By: Tristan Blaine

Note: In general, Law Soup aims to present factual information about law and policy. However, this piece represents my personal opinions, supported by facts, of course.

Democracy is hard. Winston Churchill famously said “Democracy is the worst form of government, except for all those other forms that have been tried.”

We all know the story by now – we are getting more politically entrenched and polarized, and our politicians can’t seem to get basic things done even on the few things that most Americans actually agree on (gun control, “dreamers,” etc). And people around the world are losing faith in democracy itself.

As society becomes more and more complex, with increasing technology and a more

crowded world, the more complex laws and regulations we need. And the more important it becomes to have qualified, educated people making these regulations.

Why isn’t democracy working better? No, it’s mostly not because of “corrupt” politicians, lobbyists, Facebook, or even the Kochs. We only have ourselves to blame.

Let’s be honest. Too few of us know enough about policy and law to really be making decisions about it. It’s well documented that a large percentage of voters simply don’t know enough, with about one third of the population who can’t name a single branch of the federal government. Even with the wealth of information about policy and law (such as this website, Law Soup) currently accessible, most people still don’t take the time to learn enough to make a fully informed decision.

To be fair, modern life makes it harder and harder to stay informed. Pressures to work longer hours, and the more distractions we have, with social media, and essentially infinite video and written content, mean we take less time to delve deep into the issues.

And consider all the voting decisions currently asked of us: voting for all the various elected positions – president/VP, Congress, governor, state legislators, other state positions like state attorney general and state insurance commissioner, mayor, city council, county supervisor, judges; and on top of that, state and local ballot propositions (California had a total of 17 propositions in the November 2016 election!). To deliberate properly about each of these can take a significant amount of time, a job in itself. Perhaps it should be a job.

Then there’s the problem of voter manipulation. It’s certainly not a new phenomenon. For centuries, candidates and political parties have fought to amass enough money to blanket and overwhelm the channels of communication with sophisticated campaign advertisements designed to manipulate voters. And the less informed people are, the more effective manipulation is.

Techniques for manipulating others, particularly through social media, are getting more and more sophisticated all the time. Commentators today talk about how Facebook and other platforms need to crack down on bots and fake news. But that always struck me as glossing over the real problem, which is that voters are too easily manipulated. If people were to think more critically about the information they get, consider the source, etc, it wouldn’t be as much of a problem. But people don’t do that.

Many people believe that the solution is to try to prevent all these avenues of manipulation. But even if we were somehow able to “fix” Facebook, and institute public campaign financing, the powers that be will still find ways to manipulate voters. What if there become so many avenues of manipulation that we can’t possibly stop all of them? It’s whack-a-mole. Eventually the person or group who develops the most powerful manipulation system will win out. And that person could have so much power over voter’s minds that they rewrite the rules and “suspend” elections in the interests of national security, or in order to deal with supposed “voter fraud” (about half of Republicans appear to support suspending the 2020 elections for this reason), and people would simply accept it. At some point the people will probably regret their actions in allowing this to occur, but by that time it may be too late.

This is how quickly democracy can give way to dictatorship. Shouldn’t we do everything we can to prevent this disaster before it happens? Shouldn’t we take the keys away from the drunk, as political philosopher Jason Brennan would put it?

Brennan has made the case that many voters are like drunk people in that they are too intoxicated to assess whether they are informed enough to make a good voting decision. Thus, he says, we have a responsibility to prevent unqualified people from voting in order to prevent harm to society. In his 2016 book “Against Democracy” he also compares voting by uninformed citizens to air pollution, in that each person’s actions generally have very little impact, so people feel little responsibility to improve their behavior, but added together this can create a mess. He believes we should regulate voters like polluters.

I think he’s on to something. But one of his suggested mechanisms for fixing the system is administering civic literacy tests and only allowing those who pass to vote. However, this has been tried many times in the past, to the detriment of poor and minority voters. It’s essentially impossible to prevent these tests from being biased, either intentionally or unintentionally, or even to get a consensus on what questions should be included (and what the answers should be).

Voting is and should be a fundamental right, and our society and government is more just when everyone’s needs and preferences are taken into consideration. Thus we should not block certain people from voting altogether.

Instead of a test, we can simply vote on who is qualified to vote, and designate those people “Electors.” Those Electors would then elect the policymakers – the presidents and members of Congress, the governors and the state legislators, etc. – and vote on ballot propositions as well.

We have the historical framework for this indirect voting system. When asked what form of government the new United States would have, Benjamin Franklin said “a Republic. If you can keep it.”

The Founders actually created a Democratic Republic, with a quite indirect system of voting, both for President (Electoral College) and for U.S. Senators (who were previously elected by state legislators). Over time we have moved to a direct system for voting for Senators, and turned the Electoral College into more or less a perfunctory exercise where the Electors are (usually) voting for the candidate who received a majority of their state’s voters. There are calls to abolish the Electoral College entirely so that President would simply be elected by a majority vote by the general population of the country. But this would be a mistake. On the contrary, we should actually create a new, modern “New Electoral College,” for President and for all other elected positions and ballot propositions, that allows Electors to use their best judgment.

While the New Electoral College certainly wouldn’t be a perfect system (nothing is), as uninformed people may be inclined to vote for an uninformed Elector, it would be a significant improvement. In our current system, it is generally the case that legislators know much more about policy than the general population. On the whole, those who are interested in holding an elected position tend to be somewhat more knowledgeable than the general public (with some obvious exceptions), and the process of running for an elected position usually further encourages such hopefuls to continue to learn more about policy (again, not always the case, but true for the most part). These principles would likely apply to those interested in becoming Electors. The New Electoral College would then elevate the caliber of voting decisions, and would probably lead to higher quality legislators, and thus better policy decisions.

Democracy was established in the United States at a time when most people knew each other in their communities, and also knew the people who sought to be their elected representatives. Ideally we should have some sort of personal relationship with those we vote for, as democracies work better that way. We can have Electors represent a small group of voters (maybe 1,000), so they can get to know most if not all of their voters. In a sense, our votes will matter even more than they do now.

Electors could also act as intermediaries in communicating with policymakers and government officials. Had trouble getting a response from your member of Congress? Well, they are responsible for about 700,000 people on average. But when your Elector has only 1,000 voters to attend to, you should get a much quicker response from them. The Elector can then direct requests to the appropriate officials. With such tasks, we should even pay Electors for their work.

The best CEOs know that to be successful, you must delegate. And voting is too important not to delegate it to those who would likely have a better grasp of the issues. But like CEOs, the ultimate power rests with each of us, as we can vote against Electors if we don’t like what they are doing. To maintain control over the Electors, they could be reelected every 2 years, and possibly have term limits to ensure plenty of turnover and allow many people to participate in this process.

This New Electoral College will help us continue to expand and strengthen the right to vote, and ensure that each one of us do indeed have a say in who leads us, but in a way that works to correct for our inherent human imperfections.

As frustrating as democracy can be sometimes, the alternatives are much worse. But democracy itself can take many forms, some better than others. The solution is to choose the right form of democracy.

We must save democracy from itself – save US from ourselves.

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