Law and Politics: 12 Years a Slave, Ishtar and Instant Voting

In a quintessential juxtaposition, the New York Times, on practically the same pages, raised both the issue of whether Ukraine’s constitution allowed a referendum on secession by Crimea and whether the Academy Awards voting procedures fairly reflected its members’ genuine preference.  Although the latest Russian invasion obviously has a more profound effect on our country, the Academy’s “instant runoff” process is more relevant to the way we conduct our politics than any Ukrainian constitutional exegesis I would offer.

Referring to the Best Picture category, the Times reporters wrote that 12 Years a Slave “arrived at the ceremony without the air of historic inevitability” and the result “had all the earmarks of a true squeaker.”  Thus the headline:  ‘12 Years’ Enjoys a Seemingly Narrow Victory.  The truth, however, is that we will never know what the margin of victory was because the Academy never releases its vote counts.  While this Politburo-like practice has been in effect seemingly forever, apparently there have been no demands for recounts.

That said, the voting process itself is, according to some, bizarre.   Carl Bialik, for instance, the former “Numbers Guy” at the Wall Street Journal (and now working with expert number-cruncher Nate Silver), has written frequently about the voting system that produces Oscar winners.  The Academy uses a form of instant run-offs for its major nominations, where its voting members assign a numerical rank to their choices, with their favorite movie receiving a “1” and others receiving a “2” or “3.”  A movie with the least “1”s has its ballots re-assigned to the voters’ second choice.  According to Bialik, it is a procedure that could allow a less popular movie (even an awful one) to win the Oscar.  Therefore, he opines, a dud like Ishtar could defeat The Godfather. 

Not so, according to proponents of instant run-offs.  Readers should consult Rob Richie’s In Fractured Oscar Field, Ranked Choice Voting Elects the Real Best Picture.  The title says it all:  the system works the way it is supposed to.

In any event, most American elections are conducted much more simply.  Voters cast one vote; the candidate with a plurality of votes wins.  It has worked pretty well for 230 years.  Of course when the winner’s plurality is relatively low, reforms are suggested.

A typical example was the New York City Democratic Primary for Mayor in 1969.   At the time, victory in the Democratic Primary was usually tantamount to election in November.  The winner, with only 32.8% of the vote, was a conservative Democratic in a very liberal, multi-candidate field.  This split-vote plurality led to New York enacting run-offs for NYC, requiring that a winner in a primary’s first go-around had to obtain 40% or face the second place winner in a second election.   In 1977 the new run-off law proved its value: in a seven way race, Ed Koch received only 19.8% of the vote in the Democratic mayoral primary; he went on to win the run-off and serve as Mayor for three terms.  (Alas, the movie Koch did not receive an Oscar nomination.)  Other states and municipalities have run-offs as well.  The procedure ensures that a winner has relatively significant support.

But run-offs cost extra money, and attract woefully few voters.  Take New York City again:  last year, the candidates for Public Advocate (an office second in line to the Mayor but with a small budget and not much power) did not receive 40% in the first vote.  So the city had to shell out some $13 million bucks for a run-off, where the turnout was a paltry 7%.

Thus, in the latest effort to reform the voting process, we are now seeing a campaign in New York City to scrap the two-step run-off and institute instant run-off.  On balance, a ranking system might make more sense than an expensive and anemic run-off vote. On the other hand, can an instant run-off system result in an Ishtar-like upset?  No, says Richie.  If the New York City Council has its way, we will soon find out.

For the record:  I don’t know what its margin of victory was, but 12 Years was a great film.

More by | Jerry H. Goldfeder Jerry H. Goldfeder , Law.com Contributor
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