Due Process: Nomos XVIII

12. Voting Theory, Union Elections, and the Constitution

12 VOTING THEORY, UNION ELECTIONS, AND THE CONSTITUTION RICHARD A. EPSTEIN 1 In his paper, "Some Procedural Aspects of Majority Rule," Professor Kramer has discussed the ways in which the general notion of due process may be applied to the rules of order used by parliamentary bodies. In the course of that paper, he has elaborated a notion of majority will that he claims has general acceptance in political theory. In this paper, which began as a comment upon his, I shall use his account of the majority will to discuss in the particular context of labor law two distinct but closely related issues. The first of these concerns the degree to which procedures adopted in certification elections-those which determine which union, if any, in a given bargaining unit should represent the workers in that unit-should conform to his account of the majority will. The second of these questions is, whether as a constitutional matter there is any violation of the due process clause when the federal government sanctions union elections that do not adopt the account of majority will that he proposes.2 In order to set the stage for an examination of these two issues, it is first necessary to set out in brief form the account of the majority will adopted by Kramer 333 334 RICHARD A. EPSTEIN and the reasons why it should be preferred to other accounts that might be substituted in its place. I. THE CONCEPT OF MAJORITY WILL The concept of majority will appears to be straightforward enough. In the usual case in which there are but two choices, that outcome chosen by more than half the voters represents the majority will. The only problem in either theory or practice concerns the selection of a mechanism of decision in the event of a tie, and that can be solved in the usual case by simple conventionas , for example, by allowing the chair to vote in deadlocked cases. Difficulties with the conception of the majority will are, however, much more acute in cases that present three or more possible outcomes for decision. One possible response to this situation is to leave the definition unchanged, and to require one outcome to be the first-place choice of more than half the voters. As such, this response assumes that the concept of majority retains a fixed content no matter how many possible outcomes are under consideration. That result might be sound as a linguistic matter, but is clearly unacceptable as a practical one, because it renders group decisions impossible in all too many cases. To meet this practical objection, it is necessary to give a weaker account of the majority will that is less literal but more functional-an account, perhaps, of the "group choice" and not the majority will. Regardless of terminology, there are at least three possible accounts of the majority will which produce divergent results in many cases. The first-rightly rejected by Kramer-states that the choice that receives the most first-place votes represents the will of the majority, even if it does not command the support of one-half the voters. The difficulty with this account is that it does not honor (except in cases of ties) the preferences of a given voter beyond his first. Take an extreme case with four possible outcomes, and suppose that one of those is ranked first by 30 percent of the voters, but last by 70 percent of them. Given this proposed definition of the majority will, that outcome will be treated as the choice of the group if each of three other choices commands less than 30 percent of the first-place votes. The second and third preferences of each voter are systematically ignored. Voting Theory, Union Elections, and the Constitution 335 A second account of majority will might turn on a system of runoffs in order to avoid the problems of plurality voting. With a runoff election, the full array of outcomes is first presented to the voters, each of whom is required to select his choice. Where no single choice has the support of more than 50 percent of the voters, a runoff election is held between the top choices-often two, but perhaps three or more-until a single choice has the support of more than 50 percent of the voters. Where the first runoff election is among three or more choices, subsequent runoff elections...