Rethinking Majority Rule: The Urgent Need to Revise Sri Lanka's Presidential Elections Act

The flaw in Preference voting electing an Executive President 

The Problem

 Laws must be clear and free from ambiguities, yet the Presidential Elections Act (No. 15 of 1981) of Sri Lanka falls short of this standard. This article highlights a significant flaw in the Act concerning the preference voting system used in presidential elections. Under the current law, preferences are disregarded if a candidate secures over 50% of valid votes, a situation that has been common since the Act's implementation. However, the political landscape in Sri Lanka has shifted dramatically in the past three years, exacerbated by the COVID-19 pandemic and the country's economic downturn. It is now increasingly unlikely for any candidate to achieve such a majority. This brings to light a critical issue: when preferences are counted due to no candidate reaching the 50% threshold, the eventual winner may not represent the majority's mandate. This flaw underscores the need for a thorough review and potential revision of the Act to ensure it aligns with the democratic principle of majority rule.

 Election Results:  Past and 2024 opinion polls

These give percentages of votes in actual presidential elections.

 

year	UNP/NDF	SLFP/SLPP/PA	JVP/NPP	SLTC	SLMP	first two	bal
1982	52.9%	39.1%	4.2%	2.7%	0.0%	92.0%	8.0%
1988	50.4%	45.0%	0.0%	0.0%	4.6%	95.4%	4.6%
1994	35.9%	62.3%	0.0%	0.0%	0.0%	98.2%	1.8%
1999	42.7%	51.1%	4.1%	0.0%	0.0%	93.8%	6.2%
2005	48.4%	50.3%	0.0%	0.0%	0.0%	98.7%	1.3%
2010	40.2%	57.9%	0.0%	0.0%	0.0%	98.0%	2.0%
2015	51.3%	47.6%	0.0%	0.0%	0.0%	98.9%	1.1%
2019	42.0%	52.3%	3.2%	0.0%	0.0%	94.2%	5.8%

 This gives a set of opinion polls for the 2024 presidential election.

(Polling firm - Institute for Health Policy)

Date	DissanayakeNPP	PremadasaSJB	Wickremesinghe UNP	SLPP	Lead	Margin of error	Sample size	first 2 total	others
Dec-23	50.0%	33.0%	9.0%	8.0%	17.0%	±1–4%	14941	83.0%	17.0%
Oct-23	51.0%	30.0%	13.0%	6.0%	21.0%	±1–4%	567	81.0%	19.0%
Sep-23	46.0%	29.0%	17.0%	8.0%	17.0%	±1–3%	599	75.0%	25.0%
Aug-23	38.0%	35.0%	18.0%	9.0%	3.0%	±1–3%	556	73.0%	27.0%
Jul-23	39.0%	33.0%	19.0%	9.0%	6.0%	±1–3%	466	72.0%	28.0%
Jun-23	40.0%	35.0%	15.0%	9.0%	5.0%	±1–3%	506	75.0%	25.0%
May-23	38.0%	34.0%	18.0%	10.0%	4.0%	±1–4%	630	72.0%	28.0%
Apr-23	45.0%	37.0%	13.0%	6.0%	8.0%	±1–4%	580	82.0%	18.0%
Mar-23	48.0%	37.0%	11.0%	4.0%	11.0%	±1–5%	521	85.0%	15.0%

 This clearly shows the following points:

1.     So far it was not necessary to count the preferences since over 50% majority was obtained.

2. In 2024 most probably a preference count will be necessary.

3. In Previous elections the first two candidates got more than 90% of the votes, 2024 it may come down to 70%

4.     2024 parties other than the first two might get about 30% of the votes.

5.     Practical first-hand experience as an election official officiated many elections, there exists confusion among voters marking preferences, and nonuniformity by the election officials in the manual preference counting, though it was not ultimately necessary some preemptive procedures were adopted. With a tight election, there will be a nightmare in counting preferences.

 Democracy in the Balance: Revisiting the Presidential Voting System and Its Implications for Majority Rule

The presidential voting system combines first-past-the-post with a modified form of instant-runoff voting (IRV) for instances where no candidate secures a majority of over 50%. In this system, voters' second preferences are considered for the least successful candidate during the initial count. This innovative method aims to ensure the elected leader receives wider support, potentially minimizing the election of a divisive figure with a narrow support base. Nevertheless, there are complexities to be navigated, particularly when selecting a leader with substantial authority. The system's efficacy is questioned when a country with a strong democratic foundation elects an executive president who wields considerable power. This predicament was evident in Sri Lanka's introduction of the executive presidency, where historically, a split vote led to concerns over the legitimacy of a leader's mandate. Presently, with major parties losing popularity, there looms the risk of electing a president without a clear mandate, highlighting a potential flaw in the system.

 In considering the dynamics of a three-candidate election where each of the 100 voters casts a vote and a preference for their second choice, a unique challenge arises in achieving a clear majority. According to the prevailing system, a candidate who secures more than 50 votes outright is declared the winner. However, in scenarios where no candidate reaches this threshold, preferences play a crucial role. Votes for the least favored candidate (third place) are redistributed based on these secondary preferences to the top two candidates. This process can significantly influence the election outcome, demonstrating that the method of elimination and preference redistribution can sometimes have a greater impact on the final result than the direct mandate of the voters. Through three hypothetical examples, we illustrate how eliminating any one of the candidates (A, B, or C) and reallocating their preferences can lead to different winners, underscoring the system's sensitivity to the preference distribution mechanism.

 Example 1 - Where all 3 candidates take the near the same number of votes

votes for A -34, this 34 divided between  preferences B 14 & C 20

votes for B -33, this 33 divided between  preferences A 17 & C 16

votes for C -33, this 33 divided between  preferences A 15& B 18

Candidate / Votes & Preferences	for A	for B	for C
Voter's First Choice: A	34	14	20
Voter's First Choice: B	17	33	16
Voter's First Choice: C	15	18	33

 

Eliminated Candidate	Remaining Candidate	Remaining Candidate votes	Eliminated Candidate Preferences	Total Votes & Preferences	highest	Winner
A	B	33	14	47	53
A	C	33	20	53	53	C
B	A	34	17	51	51	A
B	C	33	16	49	51
C	A	34	15	49	51
C	B	33	18	51	51	B

 

 Example 2 -  where 2 candidates take nearly 50% and other low

votes for A -49 this 49 divided between  preferences B 14 & C 35

votes for B -48, this 48 divided between  preferences A 2 & C 46

votes for C -3, this 3 divided between  preferences A 1 & C 2

 

Candidate / Votes & Preferenc33	for A	for B	for C
Voter's First Choice: A	49	14	35
Voter's First Choice: B	2	48	46
Voter's First Choice: C	1	2	3

 

Eliminated Candidate	Remaining Candidate	Remaining Candidate votes	Eliminated Candidate Preferences	Total Votes & Preferences	higest	Winner
A	B	48	14	62	62	B
A	C	3	35	38	62
B	A	49	2	51	51	A
B	C	3	46	49	51
C	A	49	1	50	50	A
C	B	48	2	50	50	B

 

Example 3 - one candidate takes a very high number while the other 2 very low

votes for A -90 this 90 divided between  preferences B 14 & C 76

votes for B -8 this 8 divided between  preferences A 2 & C 6

votes for C -2, this 2 divided between  preferences A 1 & B 1

 

Candidate / Votes & Preferences	for	for B	for C
Voter's First Choice: A	90	14	76
Voter's First Choice: B	2	8	6
Voter's First Choice: C	1	1	2

 

Eliminated Candidate	Remaining Candidate	Remaining Candidate votes	Eliminated Candidate Preferences	Total Votes & Preferences	highest	Winner
A	B	8	14	22	78
A	C	2	76	78	78	C
B	A	90	2	92	92	A
B	C	2	6	8	92
C	A	90	1	91	91	A
C	B	8	1	9	91

The current president, elected by Parliament, was not directly elected as a member of Parliament but was allocated a seat based on the party's total vote count. This situation raises questions about the legitimacy of his mandate in the public eye. What if future presidents elected under this system are similarly perceived as lacking a legal mandate? The executive presidency, established in 1978 to centralize power, has become a point of contention. Initially aimed at ensuring stable governance, it has increasingly been associated with authoritarian tendencies and a dilution of democratic processes. Despite widespread calls for its abolition or reform, driven by public dissatisfaction with the concentration of power, successive leaders have hesitated to diminish the executive powers that they find beneficial once in office. This ongoing cycle highlights the tension between democratic ideals and the allure of centralized authority for political maneuvering.

 The Constitution of Sri Lanka establishes the governmental structure and the general process for presidential elections but does not delve into the specifics of the voting methods, such as the use of preferences. These details are governed by the Presidential Elections Act, a separate legislative document that can be amended without a constitutional change. This act details the procedures for conducting presidential elections, including the mechanisms for voter preferences, distinct from the foundational principles laid out in the Constitution.

To amend the presidential election system in Sri Lanka, such as abandoning the preference method for a simpler model that doesn't mandate an absolute majority, would require a constitutional amendment. This process involves not only a two-thirds parliamentary approval but also possibly a public referendum since such a change would affect the fundamental democratic rights enshrined in the constitution. The constitution needs a change to reflect the correct mandate of the people

DIRECTIONS FOR THE GUIDANCE OF VOTERS

 Section 37 of the Act, gives that the Third Schedule gives instructions:

When there are two candidates: mark the figure “1” in the space provided for the purpose on the right-hand side of the ballot paper opposite the symbol and the name of the candidate for whom he votes.

When there are three candidates: specify his second preference by making the figure “2” opposite the symbol and the name of the candidate.

When there are more than three candidates:  specify his second and third preferences, by marking figure “2” to indicate his second preference and figure ‘3” to indicate his third preference opposite the symbol and the name of the candidate

 Extract from Presidential Elections Act.

Section 57. Procedure where no candidate receives an absolute majority

 

(1) Where no candidate has received more than one-half of the valid votes cast at the election, the Commissioner shall

            (a) where there are three candidates at the election—

(i) eliminate from the contest the candidate who has received the lowest number of votes,
                                                and
(ii) direct each returning officer to take such steps as may be necessary to count the second preference of each voter whose vote has been for the candidate eliminated under subparagraph (i) of this paragraph, as a vote in favor of one or the other of the remaining two candidates;
                                                or

            (b) where there are more than three candidates at the election—

(i) eliminate from the contest the candidates other than the candidates who received the highest and second highest number of votes,
                                                 and

(ii) direct each returning officer to take such steps as may be necessary—

(aa) to count the second preference of each voter whose vote had been for a candidate eliminated under subparagraph (1) of this paragraph, if it is for one or the other of the remaining two candidates, as a vote in favor of such remaining candidate;
                                                           and

(bb) where the second preference of a voter is not counted under this sub-paragraph, to count the third preference of such voter if it is for one or the other of the remaining two candidates, as a vote in favor of such remaining candidate.

 

I was an election official in 8 out of the 10 Presidential elections and had first-hand experience with the procedure since I have worked as a poll center chief, Assistant Retaining Officer, and Chief Counting officer in a counting center.

 

1.         Initially the ballot box balancing count. This will ensure that the polling stations report and the number of ballots in each box balances.

2.         Septation of ballot papers in 50 ballot bundles with a vote single candidate. This is done for each of the candidates. And bundles are piled up near to the chief counting officer.

3.         The count for each candidate is recorded and sent to the Retaining Officer.

4.        The Retaining officer will transmit it to the Election Commissioner.

5. The Election Commissioner will tally all results and see whether a candidate has obtained more than 50% of valid votes.

6.        If a candidate obtains over 50% he is declared as the winner, which was the case in all 10 presidential elections conducted in the country after 1978.(1982, 1988, 1994, 1995, 1999, 2000, 2005, 2010, 2015, 2019)

7.         However, if none of the counts did not need the preference count.

8.        In a meeting explanation of conducting the count with the Election Commissioner, I as a Chief Counting Officer pose a question to him “When counting preference if the counting officer detected that the main vote was for another candidate, though it is in the bundle of some other candidate?”. He without explaining the procedure to correct the anomaly, just sidestepped by stating “Then what is the quality of your count?”. Practically what the election officials do is treat it as a spoiled vote. Though this is illegal, so far it not not affected the final outcome of the poll.

1.         Thou this is a hypothetical mistake, when you take into account that 1550 centers and over 20,000 officials doing the count, waken till deep into the night, doing a manual counting, mistakes can happen, and there should be a method of rectifying these mistakes.

2.         However, rectifying a single mistake is a huge task, it has to be reported to the Election Commissioner, he needs to reevaluate the second place, and report to all counting stations to change the second place.

3.         If mistakes are detected there will be a never-ending count.

4.        This will be the case when the leading candidates are 3 or more with near number of votes.

The electoral counting process in Sri Lanka, designed to verify the integrity of presidential elections, faces challenges with over 1 million voters across 22 districts and about 1550 counting centers. The complexity of rectifying inaccuracies, such as misallocated votes among candidate bundles, becomes evident given the scale. This highlights the need for enhanced accuracy and fairness in managing election outcomes, especially in tightly contested races, where even minor errors could significantly impact the final result.

 

Insights and Implications

In the quest for democratic ideals, electoral systems serve as the backbone of representation and governance. A fascinating proposition emerges from a unique voting mechanism, blending the straightforwardness of first-past-the-post with the nuanced consideration of instant-runoff voting. This hybrid model, particularly in the context of electing an executive president with significant authority, merits a deep dive into its mechanics, potential anomalies, and broader implications for a democratic franchise.

The Mechanics of the Proposed Voting System

At the heart of this system lies a dual-layer approach to capturing voter preferences. Initially, it operates on a simple majority basis, where the candidate securing more than 50% of the votes is declared the winner. However, in the absence of such a majority, the system pivots to consider voters' second preferences. Specifically, the votes for the least popular candidate are redistributed based on these preferences, potentially altering the outcome in favor of a candidate with broader, albeit secondary, support.

Anomalies and Unintended Consequences

One of the most intriguing aspects of this system is its capacity to produce outcomes that challenge conventional wisdom. For instance, it's conceivable that a candidate, initially in third place, could emerge victorious after the redistribution of second preferences. This scenario underscores the system's aim to ensure a leader with wide appeal, albeit it also highlights potential anomalies:

1. Non-majority President: The possibility of electing a president who didn't secure an initial majority raises questions about the mandate's strength. In systems granting substantial power to the executive, the clarity and robustness of electoral endorsement are paramount.
2. Third-Place Winner Phenomenon: The system's design, which can catapult a third-place candidate to victory, might be seen as a democratic innovation or a flaw. This reflects the broader debate on whether elections should prioritize majority rule or aim for a consensus candidate.
3. Legitimacy and Representation: The potential for a candidate with limited initial support to win post-preference redistribution touches on critical debates about democratic legitimacy. It challenges the electorate and lawmakers to consider what constitutes a 'fair' or 'desirable' outcome in democratic elections.

Legal and Political Implications

This voting system's adoption for electing a powerful executive, such as a president, carries profound legal and political implications. In contexts where traditional parties are unpopular, or electoral landscapes are fragmented, the system's mechanics could indeed facilitate the emergence of a compromise president. While some might view this as ensuring governability and moderation, others could argue it introduces a loophole that undermines the principle of direct majority rule.

The Global Context: A Comparative Perspective

The proposed system resonates with broader trends in electoral reforms worldwide, where nations grapple with enhancing democratic participation, representation, and legitimacy. For instance, variations of ranked-choice and preferential voting have been implemented in different jurisdictions, each with unique outcomes and lessons.

Conclusion: A Reflection on Democratic Values

The exploration of this voting system illuminates the complex interplay between electoral mechanics and democratic values. While it offers a novel approach to ensuring broader representation, it also prompts reflection on what constitutes a legitimate mandate in a democracy. As societies evolve and political landscapes shift, the continuous reassessment of electoral systems becomes crucial. Ultimately, the quest for a perfect electoral system may be unending, but it is a testament to the dynamic nature of democracy itself and the universal desire for governance that truly reflects the will of the people.