Constitution Writing & Conflict Resolution

Voting Rules

Except in cases where constitution making is a top-down process, driven by the incumbent executive, a deliberative body must vote to adopt elements of a text as well as to adopt or reject the final draft. The voting rules shape the ease with which delegates may introduce new ideas or amendments, the incentives for compromise and negotiation or persuasion, and the level of approval required to move the draft to ratification.

At a minimum the rules must specify:

Who can vote
Whether delegates can vote item-by-item or on whole drafts only
Whether each item is subject to one vote or two—or whether there is an initial reading, followed some days or hours later by a ballot
Whether the threshold needed to accept the language is a simple majority (majority of those present), an absolute majority, some form of super-majority (3/5, 2/3, 3/4 for example), or consensus
Whether the assembly will record votes by roll call, by secret ballot, by acclamation, or by some other rule
Whether there is a mechanism for resolving differences between drafts if more than one assembly plays a role in the development of the document (for example, a conference committee in a bicameral or tricameral legislature)
What will happen if, after several attempts, it proves impossible to secure passage of a particular item or of the whole document

The organizers of this project started with a hunch that a supermajority requirement, combined with item-by-item voting and a “two votes” or two hearing rule, would yield constitutions that embraced a spirit of compromise and attracted broader public support. We were certain that, even if little else about constitution writing was sharply defined, the decision rules certainly would be clear. Testing other good practice guidelines might remain elusive but surely we would be able to make recommendations about appropriate voting rules.

Reality clashed with expectations. In fact, voting rules often display high levels of ambiguity. Why? In case after case, we encountered assemblies whose members were sensitive to the needs of the occasion—usually the desirability of higher thresholds for more sensitive items or for slightly less-than-perfect consensus in order to move forward to ratification. African drafters often said a consensus rule was in effect, because that was, after all, “the African way.” Then they indicated that “sufficient consensus” was the operational standard, an unspecified super-majority rule. Latin American drafters often professed satisfaction with an absolute majority or even a simple majority. But when pressed they said that, “of course,” on more sensitive matters or where too little discussion has taken place a supermajority rule was used instead. Cognizant of the need to save political face, yet also to adopt a new constitution, delegates in many settings made creative use of selective absences and abstentions.

What should one make of this reality? One observation is that the practical changes many assemblies introduced converged on a narrow range of rules. Informal practices point to the desirability of supermajority voting rules on all sensitive items, if not as a general matter. Supermajority rules provide a greater incentive for people with diverse interests and viewpoints to use persuasion or to compromise. Similarly, voting item-by-item allows individual delegates with special knowledge of a specialized matter to make their information available to the assembly. It may slow the process but it also fosters more informed discussion.

If the agreed procedures call for submission of the draft to a national referendum, additional voting rules must specify the turnout and margins required for passage. Failure to state a turnout requirement means that a constitution may win implementation with considerably less than majority support.

Voting rules for referenda may also extend the ballot to members of the diaspora, citizens living abroad. This practice is increasingly common, although it can also increase the risk of irregularities. Two examples of countries that have allowed diaspora participation include Chad and Algeria (most recent).

^Top