Let Juries Choose Public Officials

We have been taught since childhood that popular election is essential for democracy. In reality, although it is much better than, for example, a military junta, it is a very problematic way to choose public officials and is 100% not necessary for democracy.

The US political system would be far better and far more democratic if all the public officials now chosen by popular election were instead chosen by juries randomly sampled from the people.

Another very important set of public officials that could be chosen by juries are the independent and supposedly independent public officials now chosen by politicians. For example, the independent officials chosen by the president and confirmed by the Senate, such as the Supreme Court and other federal judges, the directors and commissioners of the independent regulatory agencies such as the director of the EPA and the commissioners of the FCC and FEC, the board of the CPB, the Comptroller General, the establishment inspector generals, and similar kinds of officials at the federal, state and local level.

Juries that choose public officials could number from 25 to 1,000 or more jurors. Larger juries could choose the most important public officials such as president and state governor, and smaller juries the less important ones.

For the Classical Greeks, democracy, which they invented ((I am not suggesting that the Classical Greeks are the only people to have ever invented democracy, nor that patriarchy and slavery are consistent with democracy, whether in Classical Greece, the early US republic or elsewhere.)), was largely about decisions being made by juries chosen from the citizens by lottery. In Athens such juries included the Council of 500, the jury-courts and the jury-magistracies. The Athenian juries kept a wide range of decisions firmly in the hands of the citizens, and out of the hands of economic and political elites. A modern version of Athenian juries can do the same today, including with regard to selecting public officials.

The jury method of rule by the people has been very much marginalized since Classical Greece, but is represented in modern times by the trial jury, and in recent years by various advisory juries, including the Irish Citizens’ Assembly and the Oregon Citizens’ Initiative Review Commission.

The juries I propose here and elsewhere, which can also be called minipublics, are representative random samples of the public that convene to make one or more informed decisions. The purpose of random sampling is to ensure juries are representative cross-sections of the public, with every citizen in the relevant geographical area having the same right and chance to be chosen as any other.

Jurors can be paid to work full-time for as many days, weeks or months as needed to make an informed decision, after which they disband back into the public. As representative cross-sections of the public engaged to take the time to make an informed decision, juries are well-suited for providing the democratic ideal of informed rule by the people, including with regard to choosing public officials.

Problems with popular election in the context of the United States

Informed views are a far better basis for a decision than poorly informed ones. For this reason, rule by the people needs to be exercised in an informed way, including with regard to choosing public officials.

Unfortunately, popular election is extremely unsuitable for choosing public officials in an informed way, including because the public only learn about candidates and their platforms voluntarily in their spare time, and often pay little attention.

The empirical evidence shows that popular election voters are poorly informed, according to, for example, social scientist Michael X. Delli Carpini and law professor Ilya Somin.

Voter ignorance is a serious problem even for the elections to which the public pay the most attention, such as those for president and state governor.  For down-ballot offices such as judges, county commissioners, district attorneys and so on the situation is even worse, with voters often knowing little or nothing about the candidates.

According to the concept of “rational ignorance,” it is not rational for citizens to spend their free time learning about the candidates for the various public offices, because the chance of the one vote we each have changing an election’s outcome is almost zero.

Voter fatigue and information overload are a serious problem in popular election. The greater the number of public offices being chosen and of candidates running, and of other matters on the ballot, such as initiatives, the worse the problem tends to be.

For these reasons, popular election is very ill-suited for choosing public officials on an informed and intelligent basis.

Instead of popular election’s poorly informed voting, public officials need to be chosen on the basis of informed rule by the people. There is only one way to do this: choose public officials by jury.

Sadly, American elections do not even provide poorly informed rule by the people. Instead, de facto rule in the United States resides largely with economic elites and big business, the proverbial 1% and .01%.

Based on a 2014 study he co-wrote, Princeton politics professor Martin Gilens says, “ordinary citizens have virtually no influence over what their government does in the United States. And economic elites and interest groups, especially those representing business, have a substantial degree of influence.” (Italics added.)

Popular election is the basis for the capture and domination of the American political system by economic elites. The problem is that it costs a lot of money to run an effective popular election campaign influencing tens of thousands to millions and tens of millions of voters. This greatly advantages candidates who have piles of money behind them to pay for advertising and campaign staff, and greatly disadvantages those who do not.

President McKinley’s campaign manager Mark Hanna in 1895: “There are two things that are important in politics. The first is money and I can’t remember the second.”  McKinley decisively won the presidency in 1896, with hefty contributions from big business allowing him to massively outspend the Democratic candidate.

Noam Chomsky: “Tom Ferguson’s stellar work has demonstrated, very conclusively, that for a long period, way back, U.S. elections have been pretty much bought. You can predict the outcome of a presidential or congressional election with remarkable precision by simply looking at campaign spending.”

Far from being democratic, America’s popular elections are by and large a form of plutocracy and oligarchy.

A further bad consequence of the importance of money in popular elections is that popularly elected officials such as members of Congress,  judges and so on need to spend much of their time raising funds for the next election, rather than doing the job they were elected for. This can waste much of whatever ability they may have, and incentivises catering to economic elites and their lobbyists.

Popular elections are dominated by political parties. The president is always the nominee of one of the two main parties, as are the vast majority of Congress, state governors, state legislators and so on. There is nothing surprising about this, as political parties have the organization, resources, name recognition and motivation needed to run effective election campaigns. However, it is not at all democratic because about 40% of Americans are political independents, and if the public could become well informed about everyone interested in a public office, they might often prefer political independents, third party candidates and party members other than the party nominee.

The corporate media can heavily skew the electoral playing field against a candidate by ignoring or disparaging them, or outright smearing them, and can greatly boost the chances of others by giving them lots of coverage, especially if that coverage is favorable. This denies candidates a fair hearing on a level playing field, and to a troubling degree shifts effective rule from the people to the corporate media, all of which is deeply undemocratic.

How people vote can largely be a result of the media choices they make, and of the media bubbles they are in, rather than of an open informed choice of candidates. In addition, the media choices of a large minority of the public are quite constrained as they do not have home internet access, making it difficult for them to be reached by candidates who the corporate media tend to ignore or pooh-pooh. All of this is very undemocratic, and at odds with all candidates getting a fair hearing.

Name recognition matters in popular election. The famous and well-known have a considerable advantage over those not already known to the public. This is undemocratic as most people might prefer someone they had not heard of before, if they were to become well-informed about all the people interested in the public office.

The skewed playing field of popular election massively wastes the talent that is potentially available for public offices. Talented people of integrity who put the public good and the interests of regular people ahead of the interests of economic and political elites, face a system that is heavily rigged against them. Corporate behemoths and the billionaire class do not fund such candidates, but instead do their best to buy elections for the candidates that are aligned with their interests. The corporate media and the corporate-connected establishments of the two main parties tend to rig the system in the same direction. Some of the best candidates may be political independents, but the domination of popular elections by political parties usually gives such people little or no chance. Good potential candidates with views at odds with corporate interests, the very rich and party establishments are likely to not even run, as they know the deck is heavily stacked against them. All the more so if they have little or no public profile, and have to build name recognition from scratch.

It is essential for choosing the best possible people for public office that they be chosen from an open and level playing field, and that the choice be made on an informed basis. Popular election’s heavily skewed playing field and poorly informed voting fail to provide this.

Those who vote in popular elections are not very representative of the public, with younger citizens, poorer citizens and other portions of the public being very much underrepresented. The problem tends to be especially extreme when voter turnout is at its lowest, such as in local elections, primaries and mid-terms. This is at odds with the political equality of citizens, and with rule by the people as opposed to rule by an unrepresentative portion of the people.

Selecting public officials by jury

Instead of popular election’s poorly informed voting, skewed playing fields and unrepresentative voters, we need public officials to be chosen by the people in an informed manner, with everyone interested in public office being placed on a level playing field, and with no portion of the public being underrepresented among those doing the choosing. There is only one way to do this: select public officials by jury.

Juries that choose public officials can be called election juries and selection juries.

In selection by jury, public officials are chosen by a jury randomly sampled from the relevant geographical area. California’s governor would be chosen by a jury randomly sampled from the people of California, a member of the House of Representatives by a jury randomly sampled from their congressional district, and so on.

The procedures and arrangements for election juries need to be well-designed to ensure an informed choice, and a fair democratic process with all those interested in a public office being on a level playing field. To this end, a standing commission chosen by jury for set terms of office can be tasked with finding the best possible arrangements and procedures they can, and with improving them over time, in the light of how things work in practice. This “Commission on Jury Procedures” would play only an advisory role, with all of the rules governing jury elections being decided by juries after a fair hearing. Each commissioner would have the right to refer proposed rules to a jury for a decision. Meetings between the commissioners and juries could be overseen by an independent facilitator chosen by jury (or chosen by a chief facilitator chosen by jury).  In this manner, all aspects of the way juries choose public officials could be decided on a basis of informed rule by the people, independent from politicians, political parties and special interests.

Those wishing to run for an office would provide a written application to the jury, setting out such things as their qualifications and any policy platform they might have, and including written references. After the jurors read the applications, the candidates appear before the jury on a basis of a level playing and being given equal time to make their case to the jurors. The process could include candidate presentations to the jury, candidate debates and Q & A sessions.

Prior to the jury election, the jurors can be given an orientation, including with regard to the responsibilities, powers and public interest purpose of the public official they will elect.

A single stand-alone public official, such as a state governor, could be chosen by majority vote, for example, by the jurors voting in rounds with the candidate getting the least votes in each round being eliminated until one candidate wins by getting a majority of the vote.

After each successive round of voting the jurors would focus on the remaining candidates, who could appear before the jury for further consideration. Possibly the jurors would break into small randomly chosen groups from time to time to deliberate about the candidates.

For multi-member bodies, such as the House of Representatives, the state and federal supreme courts, regulatory commissions and the above-mentioned commission on jury procedures, it is best in my view that they are chosen by jury using a proportional representation voting method such as multi-winner ranked choice voting (RCV).

A state legislature could, for example, be chosen from four-member electoral districts with the four representatives from each district being chosen by one jury using multi-winner RCV.

Advantages over popular election

Selection by jury puts candidates for public office on a level playing field, or at least far more so than popular election does, because the candidates all appear before the jurors directly face-to-face and at length, with each of them having equal time to present their case to the jurors. Big money interests would not be able to drown out modestly funded candidates, nor would corporate media be able to shut out candidates by ignoring them, because all of the candidates get a full and equal hearing directly before the jury. Political independents would have just as much time to make their case as party nominees, and jurors would have far more to go on than mere party label. Candidates who were unknown to the public would have a fair chance, because they would have full opportunity to make themselves well known to the jurors. Fox, MSNBC and alternative media viewers would all hear from the candidates directly and unfiltered. Candidates would get a full, fair and equal hearing before the jurors, and the jurors an open democratic choice, unskewed by big money interests, corporate media and political parties.

The cost of a candidate making an effective case to a jury is far less than running an effective popular election campaign. There’s no need to a pay a fortune for advertising and an army campaign staff, because the candidate appears directly before the jury, with no need to reach the entire public with paid ads, telephone calls, door-to-door canvassers, flyers and so on. All a candidate needs is the time to prepare and present their case to the jury, preferably with the help of one or several capable assistants. This opens the door for candidates with little financial backing and no support from the media, political machines and big business, and puts them on a level playing field.

Politicians and other elected officials would be out from under the thumb of moneyed interests, billionaires, party establishments and the corporate media, as they would not need them to make an effective case for their candidacy to a jury.  The American political system would be far more democratic than it has ever been, with public officials chosen on a basis of informed rule by the people and level playing fields.

Public officials would no longer need to spend much of their time raising money for the next election. Instead, they would be able to focus on doing their job.

Popular election’s poorly informed voting, rational ignorance, voter fatigue and information overload are avoided with juries, because the jurors are paid to work full-time in a well-designed process for as many weeks as it takes to make an informed choice. In addition, no matter how many public officials juries choose, the candidates for each office, (or each set of several offices with multi-winner RCV), receive the full-time focused attention of one jury.

Selecting public officials by jury ends popular election’s massive waste of talent, because juries choose candidates on an informed basis from an open and level playing field.

Unlike popular election’s unrepresentative voters, randomly sampled juries are very representative cross-sections of the people, embodying the political equality of citizens.

Election juries would be schools of democracy for the many citizens that would serve on them over time, and for the general public looking on. This is because they exemplify democratic ideals, in particular informed rule by the people, the political equality of citizens and level playing fields.

For all of these reasons, it would be far better and far more democratic if America’s popular elections were replaced with selection by jury in the manner I outline.

Juries, not politicians, should choose independent public officials

In a democracy the people are the rulers, and are the highest and most legitimate authority, not politicians and political parties, nor the rich donors that fund their electoral victories. For this reason, independent public officials ought to be chosen by the people, not by politicians. All that is needed is an informed, fair and highly democratic way for the people to choose such officials, which is exactly what selection by jury is.

No one says the House of Representatives should be chosen by the president and confirmed by the Senate, rather than being chosen by the people. We all know that would be oligarchic and undemocratic. It is just as oligarchic and undemocratic for regulatory commissions, the judiciary and all the other independent public officials to be chosen that way, instead of being chosen by the people.

Women, as equal citizens and half the population, deserve an equal say in choosing regulatory commissions, judges and all the other independent public officials. Women are very much denied this when politicians do the choosing, because politicians are mostly men. The president has always been a man, most state governors are men, and most legislators are men. The choosing of independent public officials by politicians is for this reason patriarchal and discriminates against women.

Other portions of the public are also very much underrepresented among politicians, including those below the top few percent in income and wealth, younger citizens and the 40% or so of Americans who are political independents. This is contrary to the political equality of citizens, and has the effect of disenfranchising and discriminating against these portions of the public. As equal citizens, the 99% and the 90% deserve a say in choosing independent officials that is in proportion to their number, as do younger citizens, political independents and all other portions of the public. Randomly sampled election juries would provide exactly that.

Independent public officials need to be chosen independently from politicians in order to prevent any capture of the politicians by economic elites from spilling over into the independent public offices, and to prevent the self-interest and partisan politics of politicians from doing so.

Politicians need to be permanently stopped and recused from choosing independent public officials, because they have blatant and ubiquitous conflicts of interest regarding the choosing of such officials.

Politicians have an interest in choosing public officials that their big business and ultra-rich donors like. For example, Wall Street regulators liked by Wall Street, an EPA director liked by oil corporations and other big polluters, FCC commissioners liked by Comcast and other media giants, judges who are ideologically aligned with the .01%, and so on.

Politicians have an interest in handing out public offices as spoils of victory to their supporters, donors and fellow partisans.

Politicians have an interest in giving public offices to those who will serve their and their party’s interests while in office. For example, some presidents may have an interest in appointing FEC commissioners who ensure that election laws are not enforced, or in appointing the kind of judges who formed the 5-4 majority in Citizens United (which increases Big Money domination of American politics), and so on.

The choosing of independent public officials by politicians is blatantly contrary to basic democratic principles and ideals, in particular rule by the people, the political equality of citizens and the need for independent public officials to be chosen independently from politicians, political parties and economic elites.

Instead, independent public officials should be chosen by a method of informed rule by the people, independently from politicians, political parties and economic elites, and with no portion of the public being underrepresented among those doing the choosing. There is only one way to do this: choose independent public officials by jury.

Some further considerations about selection by jury

For the same reasons secret ballot is used in popular election, so too should election juries vote by secret ballot. The use of secret ballot by juries goes back to Classical Greece, including the Athenian jury-courts which decided cases by majority vote using secret ballot.

The identities of the jurors can be kept secret, at least until after they render their decision, to prevent candidates, political parties, lobbyists and the media from contacting them during the jury election. Such contact, outside the formal proceedings of the jury election, would be illegal and improper.

If the president is chosen by an election jury, it should be a large enough random sample to be a very representative cross-section of the people, and as such a very good stand-in for the people as a whole. Such a jury might number 1,000 to 2,000 citizens.

Less important public officials, whether stand-alone or part of a multi-member body, can be chosen by smaller juries of perhaps 25 to 100 citizens. As many such officials are chosen by jury over time, the thousands that would serve as jurors would be a very accurate cross-section of the public.

As well as being chosen by multi-winner RCV, some multi-member bodies could be chosen by a combination of that and majority vote. For example, if a five-member regulatory commission is chosen by jury, the chair can be chosen by one jury by majority vote, and the four other members by another jury by multi-winner RCV. The chair’s term of office could be staggered with that of the other four.

It may sometimes be debatable whether a public official now chosen by politicians should be independent of politicians, or considered more of an agent of, for example, a state governor or the president. In such cases a jury can decide by majority vote after a fair hearing whether the official will be considered independent and be chosen by jury. In this way the decision can be made on an informed basis by a representative portion of the public, independently from politicians and political parties. Politicians need to be permanently recused from deciding whether or not they choose public officials, because they have a blatant self-interest in concentrating the power to choose officials in themselves and their party, and keeping it out of the hands of the people.

In order to ensure a level playing field, every capable person who wishes to, must be able to run in a jury election, (as long as they meet basic requirements such as being a citizen if that is required). For example, there must not be any of the onerous signature requirements that sometimes restrict ballot access for candidates lacking the funds to pay for successful professionally run signature drives, and for lawyers that might be needed to fight signature-related court challenges by well-funded political opponents.

Sometimes many candidates might wish to run for office in a jury election, especially for important offices such as president.

One jury cannot become well-informed about hundreds of candidates and then vote in an informed manner to choose one of them. There would simply be too many candidates for that to be possible. This problem can be solved by a division of labor, using multiple juries in the manner outlined below.

Election juries can winnow down a large number of candidates to a final winner in an informed, fair and level-playing-field way, with each of the remaining candidates having equal time before the jurors at each stage in the process. There can be rounds of jury elections with the winners of each round proceeding to the next round. There can be a few weeks between rounds. Smaller juries can be used in the earlier rounds to reduce costs. Each of the jury elections before the final round can be a multi-winner election in order to help ensure that the candidate that most jurors would prefer in the final round makes it to that round.

Candidates could begin by appearing before a small jury of 10 citizens. If after reading the candidate’s application and hearing from the candidate in person, the 10 jurors unanimously agree the candidate is not a good choice for the office, that candidate would be eliminated from the race. Each 10-member jury could consider several dozen candidates one at a time.

Suppose 1,000 of the candidates who apply to be president make it past said 10-member juries. If so, the subsequent rounds of jury elections could proceed something like the following. In the first round, the 1,000 candidates are randomly sampled into 50 groups of 20, with each group appearing before a 100-member election jury, which elects three winners from the 20 in successive rounds of multi-winner RCV, perhaps first electing 10 from the 20, then five from those ten, and then the three winners from those five. The jurors could hear further from the remaining candidates between votes. Next, the 150 winners from the first round (50 x 3 = 150) are randomly sampled into 10 groups of 15 for the second round, each group appearing before a 500-member election jury which elects three winners in the same manner as in the first round. Next, the 30 winners (10 x 3 = 30) from that are randomly sampled into two groups of 15, each group appearing before an 800-member jury that elects three winners in the same said way.  Next, the six winners from that go to a final election jury of perhaps 2,000 jurors, which can convene several weeks later, and which winnows the six down to the top two in a series of multi-winner RCV votes, and then makes the final selection between those two by majority vote.

In a manner such as this, election juries can elect a public official from a large number of candidates in an informed, fair and level-playing-field way.

A presidential election jury, as outlined above, would be a highly democratic version of the Electoral College, with every American having an equal right and chance to be randomly sampled to be one of the electors/jurors in the final election jury, as well as in the prior rounds of jury elections.

There is considerable disagreement about what voting methods are best. It is the task of the aforesaid jury-chosen commission on jury procedures, and of the juries that decide the rules, to decide the voting methods used in jury elections.

In my view, although I do not mention it above in order to keep examples fairly brief and simple, the winner of single-winner jury elections for a stand-alone office such as president or mayor, should always be the Condorcet winner, the candidate that a majority of jurors prefer to each other candidate. Jury elections can be designed to ensure that this always happens. (Theoretically, there may be no Condorcet winner, but in practice this very rarely happens. If it does, then the candidate closest to being the Condorcet winner can be elected.)

Ensuring the Condorcet winner wins does not necessarily require using a Condorcet voting method. For example, single-winner RCV (aka Instant Run-off Voting) usually elects the Condorcet winner. If a non-Condorcet voting method is used, then as long as it is clear the Condorcet winner has won, no further voting is needed. If it is not clear, then, and only then, one or more further votes can be used to ensure the Condorcet winner wins. If, for example, the voting pattern indicates that the third placed candidate is or may be the Condorcet winner, then there can be a final Condorcet vote between the top three candidates, with the public office going to the winner of that vote.

It might be said that informed rule by the people is not the same thing as informed rule by the highly representative portions of the people that juries are. However, the only way informed rule by the people is possible in modern societies is through representative portions of the people, with the people ruling in turns as different citizens are randomly sampled for each jury over time.

Improving popular election

An important topic I do not discuss above is how and to what extent America’s popular elections can be improved, short of replacing them with selection by jury. My view is that they can be greatly improved, especially by using the highly democratic possibilities of juries in the ways I outline in previous articles (August 12, 2016; September 19, 2017, section 3), and say more about in a forthcoming article. However, in my view, even if the most democratic reforms that are possible for popular election were implemented, selection by jury would remain a better option, because popular election has serious inherent flaws that cannot be fixed within the context of popular election, including unsuitability for choosing public officials on an informed basis, and unsuitability for putting those interested in public office on a level playing field.

Simon Threlkeld writes about democracy and proposes that citizen juries (a.k.a. minipublics) can make modern societies far more democratic than they are. He is a former Toronto lawyer, has an MA in philosophy from the University of Toronto and a law degree from Osgoode Hall Law School. Read other articles by Simon, or visit Simon's website.