

2.1.9 Addendum: Counting Ballots with Ranked Choice Voting

The procedure for counting votes in an RCV election depends on whether the election has one winner or multiple winners.

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

The objective here is that the winning candidate should demonstrate some level of support from a majority of the electorate.

 

  • First, if one candidate has a majority of the 1st choice votes, then the objective has been satisfied and that candidate is the winner.
  • Then, 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”.

 

Some critics have suggested that this will not really work, because few voters will opt to make a 2nd or 3rd choice. But experience with RCV around the world does not support that conclusion. Voters do learn fairly quickly that RCV really does give them a greater voice in the outcome. It allows them to vote for their referred candidate first, knowing that their vote will be reassigned to their 2nd choice if no candidate has a majority and their 1st choice is eliminated.

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

The objective in an election with multiple winners is to ensure that all views held by a significant portion of the electorate are represented by at least some of the winners. Essentially, the way this is accomplished is that the number of votes needed to guarantee victory is calculated (called the Actual Threshold (AT)). For example, if an election will have two winners, then the AT will be one-third of the total votes cast, plus one vote. That amount guarantees victory because it is mathematically impossible for two other people to also have that many votes. When a candidate’s vote total exceeds the Actual Threshold, the procedure involves calculating what portion of each vote for the winning candidate was needed to reach that threshold, and then reassigning the excess portion of each voter’s vote to each voter’s next highest choice among all candidates not yet elected or eliminated. If this procedure still results in too few winners, then the candidate with the fewest votes is eliminated, and all of that candidate’s votes are reassigned to each voter’s next highest choice.

 

Admittedly the math here is a bit daunting. Hopefully you can follow it. You can also see a visual demonstration of these procedures by visiting FairVote.org, open the Fair Representation Act page, and click on Demo.

 

  • Definition of variables:
    • N = number of winners for an election with multiple winners.
    • Threshold Percent (T%) Plus One Vote (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. For example, if a general election will elect three members of Congress, then T%+1 = 100%/4 or 25% of the total vote, plus one vote. This is because, if one candidate reaches that threshold, it is mathematically impossible for three other candidates to also have 25% + 1 vote. T%+1 can be calculated at any time and is always the same for any election with a given number of winners.
    • 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. This can only be calculated after the election, when the total votes cast is known. For example, in an election with three winners and 1000 votes cast, the AT is 251. Any candidate with at least 251 votes is elected.
    • 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. It is calculated as AT/WV. For example, if 251 is the Actual Threshold, a candidate who earns exactly 251 votes is elected, but needs 100% of every vote to reach the AT. But if that candidate had 400 votes, then only 62.75% of each voter’s vote would be needed to meet the threshold.
    • 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%. Continuing the same example, where W% was calculated as 62.75%, E% would be 37.25%.
  • 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).

[1]  Admittedly, Wikipedia is not the world’s most reliable source of information, but this long and well-referenced article seems to be an excellent primer on this topic.

Article VII: Amendments; Petitions; Panel of Scribes

Section 1. Citizen Petitions; Initiative and Referendum; Power to Amend

Any citizen may initiate a petition to create a new federal statute, repeal an existing federal statute, or amend this Constitution II. A new Citizens Petition becomes a Validated Citizens Petition after it has been signed by 500,000 voters. A Validated Citizens Petition will be vetted by a Panel of Scribes.

A constitutional amendment may also be proposed by an Act of Congress, approved by a two-thirds majority in both chambers.

The power to adopt a proposed amendment to this Constitution II of the United States rests solely with the citizens of the United States.

Section 2. Panel of Scribes

2.1 Composition

The Panel of Scribes consists of three published authors, selected for their ability to compose clear and concise prose. They shall be nominated during the first year of each presidential term of office, as follows:

The Chief Justice of the United States, by February 1, shall nominate a lawyer;

The Speaker of the House, by April 1, shall nominate a journalist; and

The Vice President of the United States, acting as the presiding officer of the Senate, by June 1, shall nominate a poet, novelist, or other author, who will also serve as the Chair of the Panel of Scribes.

Either chamber of Congress, by majority vote taken within one month after a Scribe has been nominated, can disapprove that nomination; in which case, the nominating official shall nominate a replacement within one month after the disapproved nominee shall have been disapproved.

The Panel of Scribes takes office when all three Scribes have been nominated and the period during which their nominations can be rejected by either chamber has ended.

2.2 Eligibility and Compensation

All three Scribes must be citizens and registered voters and must have voted in at least one of the last two presidential elections. All must be published authors. None of them can be a public official. They must reside in three different states. At least one of them must be male, and at least one of them must be female.

While the Panel of Scribes is in session, Scribes shall be compensated at the rate of $1 per day, or as otherwise provided by Congress. Travel and per diem expenses of each Scribe and administrative expenses of the Panel shall also be reimbursed by the US Treasury.

Section 3. Duties and Responsibilities

All Validated Citizens Petitions will be submitted to the Panel of Scribes. A constitutional amendment proposed by an Act of Congress will also be submitted to the Panel of Scribes.

The Panel of Scribes will make any necessary changes to a Validated Citizens Petition to ensure that the wording is clear, accurate, and consistent. For both a Validated Citizens Petition and a constitutional amendment proposed by Congress, the Panel will also create and approve a summary statement of the arguments for and against the proposal. The revised proposal, including the summary and the pro- and con-arguments, will then be published and circulated generally.

Section 4. Meetings

The Panel of Scribes shall convene for one session every four years, beginning on September 1 of the year in which nominated or one month after the Panel takes office, whichever is later. This session continues until the Panel has published every Validated Citizens Petition and every constitutional amendment proposed by Congress received before the Panel session began, after which the Panel of Scribes shall adjourn sine die.

The President of the Senate, at his discretion, may convene one additional extraordinary session of the Panel of Scribes, after its one compulsory session has been adjourned, and before the next presidential election year begins.

Section 5. Decisions of the Citizens

5.1 For a Validated Citizens Petition:

After publication by the Panel of Scribes, petitioners have two years in which to gather sufficient signatures to put the measure on the ballot.

A successful Petition is one that is signed by at least 1% of the number of voters for President in the most recent presidential general election, including at least 1% of the voters in nine states. A successful Petition will appear on the ballot at the next Congressional general election.

5.2 For a Constitutional Amendment proposed by an Act of Congress:

After publication by the Panel of Scribes, the proposed Amendment will appear on the ballot at the next Congressional general election.

5.3 Results of the Referendum:

If a ballot measure to create a new federal statute is approved by a majority of all votes cast, including a majority of the votes cast in a majority of the states, then the proposed federal statute becomes law.

If a ballot measure to repeal an existing federal statute is approved by a majority of all votes cast, including a majority of the votes cast in a majority of the states, then the federal statute is repealed.

If a ballot measure which proposes a constitutional amendment (whether initiated by a Citizens Petition or by an Act of Congress) is approved by two-thirds of all votes cast, including two-thirds of the votes cast in two-thirds of the states, then the proposed constitutional amendment becomes part of this Constitution II.

Article VI: Elections

Section 1. General Provisions

1.1 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.[1]

1.2 Conduct of elections

All elections are conducted by the several states and by any other United States territories or possessions so authorized by Congress.[2] A secret ballot is guaranteed. Votes may be cast by mail provided such votes are received by the last day of the election; votes may also be cast in person for nine days, ending on the last Sunday of the election, except that a state may choose to conduct its entire election by mail.[3]

1.3 Ranked Choice Voting

Ranked Choice Voting (RCV)[4] is mandatory for all federal elections. After selecting their 1st choice for any office, voters are allowed (but not required) to also select a 2nd choice, 3rd choice, and so on, limited only by the number of names on the ballot.

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 Vote (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).

1.4 Open primaries

Open primaries are mandatory for all federal elections (for President, Vice President, and both chambers of Congress).[5] 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.

1.5 Fundraising and transparency

No candidate for a federal office may personally engage in fundraising nor appear at a fundraising event while Congress is in session, that is, before July 4 of the election year, unless Congress adjourns sine die before that date.

To appear on a primary ballot, a candidate must authorize the US Treasury to release, two weeks after the National Primary, 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.[6]

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 2. Elections for President and Vice President

2.1 Elections and Terms of Office.

The President and the Vice President shall be elected directly by the voters in years evenly divisible by four.[7] Votes for President and for Vice President in both the primary and general elections shall be cast and counted by Congressional District (CD). 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. 

2.2 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 are considered one Non-State Primary Election District. For each 1 million inhabitants or portion thereof, this Non-State Primary Election District is awarded one Nominating Vote.
  • The primary election 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.

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 presidential primary automatically qualifies to appear on the ballot in all remaining presidential 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. 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 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 Senate, or for the House. A person can be a candidate for only one federal office at a time.

2.3. Primary Election for Vice President[8]

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 candidate will appear on the general election ballot for Vice President in any state.

2.4 Local-State-National (L-S-N) general election voting system 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.

The L-S-N voting system determines the winner at each level – local, state, and national. 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; in each state, 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 all Electoral Votes, 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.[9]

Section 3. 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 Senate 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 Senators allocated to that state.[10] 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.

Each CD will elect one Senator, provided, however, that a state’s voters, by a majority vote in a referendum, may choose to elect all its Senators at large.

For primaries in elections for a single seat in the House or Senate, 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.

In the general election, the RCV procedure for single-winner elections will determine the winner of an election for a single seat, while the RCV procedure for multi-winner elections will determine the winners in multi-winner contests.

Section 4. Dates of Primary and General Elections, Convening of Congress, and Inauguration

Federal elections for Congress occur in even-numbered years; presidential and vice presidential elections occur in years evenly divisible by four. For each primary or general election, the nine-day period for 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 Senate): 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.[11]

Section 5. 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.

[1] 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.

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

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

[4] Ranked Choice Voting (RCV) is an improved system of casting and counting votes which makes democracy more fair, functional, and representative of the electorate. For voters, it is simple to implement: Voters rank order their choices for each office – 1st choice, 2nd choice, 3rd choice, and so on. Candidates campaign not only for 1st choice votes, but also for 2nd and even 3rd choice votes. When an election has only one winner, such as the general election for a single Senator, RCV ensures that the winner has support from a majority of voters. When an election has multiple winners, such as a city council or a multi-seat Congressional district, RCV helps to ensure that all widely supported views are represented, and that all winners are supported by a significant percentage of the electorate. See http://www.fairvote.org/rcv#how_rcv_works to read how it works in detail.

[5] 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.

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

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

[8] The vice president has become president 14 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.

[9] As long as the number of seats in the House is an odd number, an Electoral Vote tie between the last two candidates is impossible.

[10] 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, and 14 more states would have just two Congressional Districts – which goes a long way towards solving the gerrymandering problem.

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

 

Article V: Debts, Supremacy, and Oaths

All debts contracted and engagements entered into before the adoption of this Constitution II shall be as valid against the United States under this Constitution II as under the 1787 Constitution.[1]

The notion of a “national debt ceiling” has no meaning or merit whatsoever. When Congress legislates expenditures from the United States Treasury and the Treasury borrows money to make those expenditures, then the resulting debts are a sovereign debt of this nation and must be repaid.[2]

This Constitution II and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution II; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

[1] The 1787 Constitution contained basically the same idea in the first paragraph of Article VI, but in that case it referred to the validity of debts of the United States entered into under the Articles of Confederation.

[2] This provision simply makes it clear that, when the United States borrows money, the debt must be repaid.

Article IV: The Judicial Branch

Section 1 – Judicial Powers

1.1 Federal Courts. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme Court and inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.[1] All federal judges appointed to office under the 1787 Constitution shall continue in office under this Constitution II.[2]

1.2 Composition of the Supreme Court. The Supreme Court shall consist of nine Justices, presided over by the Chief Justice of the United States.[3] If, when Constitution II comes into effect, the Supreme Court shall have more than nine Justices, then, as Justices leave office, seats in excess of nine shall not be replaced.[4]

Section 2 – Judicial Power, Original Jurisdiction, and Jury Trials

2.1 Judicial Review. The judicial power extends to judicial review of acts of the Legislative branch, in order to judge whether such acts are in conformance with this Constitution II, and the federal courts shall have the power to invalidate any law, or any part of any law, found by the courts not to be in compliance with this Constitution II. The judicial power also extends to judicial review of all acts of the Executive branch, in order to judge whether such acts are in conformance with this Constitution II and with laws duly enacted by Congress, and the federal courts shall have the power to invalidate any such acts, found by the courts not to be in compliance with this Constitution II or the laws of the United States. In conducting judicial reviews of both the Legislative and the Executive branches, federal courts may consider both the inscribed provisions of this Constitution II and laws enacted by Congress, as well as their intent.  [5]

2.2 Judicial Power. The judicial power shall extend to all cases, in law and equity, arising under this Constitution II, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.[6]

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.[7]

2.3 Original Jurisdiction. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.[8]

2.4 Jury Trials. The trial of all crimes, except in cases of Impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.[9]

Section 3 – Treason[10]

Treason against the United States shall consist only in levying war against the United States or in adhering to the enemies of the United States, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood[11] or forfeiture except during the life of the person attainted.

[1] Copied from the 1787 Constitution, Article III Section 1.

[2] This sentence ensures continuity of the federal judiciary when this Constitution II goes into effect.

[3] This new provision fixes the size of the Supreme Court at nine justices.

[4] Future presidents will not be able to “pack the Supreme Court” in order to get a Supreme Court more favorable to the President, nor will Congress be able to prevent the President from filling vacancies on the Supreme Court. This particular check-and-balance is missing from the 1787 Constitution.

[5] This provision incorporates into this Constitution II the principle of judicial review, which has been practiced and followed under the 1787 Constitution ever since the Marbury v. Madison decision in 1803.

[6] Copied from the 1787 Constitution, Article III Section 2.

[7] Copied from the 1787 Constitution, Amendment 11.

[8] Copied from the 1787 Constitution, Article III Section 2.

[9] Copied from the 1787 Constitution, Article III Section 2.

[10] Copied from the 1787 Constitution, Article III Section 3.

[11] Corruption of blood, in British law, resulted from an act of attainder, and prevented the person attainted from inheriting, owning, or bequeathing any civil rights, property, rank, or titles. Typically, an attainted person was executed. If the bill of attainder also included corruption of blood, then the attainted person’s children could not inherit. This provision is copied directly from the 1787 Constitution, Article III Section 3. But the entire sentence appears to conflict directly with the prohibition on passing any bill of attainder, as provided by the 1787 Constitution, Article I Section 9 – Limits on Congress, and Article I Section 10 – Powers prohibited of States. All three of these clauses were accepted unaltered into Constitution II, without resolving this apparent inconsistency.

Article III: The Executive Branch

Section 1 – The President and Vice President

1.1 The executive power shall be vested in a President of the United States of America. He/she shall hold office for a four-year term, and, together with the Vice President chosen for the same term, be elected[1] in accordance with Article VI – Elections.[2]

1.2 Eligibility for the offices of President and Vice President:[3] Upon taking office, both the President and the Vice President must be

  • At least 35 years old,
  • A natural-born citizen of the United States,
  • At least 14 years a resident within the United States, and
  • Less than 6 years the President of the United States.

1.3 Lack of a qualified President elect: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.[4] If neither a President elect nor a Vice President elect shall have qualified, then the Speaker of the House of Representatives shall become the Acting President, and the first duty of the Acting President shall be to arrange for new presidential elections as soon as practicable, or to pursue whatever actions are necessary to qualify the President elect or the Vice President elect; but the Acting President shall also carry out all the duties of the President until a properly-elected President or Vice President shall have qualified.[5]

1.4 Vacancy in the office of President or Vice President:[6]

  1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
  2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both chambers of Congress.
  3. Whenever the President transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
  4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President Pro Tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President Pro Tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both chambers that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

1.5 Duties of the Vice President: The Vice President, as provided in Article II, is the presiding officer of the Senate. He is also a member of the President’s Cabinet and shall carry out such other lawful duties as the President may direct.[7]

1.6 Compensation: At stated times the President and the Vice President[8] shall receive for their services a compensation, which shall neither be increased nor diminished during the period for which they shall have been elected, and they shall not receive within that period any other emolument from the United States or any of them.[9]

1.7 Oath of Office[10]: Before the President enters on the execution of his office, he shall take the following oath or affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend this Constitution II of the United States.”

Section 2 – Civilian Power over Military; the Cabinet, Pardon Power, and Appointments

The President shall be Commander in Chief of the Armed Forces of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.[11]

As Commander in Chief, the President may order the use of military force in a war properly declared by Congress in accordance with Article II Section 8. In the absence of a declaration of war, the President may employ military force to defend the United States or its allies, or for such other purposes as the President deems necessary in the national interest of the United States, provided that the President notifies Congress within 48 hours of the beginning of such a military operation, and provided also that Congress approves of such use within 60 days after such a military operation commences.[12]

He shall have Power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; he shall nominate, and by and with the advice and consent of the Senate, shall appoint Justices of the Supreme Court, provided two thirds of the Senators present concur;[13] and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, federal judges of inferior courts, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.[14]

In all cases of presidential nominations, if the Senate fails to approve or disapprove a nomination within 60 calendar days after the President has made the nomination, the President may appoint the nominee, and the nominee may temporarily assume the position to which he was nominated, pending Senate action on that nomination. Such temporary appointments expire when the Senate acts, or when a new Congress convenes, whichever comes first.[15]

The President shall have power to fill up all vacancies that may happen during the recess or adjournment of the Senate, by granting commissions which shall expire at the end of their next session.[16]

Section 3 – State of the Union, and Convening Congress

He shall from time to time give to the Congress information on the state of the Union, and recommend for their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both chambers, or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.[17]

In carrying out his responsibility to “take care that the laws be faithfully executed”, the President may issue Executive Orders which have the same effect as the law upon which the Executive Order is based, provided that any Executive Order will have an effective date not less than thirty days from its issuance, and provided further that either chamber by majority vote taken during that 30-day waiting period may prevent any Executive Order from coming into effect.[18]

Section 4 – Disqualification [19]

The President, Vice President, and all civil officers of the United States shall be removed from office on Impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

[1] Copied from the 1787 Constitution, Article II Section 1.

[2] All election procedures in Constitution II appear in Article VI.

[3] Adapted from the 1787 Constitution, Article II Section 1 and Amendment 12. One eligibility requirement has been deleted, namely, the requirement that the president and the vice president reside in different states. Since the election of the president has been completely separated from the election of the vice president, but both elections occur at the same time, we cannot know ahead of time which state the winning candidate in either the presidential or the vice presidential contest will come from.

[4] Copied from the 1787 Constitution, Amendment 20.

[5] This is a new provision, which provides an elected official with a national mandate (the Speaker of the House) as a caretaker president, until a properly-elected president can assume the office.

[6] The remainder of this section is copied from the 1787 Constitution, Amendment 25.

[7] This provides additional specificity to the duties of the vice president.

[8] Both the president and the vice president shall be compensated for their service.

[9] Copied from the 1787 Constitution, Article II Section 1.

[10] Copied from the 1787 Constitution, Article II Section 1.

[11] This provision is copied from the 1787 Constitution, Article II Section 2.

[12] This provision codifies the Authorized Use of Military Force doctrine within Constitution II.

[13] Lifetime appointment of a Supreme Court justice is a matter that should be carefully considered and receive the approval of two-thirds of the Senate. In the past, this notion has been imposed by the use or threatened use of the filibuster, but since the filibuster is eliminated in Constitution II, it is advisable to require a two-thirds majority for Supreme Court appointments.

[14] Except for the clause in italics, this provision is copied from the 1787 Constitution, Article II Section 2.

[15] Senate inaction on presidential nominations has become habitual, ordinary, and utterly ridiculous in terms of the smooth functioning of Government. This is especially (but not only) true of the judiciary. The federal judicial system cannot function without adequate judges on the bench. This provision ensures that nominees will be approved or disapproved within two months of their nomination, or they will be allowed to serve without Senate confirmation.

[16] This provision is copied from the 1787 Constitution, Article II Section 2. The words “or adjournment” were added.

[17] Copied from the 1787 Constitution, Article II Section 3.

[18] This new provision allows the President to issue Executive Orders with 30-day advance notice to Congress, but also allows either chamber of Congress to block an EO during that 30-day waiting period. The purpose is to restore some balance between unbounded presidential power and a Congress that refuses to act. With this new provision, the President has the authority he needs, while congress has the authority to limit the President. No longer will Congress be able to hide. If both chambers allow an EO to be implemented, then they must share some degree of ownership with that EO. These are new ideas: Executive Orders were not addressed in the 1787 Constitutionj.

[19] Copied from the 1787 Constitution, Article II Section 4.

Article II: The Legislative Branch

Section 1: The Legislature[1]

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a lower chamber, known as the House of Representatives, and an upper chamber, known as the Senate.[2]

Section 2: The House of Representatives

2.1 Composition

The House of Representatives shall be composed of 501 Members chosen every second year by the voters of the several states in accordance with Article VI — Elections. Congress may modify the number of members by law, provided that the number of House seats must be an odd number.[3]

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. Each Representative shall have one vote.[4]

2.2 Eligibility[5]

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 19 years a Member of the House of Representatives;[6] and
  • A resident of the state from which he/she shall have been chosen.

2.3 Vacancies[7]

When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.

2.4 Officers; Power of Impeachment[8]

The House of Representatives shall choose their Speaker and other officers and shall have the sole power of impeachment.

Section 3: The Senate

3.1 Composition[9]

The Senate of the United States shall be composed of Senators from each state, chosen by the voters for a six-year term of office; and each Senator shall have one vote.  The number of Senators 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 Senator.[10]

Seats in the Senate 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 Senate, and one-third of the Senate seats from each state, shall be elected every two years.[11]

When, due to the decennial Congressional reapportionment, the number of Senators for any state is decreased, the next Senator from that state whose six-year term of office is expiring shall not be replaced after his term expires. When the number of Senators from any state is increased, a new Senator 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 Senate remains elected every two years, and one third of the Senators from each state remains elected every two years.[12]

The first election cycle following reapportionment will include separate primary and general elections for all three Senate 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.

The election of Senators shall take place in accordance with Article VI – Elections.

3.2 Eligibility[13]

When he/she takes office, a Senator must be

  • At least 30 years old;
  • At least 9 years a citizen of the United States;
  • Less than 17 years a Senator;[14] and
  • A resident of the state from which he/she shall have been chosen.

3.3 Vacancies[15]

When vacancies happen in the representation of any state, the executive authority of such state shall issue writs of election to fill such vacancies.

3.4 Officers; Power of Impeachment[16]

The Vice President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided.

The Senate shall choose their other officers, including a President pro tempore, who shall preside over the Senate in the absence of the Vice President or when he shall exercise the Office of President of the United States.

The Senate 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[17] 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 4 – Meetings

The Congress shall assemble at least once in every year, and such meeting shall commence on the first Sunday in January, unless Congress shall by law appoint a different day.

Wednesdays through Sundays from 4pm to 10pm, except federal holidays, are designated as legislative days. When Congress is in session, it shall meet on designated legislative days, unless Congress adopts a different schedule.[18] Either chamber, when it does not meet with a quorum of members present for three consecutive legislative days, shall be deemed to be in recess.[19]

Section 5 – Membership, Rules, Journals, and Adjournment[20]

Each chamber shall be the Judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each chamber may provide.

All decisions taken within each chamber shall be by majority vote of members present, except for those specific items in this Constitution II requiring a two-thirds or a three-fifths vote. [21]

Any member may make a motion to call a bill, a resolution, or a presidential appointment to the floor for a vote; and, if a majority of members present concur, that bill, resolution, or appointment shall become the first order of business in that chamber on the next legislative day; and at that time, such bill, resolution, or appointment will, by majority vote, be either approved, disapproved, or tabled for later consideration.[22]

Each chamber may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

Each chamber shall keep a Journal of its proceedings and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either chamber on any question shall, at the desire of one fifth of those present, be entered on the journal.

Neither chamber, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two chambers shall be sitting.

In even-numbered years (that is, election years), Congress shall adjourn sine die no later than July 4. Unless called back into session by the President of the United States due to a national emergency, Congress shall not reconvene until the convening of the new Congress following the election.[23]

Section 6 – Compensation[24]

Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. However, no law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

No Senator or Representative shall, during the time for which he was elected, be appointed to any office under the authority of the United States or any state which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either chamber during his continuance in office. [25]

Senators and Representatives shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective chambers, and in going to and returning from the same; and for any speech or debate in either chamber, they shall not be questioned in any other place.

Section 7 – Revenue Bills, Legislative Process, and Presidential Veto[26]

All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

The earliest effective date of any bill, when enacted by Congress, shall be July 1st following the next Congressional election after passage of the bill. An earlier effective date can only be enacted if (1) the sole purpose of the bill is to repeal a bill which has not yet gone into effect, or (2) an earlier date is agreed to by three-fifths of members present in both chambers upon final passage of the bill.[27]

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; If he approves the bill, he shall sign it, but if not he shall return it, with his objections to that chamber in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that chamber shall agree to pass the bill, it shall be sent, together with the objections, to the other chamber, by which it shall likewise be reconsidered, and if approved by two thirds of that chamber, it shall become a law. But in all such cases the votes of both chambers shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each chamber respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Section 8 – Powers of Congress[28]

The Congress shall have power as follows:

To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.[29]

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices;

To conduct a census or enumeration of the United States and to maintain estimated census figures at all times. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct;[30]

To promote the progress of science and useful arts, by conducting and sponsoring scientific research and cultural and artistic endeavors;[31]

To secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries, provided, however, that copyright protection shall not exceed 50 years, and patent protection shall not exceed 25 years;[32]

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations;

To declare war, authorize privateers and other military proxies,[33] and make rules concerning captures wherever they may occur;

To raise and support the Armed Forces[34] of the United States (on land, on sea, in the air, and in cyberspace);

To make rules for the government and regulation of the Armed Forces;

To provide for calling forth state militia to execute the laws of the Union, suppress Insurrections, and repel Invasions;

To provide for organizing, arming, and disciplining the state militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress;

To protect the environment, and to provide for public health and safety by ensuring access to clean and safe water, air, energy, medicines, and the food supply;[35]

To provide financial assistance to the several states, based on the unique needs of each state, for infrastructure projects, for emergency relief from natural disasters, for fulfillment of each state’s obligations under Article I Section 3.8, and for such other purposes as Congress may deem appropriate and necessary;[36]

To provide public financing for federal elections and election campaigns, to regulate and limit campaign contributions, and to mandate full disclosure of the sources and amounts of campaign contributions;[37]

To regulate all federal elections in accordance with Article VI, provided that the actual conduct of the elections is left to the states; and to modify by law any of the provisions of Article VI, provided two-thirds of members present in each chamber agree.[38]

To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution II shall be so construed as to prejudice any claims of the United States, or of any particular state;[39]

To exercise exclusive legislation in all cases whatsoever over the District of Columbia (unless the District of Columbia chooses to become a state, in accordance with Article I Section 4}, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;[40] And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution II in the Government of the United States, or in any department or officer thereof.

Section 9. Fiscal Responsibility[41]

9.1 Balanced budget

Expenditures from the U.S. Treasury authorized by Congress for any fiscal year shall not exceed revenues received into the U.S. Treasury during the previous fiscal year, or 20% of the anticipated Gross Domestic Product of the US during the current or next fiscal year, whichever sum is greater. Exceptions to this expenditure restriction, limited to one fiscal year at a time, are permitted due to a financial exigency declared by the President and approved by Congress, or for any of these reasons:

  • To pay for a war, properly declared by Congress, or during an invasion of the United States by a foreign power;
  • For emergency economic relief during a recession/depression, defined as three consecutive quarters of negative economic growth, or a national unemployment rate in excess of 10%;
  • For emergency services in response to a natural disaster at home or abroad; or
  • For long-term infrastructure projects, financed over time.

9.2 Military expenditures

Total military expenditures of the United States, including the Armed Forces and all other military expenditures as well as foreign military assistance,

  • shall not be less than the military expenditures of any other nation not at war,
  • nor shall such expenditures exceed, except in a time of war declared by Congress, the greater of
    • three times the military expenditures of the nation other than the United States with the greatest military expenditures, or
    • the sum of military expenditures from the five nations other than the United States with the greatest military expenditures.

Military expenditures in support of a war declared by Congress or any other military action short of war must be specifically approved by Congress within 60 days after such military action commences, and then for only one fiscal year at a time.

9.3 Foreign aid

Expenditures for foreign aid and for the United Nations, not including military assistance, shall not be less than 2% nor more than 5% of the total federal budget.

9.4 Exceptions

Congress shall have the power, by a two-thirds vote in both chambers, to override the fiscal responsibilities of this section, but for only one fiscal year at a time. 

Section 10 – Limits on Congress[42]

The privilege of the writ of habeas corpus[43] shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

No bill of attainder[44] or ex post facto[45] law shall be passed.

No tax or duty shall be laid on articles exported from any state.

No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another.

The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, marijuana, cocaine, or any other mood-altering substances, in violation of the laws thereof, is hereby prohibited. In states where such substances are permitted by state law, Congress shall not prohibit them. Congress shall make no national law regarding the manufacture, import, export, possession, or use of such substances.[46]

No money shall be drawn from the Treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them shall, without the consent of the Congress, accept any present, emolument, office, title, or payment, of any kind whatever, from any king, prince, foreign state, or other public or private foreign entity.[47]

Section 11 – Powers Prohibited of States[48]

No state shall enter into any treaty, alliance, or confederation; authorize privateers or other military proxies for the state[49]; print or coin money; emit bills of credit; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.

No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of Congress.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Section 12 – Transition from the 1787 Constitution to this Constitution II[50]

After this Constitution II becomes effective, and before the beginning of the year when the first elections under this Constitution II 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 Constitution II.

Following the procedure specified in Article II Section 2.1, the 501 seats in the House of Representatives shall be apportioned to the several states. After the apportionment of seats in the House, apportionment of seats in the Senate is automatic.

The three Senate Classes shall continue as before, and on the same schedule.[51] Senators currently in office will be assigned to the same Class as at present, and will continue to serve until their current six-year terms expire, including Senators whose seats will not be renewed under the apportionment provisions of Constitution II.

Every Senate seat will be assigned to Class I, Class II, or Class III, as follows:

  1. For states with at least three Senate seats, the same number of seats will be assigned to each Class, so that, following this initial assignment, 0, 1, or 2 seats from each of these states remain to be assigned to a Class.
  2. For states with two Senate seats, and for states with two seats remaining to be assigned after step (a), one seat will be assigned to each of two Classes.
  3. All remaining seats will be assigned to a Class.
  4. The Vice President will ensure that
    1. The Class assignment of each incumbent Senator remains the same;
    2. The size of each Class in future elections is the same, or does not differ by more than one seat; and
    3. The number of seats for each state in each Class also does not differ by more than one seat.

The first Senate elections under this Constitution II will follow the procedure for the first election each decade following reapportionment, as specified in Article II Section 3.1.

[1] The 1787 Constitution is often confusing when using the term “House(s)”, which sometimes refers to the House of Representatives and sometimes refers to either the House or the Senate, or to both of them together. To avoid that confusion in Constitution II, the term “House” always refers to the House of Representatives, the term “Senate” refers to the Senate, and the term “chamber(s)” is used to refer to either or both the House of Representatives and the Senate.

[2] Slightly reworded from the 1787 Constitution, Article I Section 1.

[3] The 1787 Constitution specified the number of seats in the House awarded to each of the thirteen original states, but allowed Congress to modify the total number of House seats. A law passed in 1913 (when the US population stood at 92 million) set the total number of seats at the current 435. It seems advisable to revisit the total number of seats since we now have 330 million people, and to remove the enumeration of particular states from the Constitution. Also, it seems advisable to have an odd number of seats in order to avoid any possibility of a tie when counting Electoral Votes for president. (This will become apparent when reading Article VI on elections.)

[4] The 1787 Constitution based the apportionment of seats in the House to each state on the population of free people in each state, plus 3/5 of a person for each slave; it did not count Indians at all. In Constitution II, the total population of each state is used for drawing the boundaries of Congressional Districts, so the notion of the decennial census in the 1787 Constitution, Article I Section 2, is still needed. However, in Constitution II, the apportionment of House seats to each state is based, not on each state’s total population, but rather on the number of people who voted in the last two presidential elections. This novel idea 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.

[5] Except for the term limit clause in italics, these provisions are adapted from the 1787 Constitution, Article I Section 2.

[6] 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.

[7] Copied from the 1787 Constitution, Article I Section 2.

[8] Copied from the 1787 Constitution, Article I Section 2.

[9] One of the fundamental improvements of Constitution II over the 1787 Constitution is reconstituting the Senate so that it reflects the country’s population.

[10] That is, a state with 1 to 5 House seats will have one Senator; a state with 6 to 10 House seats will have two Senators; a state with 11 to 15 House seats will have three Senators; and so on. This provision mandates that every state shall have at least one Senator. 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 Senate districts that cross state boundaries, and thus elections handled by some entity larger than a state.

[11] This paragraph mirrors the 1787 Constitution, Article I Section 3, except for the clause dealing with the equal distribution of Senate seats from each state across the three Senate Classes.

[12] This provision could result in the election of a Senator 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 its regular six-year election cycle.

[13] Except for the term limit clause in italics, these provisions are adapted from the 1787 Constitution, Article I Section 3.

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

[15] Adapted from the 1787 Constitution, Amendment 17. However, that Amendment gave the governor the power to make temporary appointments to fill vacancies. This Constitution II stipulates that vacancies will be filled by an election, and is exactly the same for both chambers.

[16] Copied from Article I Section 3.

[17] 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.

[18] Important Congressional debates should occur in prime time and on weekends, when many more Americans could pay attention.

[19] This provision requires each chamber to be either in session or in recess. It cannot use an artificial device of meeting briefly with only a few members in order to pretend that it is still in session.

[20] Except for the two paragraphs in italics, this section is copied from the 1787 Constitution, Article I Section 5.

[21] The current rules and traditions of both chambers seem designed primarily to impede action, from the Senate filibuster and the right of any Senator to place an indefinite hold on a presidential nomination, to House rules that prevent bills from reaching the floor even though they enjoy wide bipartisan support. This provision, and the next one, restore the original intent of the 1787 Constitution, that is, Congress should act by majority vote; and most importantly, Congress should actually act.

[22] This provision allows either chamber to vote on items that a majority of the members want to vote on.

[23] This provision allows currently-elected politicians to campaign without missing important meetings in Congress, and also eliminates the “lame duck” session of Congress. Combined with the greatly shortened election season and shortened time between the general election and the convening of the new Congress and the inauguration of the new president, this also greatly shortens the time during which the U.S. Government is held in limbo between an outgoing and incoming Congress and Administration. In an era of instant communication and high-speed transportation, we no longer need the lag times necessitated in the past by slow postal service and horse-and-buggy transport.

[24] This section is adapted from the 1787 Constitution, Article I Section 6, and Amendment 27.

[25] This clause has been modified from the 1787 Constitution to remove the word “civil” before the first occurrence of the word “office”, and to add the phrase “or any state”. The purpose of these changes is to prohibit Senators and Representatives from holding military (as well as civil) appointments while they serve in Congress, including the Armed Forces of the United States as well as any state militia.

[26] Except for the paragraph in italics, this section is copied from the 1787 Constitution, Article I Section 7.

[27] This provision eliminates the need for a filibuster to delay action on a bill until “the people exercise their right to weigh in”. It also extends to both chambers the same privilege to pass emergency legislation with a super majority, but to enact normal legislation by a simple majority vote.

[28] Except for the clauses in italics, and except also for the clauses noted individually, this entire section is adapted from the 1787 Constitution, Article I Section 8.

[29] Copied from the 1787 Constitution, Amendment 16.

[30] The first sentence of this provision is adapted from the 1787 Constitution, Article I, Section 2. The second sentence is copied from the 1787 Constitution, Article I, Section 2.

[31] This clause makes the federal role in science and the arts more explicit.

[32] This new limitation on Congressional power is a response to Congress’ abuse of that power in recent decades.

[33] The 1787 Constitution used the now-obsolete phrase “grant letters of marques and reprisal”. In the 18th century, governments sometimes issued “letters of marques and reprisal”, which authorized a private vessel (privateer or pirate ship) to seize and confiscate enemy ships. Constitution II substitutes the phrase “privateers and other military proxies”, meaning essentially the same thing but employing modern terminology. The significance of this passage is that Congress – not the president or any sort of king – has this power.

[34] Constitution II refers to the Armed Forces of the United States rather than to just the Army and the Navy. It addresses all American forces, wherever they may be – on land, on sea, in the air, or in cyberspace. The term “Armed Forces” is preferable to naming the service branches (Army, Navy, Air Force, Marine Corps, Coast Guard), since a number of proposals have been made to merge all of the service branches into one, or to restructure them in some other way. The single term “Armed Forces” covers all of our federal military forces, no matter how they are organized in the future.

[35] This provision ensures that Congress has the constitutional authority to pass environmental regulations.

[36] This provision ensures that Congress can issue block grants to the states to help states meet their financial obligations, taking into account the differing needs of each state.

[37] This provision ensures that Congress has the constitutional authority to fund federal elections and to regulate election finances,

[38] Since the specific procedures of Article VI are new, it is wise to provide a mechanism to alter them without the more challenging procedure for amending Constitution II.

[39] Copied from the 1787 Constitution, Article IV, Section 3.

[40] Copied from the 1787 Constitution, Article II Section 8, with additional wording in italics concerning Washington, DC, should it choose to become a state.

[41] This is a version of the Balanced Budget Amendment, so often espoused by conservatives and libertarians. It includes limitations on overall government expenditures, as well as minimums and maximums for expenditures on the military and on foreign aid. It also includes an escape clause.

[42] Except for the clauses on liquor and other drugs, this section is copied from the 1787 Constitution, Article I Section 9, although several provisions of that Section are omitted from Constitution II.

[43] A writ of habeas corpus is a demand issued by a court to an executive over whom the court has jurisdiction, demanding that the executive bring to the court someone whom the executive is holding in confinement, and requiring the executive to explain to the court the legal justification for continuing to confine that person. This provision, including the suspension of the privilege during a rebellion or invasion, is lifted directly from British Common Law. It is included verbatim in the 1787 Constitution, Article I, Section 9.

[44] A bill of attainder makes a person or group guilty of treason or other capital offense without a trial, and also takes away the civil rights, property, and titles of the person “attainted”.

[45] An ex post facto law is a law that criminalizes behavior that occurred before the law was passed.

[46] The provisions concerning intoxicating liquors are copied from the 1787 Constitution, Amendment 21. Marijuana and other drugs have been added to Constitution II. This provision ensures that the use of alcohol, marijuana, and other mind-altering substances is entirely a state matter. The Federal Government will neither compel nor prohibit state action in this realm.

[47] Corporations and other private commercial entities were not typically instruments of monarchical power when the 1787 Constitution was written. The added words make it clear that all such foreign payments, from whatever source, public or private, are prohibited.

[48] This section is copied entirely from the 1787 Constitution, Article I Section 10,

[49] The 1787 constitution used the phrase “grant letters of marques and reprisal”. The phrase “authorize privateers and other proxies for the state” is the modern equivalent.

[50] Section 12 is entirely new.

[51] Under the current Senate election schedule, Class I Senate seats are elected in 2018 and every 6 years thereafter, Class II Senate seats are elected in 2020 and every 6 years thereafter, and Class III Senate seats are elected in 2022 and every 6 years thereafter.