by Dr. Anne Mulhern

Several years ago, as many of my readers know, the City of Lowell adopted a novel election scheme.

Previously all city council and school board seats had been general, and all voters in the city had participated in choosing every candidate in a general election. In the new scheme, the number of seats was increased and some seats were designated as district seats; elections for that seat were held only in that district. However, once elected, all councilors or school board members had the same status, regardless of whether they had gained their seat via a general election or a district election.

Why was this novel scheme adopted? Well at the time all this happened I was paying no attention and followed it from a distance.

It seems that a law firm had been hired to bring a suit against the city and had eventually forced the city to hold a referendum about how it should hold elections. The scheme now in operation is the one that won in the referendum.

We all know that lawyers don’t come cheap, but also that you have to spend money to make money. It would be interesting to know who made the lawyer investment and whether the investors have realized their expected gains. But that is a story for another article.

On the whole, I do not have any theoretical objection to the current scheme. Should I choose to run for office, I would certainly run as a district candidate in order to have a better chance of being elected, a possibility that would not have presented itself under the former scheme.

The scheme’s main drawback is a practical one: it is more complicated to administer as every district requires a different ballot.

However, as often happens when a change is made, apparently no one involved was able to predict some rather obvious consequences of the change.

I’ve written about one adverse consequence in two previous articles, Flipping a District Vote Retroactively is Especially Unjust and District 2 May Require a Special Election.

The matter at issue is how to fill a seat if it becomes vacant midterm. It turns out that the old way of filling a vacant seat, to designate the first loser from the previous general election as the replacement, which worked pretty well under the old system, is a very bad fit for the new system. I was moved to investigate this problem for the first time when it became possible that Corey Robinson’s District 2 seat might become vacant and it was then that I realized how unjust it would be to the voters of District 2 if the old rules for midterm succession were followed.

Now, as reported in another article, Election Succession Plan Gets a Hearing, there is some proposed legislation which would mandate a new rule for mid-term replacement for the City of Lowell. This is not a matter that Lowell can decide for itself. It is necessary to refer the matter to the Massachusetts legislature.

Assuming the new legislation is passed, would the scheme that it mandates represent an improvement on the current rule for midterm replacement?

The text of the proposed legislation is available at https://malegislature.gov/Bills/193/S2762.

As I’ve tried to demonstrate in my previous articles, the current mid-term replacement scheme is just plain unfair to voters, so the proposed scheme has a pretty good chance of being better.

It comes in two parts. Part (a) is straightforward; if the vacancy occurs during the first year of the term, then a special election must be held. As anybody could predict from reading my previous articles, I consider that a definite improvement over the rule currently in place. It refers the matter of replacement to the voters, as is right and proper. Unfortunately, parts (b) and (c), which deal with a vacancy occurring in the second half of the term, are irretrievably flawed.

Part (b) and part (c) are basically identical bits of legislation. The first is for the City Council seats, the second for school board seats. They are separate only, as far as I can tell, because the City Council has more members than the school board, and so that makes some numbers in the legislation different. In both cases, there are three choices available. Choice (i) is simple: hold a special election. Choice (iii) is simple: leave the seat vacant. Choice (ii) is the interesting one: appoint an eligible voter to fill the vacancy.

The reason to treat vacancies arising in the second half of the term differently from those arising in the first half of the term is an obvious one: if the vacancy falls late enough in the term, then the cost to the city of a special election, which might result in the selection of a replacement who spends only a month in office, and does no real legislative work, can not be justified. But the proposed legislation to address this problem seems to me to be not only muddled and unclear, but actually buggy.

Here is the first difficulty. There are 11 city councilors. The legislation tells us these councilors must select by voting from one of the three alternatives. According to the legislation as written, one of the the three possibilities must win six votes, a majority of the votes assuming all City Councilors are able and willing to vote.

How will this vote be implemented?

Grade school math tells us that when there are three possibilities, it is eminently possible that none of the three possibilities will win a majority of votes. To be absolutely concrete about this point, assume that four councillors prefer choice (i) and four councillors prefer choice (ii). Well, then three councillors must prefer choice (iii) and so none of the choices wins a majority vote. It is remarkable to me that in legislation that is about voting, the proposers were not sufficiently aware of the basic mathematics of voting to detect this simple problem.

The second difficulty lies in the extreme vagueness of choice (ii). Recall that this is the one where the City Councilors or the school board designate an eligible person to fill the seat.

How is that person to be chosen, and is that person chosen before or after the councilors vote to select one of the three choices?

You can see that this question makes a very big difference, but is left entirely unclear in the proposed legislation. Moreover, this is the choice that is the most unjust to voters, as it transfers the choice of a representative from the voters to their representatives;  Choice (ii) is, in a word, anti-democratic.

With all these defects in the proposed legislation how can it be fixed?

My proposal is simple: First, eliminate choice (ii) entirely and second, add a default choice in the case that the councilors can not, by voting, select between the two alternatives. The default choice should be based on the amount of time remaining in the term: If fewer than six months are left, then Choice (iii) is selected. If more than six months, then choice (i).

I believe that my proposed revision resolves all the problems that I have identified in the proposed legislation.