Representation by sortition is defined as “democratic” while representation by election is defined as “aristocratic”. Sortition is a democratic instrument because this way people are represented by “their peers” while in an election-based system people are choosing “the best” as “leaders” (= electoral aristocracy).
To illustrate the aristocratic nature of the electoral system, we can take the example of (what may be a somewhat romanticized description of) pirate ships. A hundred years before the French Revolution, pirate ships were run on lines in which liberty, equality and fraternity were the rule. On a pirate ship, the captain was elected and could be deposed by the votes of the crew. The crew, and not the captain, decided whether to attack a particular ship, or a fleet of ships.
The ancient Greeks (circa 400 BC) used the electoral system for the designation of “the best” as military generals. The legislative institutions, however, were based on democratic instruments: representation by sortition and the people’s assembly. Using an electoral system for legislative institutions mainly finds its origins in the Roman Republic .
The ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms) only mentions the “right to free elections”. Democracy as a right is not mentioned throughout the convention. The term “democratic elections” belongs to the misleading propaganda language of politicians and mass media.
Sortition is a democratic instrument which, together with other democratic instruments and elements (freedom of speech, freedom of assembly, …), can be deployed in a democracy. However, sortition is not a silver bullet. Not every application of allotment results in a democratic decision-making system. Here are some criteria that should be kept in mind when assessing whether a sortition-based institution promotes democratic outcomes.
1) Basic Criteria
With sortition, the basic criteria, which are applicable in the referendum system remain valid:
– Setting the political agenda by the citizens / initiative
– Information and debate – transparency of public data
– Decision-making power
2) The sampling system
Sortition systems can be complex, a fact which increases the possibilities of manipulation and errors. Even in simple, transparent systems such as the mechanical lottery drum a bailiff is present. In the Netherlands (2014), there was a suspicion of manipulation in the digital lottery.
The choice of the selection system, and the details of implementation, have to be justified by their function.
– The sampling system must be simple (e.g., simple random sampling) and conducted in a professional manner.
– The sampling procedures must be public.
3) The number of citizens appointed by sortition
A further criterion is the number of citizens appointed by sortition. This number will determine the margin of error, the reliability and representativeness of the panel appointed by sortition.
It may be that we pursue no representativeness for a particular application (e.g., G1000 Belgium: maximum diversity instead of representativity) or limited representativeness (e.g., Oregon Citizen Initiative Review: geographically and demographically representative).
Of interest is also the “rotation” which is a must in a democratic system. Governing and being governed in turns is the essence of a democracy.
The number of citizens to be allotted should:
– Depend on the desired representativeness.
– Be a function of the allowed margin of error on the results.
– Be a function of the desired reliability of the results.
– Depend on whether mass participation is a goal.
A statistical calculation yields of required size as a function of the allowed margin of error and desired reliability.
– A large number of participants will be less susceptible to coercion and corruption and will also increase the likelihood that efforts to manipulation be reported more quickly.
– The panel of citizens appointed by sortition has to be “a true image of society” as a whole.
A properly implemented system with between 400 and 600 citizens is usually sufficient to ensure reliable operation. Having fewer people has to be justified in detail.
4) Period of service of the allotted citizens
A short period of service has several advantages. Longer times will therefore have to be weighed by their advantages and disadvantages. (Here: short = a day or several days, long = years.)
– A short service period increases the total number of participants over time.
– A long service period gives rise to greater opportunities for manipulation and slows down rotation.
– Longer service discriminates against participants who can not afford a long absence, or do not wish to do so.
– A long period of time may increase expertise. This may be considered both as an advantage and a disadvantage. More expertise means that the panel differs from an “image of society”.
5) Decision-making power
With panels who have only advisory jurisdiction there is on average a participation rate of 2%. This means that if you ask 100 people to participate in such a panel, only 2 people will show up. This could not possibly be representative.
It has been proven that when citizens have effective decision making-power they are more likely to take part in such initiatives.
In principle participation in a legislative panel appointed by sortition is obligatory (a civic duty). Such an obligation will of course be difficult to enforce but various measures that encourage participation may be introduced (fee, assistance, motivation, …). With voluntary participation, there is the risk of “professional participants” and paid participants (funded by civil society, businesses, interest groups, …).
This way, the “image of society”, which is the basis of the jury system, is no longer valid.
– It is of interest to increase the turnout and have it really representative in order to speak of a democratic instrument.
It would be unrealistic to expect that the strong financial and economic powers that now influence political decisions would quietly relinquish that influence when sortition is introduced into the political system. We have to anticipate that these powers will mobilize in order to maintain their power.
We can look at a system which we know and which has long demonstrated its reliability (Belgium: at least until the recent changes): the jury system in the juridical system . A jury of 12 citizens designated by sortition (from the electoral registers) makes decisions of guilt or innocence. In comparison with countries (such as the Netherlands) where the court decisions are made by professional judges only, it appears that the jury system is certainly not inferior in the quality of justice it provides. We also see that both parties (accuser and accused) can call witnesses and experts, completely independent of each other.
Juries with mixed systems composed of professionals and citizens appointed by sortition give disappointing results. This is not surprising, such a panel is not at all “an image of society”.
– Avoiding manipulation by “independent neutral staff” who assist deliberation
– Determining which experts and interested parties have to be invited
– No composite panels of professionals (i.e. politicians) and people appointed by sortition
7) Considerations regarding so-called “deliberative” panels
A system that is often used is the division of a big allotted panel, which has heard the experts and interested parties, into small groups which discuss among themselves, under the supervision of “neutral facilitators”, the matters at hand. Then the whole group decides.
Although this system facilitates deliberation, it carries major risks of manipulation, especially if it is not about non-binding “recommendations” but about decisions where large sums of money may be involved (some examples of corruption in Belgium: army shells, Agusta army helicopters, special waste containers, windmills in the North Sea, …). Thus what can and what can’t work will depend on the application.
– We note in this regard the appearance on the scene of the “participation industry” that professionally accompanies participative events. This industry involves academics as well. Overcoming the potential of professionals to manipulate the outcomes can be potentially overcome through the use of bodies such as “supervision juries” which are part of the design proposed Terrill Bouricius.
– One must also distinguish between the “satisfaction of the participants” and the “results” that depend on other parameters.
– Participants of panels appointed by sortition can, in principal, not discuss among themselves but just listen to the experts and stakeholders and vote afterwards.
8) Comparison to referendums
One can also judge proposals (with or without sortition) on the basis of the following criteria: cost, the sampling system used and type of representation, and outcome. One will soon find out that even gathering the data for making such judgments is not easy.
One of the great advantages of referendums (citizens’ initiative) is that all discussions and events take place in public and are accessible to everyone. This freedom to participate and full openness is not found, at least not to the same extent, in the sortition system.
 For what reason the French Revolution has established the jury system in criminal cases on September 3, 1791?
“Ce que caractérise Ia cour d’assises, c’est l’indépendance de cette jurisdiction. Elle offre la garantie que les jurés, en raison de Ia durée momentanée de leurs fonctions, n’abuseront pas de leur autorité.”
“What this juridical system features is offering the independence of this form of justice. A guarantee that jurors, because of the short duration of their duties, will not abuse their authority.”