A prominent French presidential candidate makes sortition part of his programme

A post by Arturo Iniguez.

L’Avenir en commun (A Shared Future) is the name given to the programme of La France insoumise (France Uprising) and its candidate for the May 2017 French presidential election, Jean-Luc Melenchon. The programme is arranged into 7 parts. The first one, under the tag-line L’urgence démocratique (The democratic urgency), is called La 6eme République, in reference to a new Constitution that would replace the current one, the Fifth, instigated by Charles de Gaulle in 1958. If elected president, Melenchon has promised to convene a constitutional convention and prematurely end his five-year mandate as soon as the new constitution is adopted. Thus, the very first measure in the programme is Réunir une Assemblée constituante (Summon a Constituent Assembly).

Each individual measure is developed in a separate booklet, forming a whole collection. Number 28 of the series, under the title Changer de République pour faire place au peuple (Reform the Republic to create a place for the people), explains how the members of the constitutional convention would be designated. The proposal is to combine election and sortition. In which proportion? That is left to the people themselves. At the poll, each citizen can either vote for a candidate or express his or her personal preference for sortition. The percentage of options for sortition will determine the share of seats to be sorted.

This is a clever way to avoid one of the main sources of resistance to any future attempts to introduce sortition: the opposition of those who are not interested in being sorted, will immediately resign in the event of being chosen by the lot, and are generally happy with the aristocratic setting of voting for professional politicians. These people will see any amount of power given to a purely sorted body as power directly detracted from them. Such a change will be unfair to them (the status quo is of course unfair to all those who do not vote).

Melenchon’s elegant solution is to let each citizen choose his or her preferred path to political participation. You can vote if you want, but you cannot impose voting on those of your fellow citizens who don’t trust professional politicians and would rather be sorted. They have the same right to political participation as you have.

This shifts the focus of the discussion. It is no longer a collective decision on how we agree to be governed, but something much more basic. It is a matter of individual rights; to be precise, of the right on which the whole edifice of the social contract is predicated: the right to have a say.

Opening only one path for political participation automatically means leaving some people without any say; both options have to be left open so that everyone can choose whether he or she wants to follow the aristocratic or the democratic path to representation.

In practice, this means that I no longer have to convince you that sortition is good for you before you agree to relinquish power to a purely sorted body. You only have to acknowledge that sortition may be good for me and that you have no right to deprive me of it.

We live under an oppressive regime that denies a good share of the population their desired way to exercise their right to political participation. A purely democratic regime would be similarly oppressive. A truly inclusive regime is the one that gives freedom of choice to all citizens as to how each prefers to be represented.

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42 Responses

  1. Interesting analysis Yoram – intriguing to see how this one will play out.

    Some of my French friends are very excited about Mélenchon. I have no vote in any case in this election and I try not to invest too much emotional capital into processes that depend on pieces of paper being put into boxes.

    I am watching this one closer than I was now.

    This is a wider-perspective piece (https://www.commonspace.scot/articles/10711/ben-wray-m-lenchons-french-left-populism-could-be-surprise-story-2017) on Mélenchon, which gives useful background to your analysis. Interesting that it comes from Scotland – a country whose citizens are generally in a more engaged state of political awareness than others in the UK.

    Make of it what you will.

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  2. Hi Patrick – thanks for the link. (BTW, I want to point out that this post is by Arturo Iniguez.)

    Like

  3. > At the poll, each citizen can either vote for a candidate or express his or her personal preference for sortition. The percentage of options for sortition will determine the share of seats to be sorted.

    I see four serious problems with choosing a constitutional convention in this way, if I correctly understand the proposal.

    Problem 1. It discriminates against those who vote for sortition and treats them as second class citizens. The only representation such voters get is the randomly sampled minipublic that comprises a portion of the constitutional convention. Those who vote for a candidate are represented by their vote for that candidate, and also have the same equal chance of being chosen for the minipublic portion of the convention as those who voted for sortition. They get represented twice, whereas those who vote for sortition only get represented once.

    Those who vote for sortition in effect disenfranchise themselves because they exclude themselves from electing a candidate, while still having only the same equal chance as anyone else to be randomly selected for the minipublic portion of the convention.

    It is analogous to an election in which some voters get to vote twice and others only once. That is, it is discriminatory, unfair and undemocratic.

    Problem 2. A mixed sortition and elected convention will not be the microcosm of the public that a sortition convention would be, and would therefore be at odds with the basic democratic ideas of informed rule by the people and the equality of citizens.

    Problem 3. A mixed sortition and elected convention would combine a random sample of ordinary citizens with people of a very different sort, namely, I presume, career politicians organized into political parties, many of who attended elite schools, sometimes the same elite schools, and who are for the most in the top few percent economically, and who are generally politically experienced and savvy, and perhaps skilled and experienced at manipulation and persuasion. For obvious reasons such elected candidates are likely to have a disproportionate influence on decisions compared to those chosen by sortition.

    Problem 4. Choosing candidates by popular election is an undemocratic and deeply flawed way to choose candidates for a convention.

    Popular election is highly unsuitable for selecting candidates on the informed basis that is called for. The basic problem is that voters only learn about candidates voluntarily in their spare time, and often do not pay a lot of attention, not even in France. If there are a great many candidates for each seat the prospects of an informed decision are even less.

    Political parties will/may dominate such elections because they have the organization, name recognition, and money needed for effective election campaigns. This discriminates against political independents who may in many cases be the best candidates. Just the fact that someone is not a partisan of a party may be a contributing factor to being a better candidate for a constitutional convention, because party candidates may be motivated by partisan political advantage rather than only by the merit of proposals and the public good.

    The media and people’s media choices can also be a problem in popular elections. Candidates may lose not on the basis of merit but because they tend to be ignored or disparaged by the media, or because they cannot reach certain portions of the public who typically only attend to parts of the media in which the candidate is generally ignored or disparaged, or even misrepresented or smeared.

    Popular election favours the best funded candidates and parties. However, it might well be that the best candidate, or the candidate most citizens would prefer were they well-informed about her or him, is not well funded, or belongs to a relatively impecunious political party.

    Solutions:

    Problem 1 can be solved by giving voters two votes on the same ballot.

    Vote 1 is a choice between being represented by sortition or by popular election. The proportion of voters who vote for sortition determines the proportion of the convention that is chosen by sortition. The proportion who vote for popular election determines the proportion chosen by popular election.

    Vote 2 is the popular election vote. Everyone can vote for whatever candidate they like, including those who vote for sortition in Vote 1.

    Unlike the proposal as now put forward, this treats all voters as equals, does not discriminate against those who wish to vote for sortition, and is more respectful of citizens and their right to vote. Those who prefer sortition can vote for sortition without disenfranchising themselves from the candidate election.

    Problem 3 can be solved, or largely solved, if the members chosen by sortition sit as their own caucus, and make decisions as their own caucus. As a minipublic such a caucus would be representative of the informed views of the people. Special rules and procedures for such a separate caucus could enhance this representative character by providing for decision-making procedures that are appropriate and best for minipublic decision-making in the context of the minipublic caucus of the convention.

    As minipublics are quite different creatures from a body chosen by popular election, quite different rules and procedures are likely to be best and most appropriate for them.

    I have proposed and continue to propose that minipublic procedures be decided by minipublics with the advice of an advisory body directed by one or more directors or commissioners chosen by a minipublic.

    For separation of powers reasons, the procedures for the minipublic caucus of the convention should be decided by one or more other minipublics, not by the minipublic caucus of the convention.

    Problem 2 does not admit of a solution, unless the elected candidates play only an advisory role with all final decisions being made by the minipublic caucus.

    A weaker version of giving the minipublic caucus the final say would be to give the minipublic caucus a veto on all proposals for constitutional reform. In this way no proposals could pass without the informed consent of the governed (as provided by the minipublic caucus).

    Such a weaker version is problematic however, as it means that elected candidates could also block – as part of a majority vote of the convention, assuming decisions are by majority vote – the informed judgement of the people as expressed by the minipublic caucus.

    There is only one authority fit to decide whether a minipublic has the final say or not, and that authority is the people.

    In addition to Vote 1 and Vote 2 mentioned above, the popular vote ballot can also include a Vote 3. Vote 3 will be on whether or not the citizens chosen by sortition will have the final say on constitutional proposals.

    Given that only informed views are a good basis for a decision, and that therefore rule by the people needs to be exercised in an informed way, it should really only be a minipublic that decides whether minipublics have the final say or not. If a minipublic does make that decision it should, for separation of powers reasons, be a different minipublic than the minipublic within the constitutional convention.

    However, we are of course in early days of what is hopefully the beginning a strong revival and renewal of the minipublic tradition in democracy, so the said approach of Vote 3 in a popular vote for the constitutional assembly is more likely to be accepted than the decision being made on the basis of informed rule by the people through a minipublic. (It may also be more in accord with how the French Constitution can be legally changed, a topic I am not informed on.)

    Problem 4 can be solved by having the candidates for the convention elected by minipublics rather than by popular election. This would be a far more democratic, informed and fair way to choose the candidates.

    See my articles at simonthrelkeld.com on choosing public decision-makers by minipublic rather than popular election. See for example my August 12, 2016, August 9, 2016 and Spring 1997 articles on this topic.

    Liked by 3 people

  4. This proposal for choosing a constitutional convention can also be applied to choosing a legislature, as I imagine people on this forum are very well aware.

    I see the same four problems for such a method of choosing a legislature as I outline above regarding the proposed constitutional convention.

    I also see the same solutions to those four problems, with some modifications.

    However, I don’t think those solutions are sufficient to get where we need to be with regard to a democratic legislature and democratic lawmaking.

    One of the things that I think is needed in democratic lawmaking is separation of powers, and also reasonably short terms of service for jurors rather than the four or five year terms politicians often serve.

    For my proposal on democratic lawmaking see my articles at simonthrelkeld.com, such as those published April 18, 2016, December 16, 1998, and Summer 1998.

    Liked by 1 person

  5. Simon,
    Your analysis of the flaws is correct.

    Liked by 1 person

  6. Simon,

    I have been following Dissident Voice for years and I remember reading with great interest your articles from last summer.

    Let me tell you first of all that you have misunderstood Melenchon’s proposal. It surprises me that Terry did not point it to you – he had perfectly understood my previous exposé of a similar scheme (https://equalitybylot.wordpress.com/2015/01/28/sortition-foundation-a-new-campaign-for-government-by-sortition/#comment-15414). As he so aptly said, “only those who voted to be selected by lot would be in the lottery, since those who chose to vote for a specific candidate wouldn’t be allowed two bites at the apple”.

    I know this harms the representative-descriptive value of the sample. I know it and I don’t care. Representative description is a desirable feature of sortition, like cognitive diversity, but it is not the source of its legitimacy, which is the lottery principle, with an equal opportunity for every citizen.

    Enough said about this. Now, if I may borrow your words to turn the tables, wouldn’t the imposition of sortition discriminate against those who don’t want to serve as allotted parlamentarians? Wouldn’t it treat them as second-class citizens? They are sold a ticket in a lottery whose prize they won’t accept if they win. That ticket, to them, is worth nothing. What they want is to have the right to elect a professional politician to represent their ideas every four or five years and be let alone the rest of the time. I can respect that.

    With regard to the risks in a mixed assembly of ordinary citizens and professional politicians, I’m not as scared as many people here seem to be. The strengh of psycopaths (in current medical terms, callous-unemotional individuals, or CU) is that most of the time we are not paying enough attention to their tricks because we are busy living our lives – rational ignorance. An allotted parlamentarian would have only one job: to pay attention to every trick tried by the CUs.

    I completely agree with your suggestion of a separate caucus (or, as we call it, political group) for alloted parlamentians. Additional measures would be required to ensure that the secretariat assisting this citizens’ group does not influence its decisions. For instance, career officials will be emphatically given the title of ‘servants’ to mark their subordinate role.

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  7. Thanks for pointing out the mis-attribution Yoram – my apologies to Arturo Iniguez.

    Thank you, Arturo, for the interesting article.

    Simon’s points about media are of course interesting too. They highlight a perennial issue for anyone trying to improve the quality of our political dialogues, not to mention change our political structures for the better.

    My half-tuned attention to the French election picked up this Guardian piece (https://www.theguardian.com/world/2017/apr/12/french-presidential-election-surge-far-left-candidate-melenchon) yesterday.

    The piece’s references to Monsieur Sortition were none-too flattering.

    He, and his actions, were described variously as:
    – far-left
    – an acid-tongued political showman with a radical tax-and-spend platform
    – the wildcard leftwing veteran
    – Helped by his caustic rhetoric.

    Pitching “far-right” against “far-right” in the way this article does is also highly disingenuous. It is so much obsolete shorthand that obscures more than it informs, obstructing understanding.

    The “far-right” Marine Le Pen has made inflammatory remarks attempting to downplay the French state’s treatment of Jews during World War II, a sensitive subject that has no place on a political campaign trail.

    Mélenchon, despite speaking in strong terms about taxing richer citizens, has done nothing in Le Pen’s league when it comes to stoking hatred for electoral gain.

    All that within the legitimate wider question of “populism” – a notion sortition fan David Van Reybrouck tackles skillfully in this January 2017 interview (https://www.youtube.com/watch?v=k5hdt1xTc_Y)

    So, the lurking challenge for we kleroterians, how to move from the technical and genteel realm of Equality by Lot to the wild world outside?

    Liked by 2 people

  8. Indeed, how to move from the technical and genteel realm of Equality by Lot to the wild world outside?

    I say that any proposal presented here should be judged first and foremost for its chances of being accepted today by the general population.

    And I say that it is much harder to convince others to accept a designation by lottery they didn’t ask for (because they actually prefer to have their interests defended by a professional politician) than to convince them that I have a right to prefer the lottery to the vote for my representation.

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  9. Arturo,

    >Representative description is a desirable feature of sortition, like cognitive diversity, but it is not the source of its legitimacy, which is the lottery principle, with an equal opportunity for every citizen.

    That is only true in the formal sense of the word legitimacy, as it is clearly true that everyone has the same miniscule chance of being selected. Why should the vast majority of citizens disenfranchised by the lottery principle view that as legitimate? What’s in it for them? From the perspective of democratic legitimacy the issue is — given that the size of large states rules out direct democracy or rotation (where everyone can rule and be ruled in turn) — whether sortition offers a reliable form of political representation and whether decisions taken by a randomly-selected jury will be (at minimum) no worse than decisions taken by an elected assembly. So descriptive representation and the wisdom of crowds are at the core of the democratic legitimacy of sortition, formal equality and the “lottery principle” only being of interest to philosophers. As the sortition panels at this week’s Political Studies Association conference made clear, this group (the “blind breakers”) only offer very modest proposals for citizen oversight of electoral institutions and would have no truck with Melenchon’s proposal.

    >the technical and genteel realm of Equality by Lot

    If only that were true!

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  10. Keith,

    Regarding your frequent observation that a modern sortition democracy would lack the Athenian legitimacy “given that the size of large states rules out direct democracy or rotation (where everyone can rule and be ruled in turn)…
    This is only a problem if legislating by sortition is modeled on the all-purpose, long-duration legislatures (and city councils) that are standard in the modern electoral system. With more appropriate design, with separate short duration juries for each bill at national state and local level, every citizen could have a reasonably high likelihood of taking a turn at law making during their lifetime. A key change is that there would no longer be a set of “rulers” as such, because this role would be so widely and democratically distributed.

    Liked by 2 people

  11. > If only that were true!

    We can but try Keith.

    Liked by 1 person

  12. Terry,

    My argument was against Arturo’s claim that sortition was legitimated by the lottery principle (the blind break), which is only concerned with impartiality (equal chance) rather than the probability of being selected. From the egalitarian perspective it makes no difference whether you have a one in two or one in ten million chance of being selected, as the impartiality of the lottery principle still applies. That’s why blind breakers couldn’t care less about descriptive representation or the wisdom of crowds.

    I doubt whether citizens will be satisfied with a very small share in widely-distributed lawmaking in a multicultural society where there is little agreement on the common good. At least under the current arrangements a plurality of voters can be satisfied (absent hanging chads and constitutional anomalies) that the decision makers who best approximate their vision of the common good have triumphed, whereas the minority can hope that at some time in the future the vision of the opposing candidates has triumphed. If you were allotted to the village car park committee would you feel that your share of power was equal to someone on the national budgetary committee? The vision that you are advocating — mass participatory democracy — was very fashionable in the 1960s but, as Carole Pateman told me recently, has very little in common with the current focus on deliberative democracy; meanwhile Benjamin Barber has moved on from strong participatory democracy to strong mayors.

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  13. Patrick,

    >We can but try Keith.

    You might suggest that to the convenor next time you have one of your dialogues!

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  14. Arturo,

    > only those who voted to be selected by lot would be in the lottery

    That makes sense but it isn’t clear from from the text whether that is Melenchon’s proposal. Also – and quite significantly – what about those who do not show up for voting? Shouldn’t they be counted as opting for sortition?

    > I say that any proposal presented here should be judged first and foremost for its chances of being accepted today by the general population.

    That seems like a very unreasonable criterion. Unless the proposal promotes democracy, what use is having support for it? It is very likely, for example, that the proposal that would be most easily accepted by the general population would involve no sortition at all, simply because this mechanism is unfamiliar to most people.

    > And I say that it is much harder to convince others to accept a designation by lottery they didn’t ask for (because they actually prefer to have their interests defended by a professional politician) than to convince them that I have a right to prefer the lottery to the vote for my representation.

    Those who want to be represented by a professional politician can follow the advice of a professional politician in their work if and when they are allotted into the legislature.

    Liked by 1 person

  15. Keith

    Speaking just for myself, my sense is that we are all responsible for the quality of our listening and our speaking/writing.

    I try to teach my politics students that technique for their interventions in class as preparation for any political dialogue they might have in the future, while also trying to learn the skill myself.

    It’s obviously most difficult to manage with those whom we think hold different views to ours.

    It can never be more than a work in progress.

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  16. Patrick,

    >we are all responsible for the quality of our listening and our speaking/writing.

    I agree.

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  17. Patrick,

    > It’s obviously most difficult to manage with those whom we think hold different views to ours.

    Honest disagreements are not nearly as bad as the appearance of lack of good faith. Depending on the intellectual rigor of the interlocutor, an honest disagreement could be an opportunity to learn. An exchange in which one side is dishonest, manipulative or offensive, on the other hand, leaves very little room for constructive engagement.

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  18. Chouard’s hasty rejection stems from the fact that sortition is justified in the proposal by increasing diversity within the constitutional convention and not, as he would had it, by protecting against the conflict of interest (“ce n’est pas aux hommes au pouvoir d’écrire les règles du pouvoir”, sa marotte).

    I’ve proposed an alternative draft for that paragraph, with little success so far (http://chouard.org/blog/2017/03/17/tres-interessant-rencontre-la-france-insoumise-les-citoyens-constituants/#comment-17308).

    Liked by 1 person

  19. Arturo,

    Thank you for the clarification, which is an improvement on the proposal as stated in Melanchon’s platform.

    1. Which is best, having one bite of the apple or two?

    What is wrong with giving everyone two bites of the apple, or the freedom to take two bites from the apple if they wish?

    Some who vote for sortition will also want to vote for a candidate if candidates are being elected. Not being allowed to vote for a candidate if they vote for sortition narrows their right to vote and disenfranchises them from voting for a candidate. (They would arguably not be second-class citizens in the proposal as you have clarified it, as those voting for candidates would also be disenfranchised, specifically disenfranchised from being in the lottery. However, as voting for a candidate and being in the lottery are quite different things and thus hard to place a comparative value on, it is perhaps unclear whether or not either the election voters or the sortition voters are getting the short end of the stick.)

    I see no harm in letting people both vote for sortition, and also vote for a candidate, if that is what they wish to do. (If they only wish to vote for sortition they will not be forced to also vote for a candidate. They will be just as free not to vote for a candidate as if they did not bother to go to the polls.)

    Maybe someone who wants as high a portion of the convention as possible to be chosen by sortition will also strongly want to vote for a particular candidate that they very much like (or slate of candidates if that is what is being proposed). Why not let them do both (vote for sortition and vote for a candidate)?

    Those who want to vote against sortition might well prefer to also have the same equal chance as anyone else to be chosen by sortition, and perhaps all the more so if members of the constituent assembly are decently paid. I see no harm in them being allowed to do both if they wish. Why should voting for a candidate disenfranchise someone from being in the lottery?

    Why be stingy with our apples, or in this case, why should Melanchon be stingy with the apples he is willing to provide?

    Why divide people into lottery participants and election participants? Why not allow people to be both if they wish? Is this not more respectful of their freedom and their right to vote?

    >if I may borrow your words to turn the tables, wouldn’t the imposition of sortition discriminate against those who don’t want to serve as allotted parlamentarians? Wouldn’t it treat them as second-class citizens? They are sold a ticket in a lottery whose prize they won’t accept if they win. That ticket, to them, is worth nothing. What they want is to have the right to elect a professional politician to represent their ideas every four or five years and be let alone the rest of the time. I can respect that.

    If those chosen by lottery are free to decline to serve, those so chosen can simply say “no thanks” and leave it to others. No imposition on them. Also, if someone votes for popular election, they of course have not increased the number of people who are chosen by sortition.

    If people voluntarily choose not to exercise a right, that does not mean they are being discriminated against or treated as second class citizens. It is only when you are denied a right that you are so treated.

    If a black person chooses to sit at the back of a bus voluntarily because that is where they prefer to sit, they are not being discriminated against. It is only if they are denied the same equal right as anyone else to sit in the front of the bus that there is discrimination.

    If service is mandatory, then yes it would be an imposition for those who prefer not to serve. If the likelihood of being chosen by lottery is small, and the pay decent, it might be that very few would find the prospect of such an imposition much of a concern.

    I did not find anything in Melanchon’s proposal re whether service for those chosen by lot would be voluntary or mandatory.

    Melanchon’s proposal as stated does not, as of course you know, say only those who vote for sortition will be in the lottery.

    I think it highly desirable for the minipublic to be a representative microcosm of the people of France (as you have probably gathered). If service is voluntary, then I don’t see any disadvantage to everyone being in the lottery, never mind a disadvantage so great that it would outweigh the advantage I see in having a representative minipublic chosen by an open lottery of all.

    >Representative description is a desirable feature of sortition.

    So then, at least if other things are equal, we agree that it is preferable to have a minipublic that is a representative microcosm. Given there is no actual disadvantage to a two bites of the apple approach compared to a one bite approach, the desirability of having a representative microcosm is one more thing tipping the scales in favour of two bites of the apple.

    An open lottery for all is of course more inclusive than a lottery that is only for those who went to the polls and voted for sortition. Such inclusivity is a good thing. Given that there is no disadvantage to a two bites of the apple approach, being inclusive of not only those who prefer popular election, but also of those who did not go to the polls, is another weight tipping the scales in favour of two bites of the apple. Why disenfranchise people from the lottery just because they did not go the polls to vote, and when there is no advantage to be gained by using the disenfranchising one bite of the apple approach?

    Many people like to have their cake and eat it too. Why not use a two bites of the apple approach that lets them? Many people are fence sitters reluctant to jump one way or the other, why not use a two bites of the apple approach and let then sit on the fence as they prefer, or be on both sides of the fence as they prefer? Where is your kindness and generosity for the have their cake and eat it too portion of humanity who want to both vote for a candidate and be in the lottery ;o)?

    2. Secret ballot:

    Secret ballot is of course standard in popular elections and referenda.

    How will secret ballot be maintained if only those who vote for sortition are in the lottery?

    Will they all have to write down their names and contact information on a confidential ballot in a polling booth in order to be in the lottery? Will there be security measures in place to prevent people from writing down someone else’s name to entertain themselves or to make sure they don’t get chosen, with the person they name possibly being chosen by lottery?

    Will there be two different kinds of ballots, one to vote for sortition and enter the sortition lottery, and the other to vote for a candidate? If so, will that not be inconsistent with secret ballot?

    If only those who voted for sortition are in the lottery, then anyone who serves on the minipublic part of the constituent assembly will no longer have a secret ballot, as how they voted would have become obvious.

    Two bites from the apple is consistent with secret ballot, one bite seems not to be, or at least not for those who “win” the lottery.

    3. Separate caucus

    > I completely agree with your suggestion of a separate caucus (or, as we call it, political group) for alloted parlamentians. Additional measures would be required to ensure that the secretariat assisting this citizens’ group does not influence its decisions. For instance, career officials will be emphatically given the title of ‘servants’ to mark their subordinate role.

    We are on the same page on this.

    I do, by the way, find the proposal for having a sortition representation option on a popular election ballot to be brilliant. Are you the first to propose it so far as you know?

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  20. To me a fundamental problem with this proposal (which is also present in Chouard’s proposals) is that it relies on a one-time high-stakes decision point. Any such situation is inherently dangerous because it introduces strong rigidity to the political system – a rigidity that can be exploited by powerful interests in various ways.

    Liberal ideology that sees government as a potential enemy to be constrained is given to such

    Having the public of today irrevocably bound by decisions made earlier (whether democratically or not) is non-democratic. Democratic constitutions should be written and re-written on an ongoing basis and should be seen as being up for re-evaluation and reform at any point in time.

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  21. Simon,

    My previous proposals have remained entirely unnoticed, so I would name Melenchon as the first to publicly present an inclusive system that gives the choice to the individual citizen. Mixed assemblies have been proposed by others but with an arbitrary, externally determined percentage of seats for elected and allotted representatives. Also, you could consider that political parties bringing to the ballot a list of allotted candidates (or candidates with a compromise to renounce in favour of those winning a lottery to be held immediately after election day) are in a way intuitively implementing a similar idea avant la lettre.

    1. Two bites at the apple?

    > As voting for a candidate and being in the lottery are quite different things and thus hard to place a comparative value on, it is perhaps unclear whether or not either the election voters or the sortition voters are getting the short end of the stick.
    The mathematical expectation E[X] for your vote to be decisive is the same as the one for you to be chosen by lot. We discussed this matter at Chouard’s blog (http://chouard.org/blog/2017/03/17/tres-interessant-rencontre-la-france-insoumise-les-citoyens-constituants/#comment-17184). Just let me know if you want me to summarise Neo-Sieyes’s example in English.

    > What is wrong with giving everyone the freedom to take two bites from the apple if they wish? Why be stingy with our apples?
    Why? Because there is a defined, limited number of apples (or, as Rousseau would have called them, proportional parts of the popular sovereignty). If you tell everyone to take an election-flavoured bite and a sortition-flavoured bite, there will be many who will only take one of the two since they don’t like the taste of the other. They will be therefore taking a smaller overall portion, and being effectively treated as second-class citizens. You could only escape this conundrum if you gave them two votes or two chances at the lottery, and I am sure you don’t want to go down that road.

    Despite being a sortition advocate myself, I am most concerned with avoiding any feeling of disenfranchisement among people who stick to election and reject sortition. It is also true that we could follow Yoram’s advice and tell them, if and when forcibly allotted, to relax and passively follow the script given to them by the leaders of the political party of their predilection, but I fail to see what’s in it for them in lending themselves to such a charade. I guess their most rational behaviour will be to oppose the whole reform, sortition and all, and keep things as they currently stand. More generally, I don’t think this is the kind of attitude that will wins us friends. I mean, you can possibly use that strategy to convince farmers into collectivisation if you are Trotsky’s army in 1922, but the state of our forces right now is more like Mao’s army in 1934.

    2. Secret ballot?
    The reason why the ballot is secret is to prevent the selling of votes. Again, we just discussed this in Chouard’s blog (http://chouard.org/blog/2017/03/17/tres-interessant-rencontre-la-france-insoumise-les-citoyens-constituants/#comment-17224, and, again, just let me know if you want me to summarise the main elements here).
    There’s no need that one’s option for sortition remains secret. It’s not like I am revealing my political leanings or anything, other than the fact that I don’t trust professional politicians. I don’t think anyone needs or wants to hide that nowadays.
    On the contrary, the process has to be as open and transparent as possible. At the poll, instead of putting a ballot in the box, you ask that your name be signalled in the electors’ list as having opted for sortition. Then, those lists are consolidated, made public and used for the lottery.

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  22. Yoram,
    How do you go around the fact that a reform introducing sortition has to be adopted through a vote by the majority of parliament (or the people in referendum)?
    That’s why I insist that a “sortition for all” proposal involves higher stakes than a “sortition for those who want it” one and is therefore much harder to get through.

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  23. >My previous proposals have remained entirely unnoticed, so I would name Melenchon as the first to publicly present an inclusive system that gives the choice to the individual citizen.

    I seem to remember a Greek academic publishing a similar proposal a few years ago, can’t remember his name. It was a journal article that he was intending making into a book project.

    Liked by 1 person

  24. Thank you, Keith; I had forgot that. Let’s give Filimon Peonidis the credit he deserves.

    https://equalitybylot.wordpress.com/2015/01/28/sortition-foundation-a-new-campaign-for-government-by-sortition/#comment-15400

    He proposed the ‘weak’ version in which you don’t have to renounce your right to vote in order to be included in the lottery (there is simply a pool of volunteers). The problem with this is that the nice balance we had achieved with our apples gets all messed up. Those who are not interested in volunteering will see their wheight in decision-making comparatively reduced and have all incentives to oppose the reform.

    Liked by 1 person

  25. Arturo,
    While I admit a certain fascination with the opt-in path to sortition by letting only those voters who want it be “represented” by allotted members, I don’t think it is necessarily the best, and certainly not the only way forward. You wrote
    >”That’s why I insist that a “sortition for all” proposal involves higher stakes than a “sortition for those who want it” one and is therefore much harder to get through.”
    But what about sortition for all for a single carve out issue area… such as healthcare, or energy? if one policy area that politicians aren’t fond of being responsible for any way (often they are lose-lose propositions where they fear they will be unpopular no matter which decision they make) is willingly removed from the elected legislators and given to a mini-public, this might be a better way forward. The first couple of policy areas might be carved out with hardly any complaint… and if the products of the mini-publics meet with popular approval, this could be a basis for a public demand for moving more and more of public policy over to sortition bodies.

    Liked by 1 person

  26. Good idea Terry, in the UK a good candidate would be the legalisation of assisted dying for the terminally ill.

    Liked by 1 person

  27. Arturo,

    > How do you go around the fact that a reform introducing sortition has to be adopted through a vote by the majority of parliament (or the people in referendum)?

    As I wrote before, any meaningful democratic reform is bound to be hard to push through because it is bound to be strongly resisted by established powers who are, by definition, going to be losing some of their power through the reform.

    The road to meaningful reform is through mass mobilization. The idea that elections are anti-democratic and sortition is the democratic mechanism must gain a strong foothold in the public’s mind before meaningful democratization can occur. Thus the question is not which reform can be more easily passed, but how to get people to a point where they embrace sortition and reject elections.

    The best idea that I have heard on how to do that is promoting an allotted supervisory anti-corruption body in charge of setting anti-corruption regulations which apply to all elected positions and of enforcing those regulations.

    This idea should be an easy sell to the public, I believe, and should be hard for elected officials to resist.

    Having this body prove its effectiveness and win popularity by fighting the corruption of electoral bodies would be a great stepping stone toward setting up other allotted bodies with broader powers and eventually setting up an allotted parliament.

    Liked by 1 person

  28. Arturo,

    >The mathematical expectation E[X] for your vote to be decisive is the same as the one for you to be chosen by lot.

    Yes I understand that (assuming you are referring to what I think you are, which I think must be the case). But that “mathematical equality” of course does not change the fact that these two “methods of rule by the people” (voting for a candidate versus being in the lottery) are quite different. (I use quotes because I don’t think popular election is really a method of rule by the people at all, or at least only to a quite limited extent.)

    >If you tell everyone to take an election-flavoured bite and a sortition-flavoured bite, there will be many who will only take one of the two since they don’t like the taste of the other. They will be therefore taking a smaller overall portion, and being effectively treated as second-class citizens.

    They will not be discriminated against and disenfranchised if the two bites of the apple approach is taken. It is only the one bite of the apple Melenchon approach that disenfranchises people (disenfranchises those who vote for sortition from voting for a candidate, and disenfranchises those who vote for a candidate from being in the lottery).

    Martin Luther King did not complain of discrimination against those who voluntarily chose not to vote. He complained of discrimination against those who were prevented from voting, had obstacles put in their way that made it harder for them to vote, and were in gerrymandered districts designed to reduce the effect of their vote.

    Voluntarily declining to vote for a candidate or voluntarily declining to accept service after being chosen by lottery does not constitute being disenfranchised or discriminated against, and does constitute being treated as a second-class citizen.

    In California voters can both vote on popular initiatives and for candidates, or they can decline to do either. Some may only wish to vote for candidates and ignore the popular initiatives, others to vote on initiatives and ignore the candidate elections, and others to vote in neither. No one claims that any of these three categories of people are disenfranchised, nor that they are discriminated against, nor that they are being treated as second-class citizens, because they all have the right to vote in both the initiatives and the popular elections regardless of whether they choose to exercise that right.

    If someone were to say to Californians that people should only be allowed to vote either on initiatives or for candidates, but not to do both, Californians would regard that as an undemocratic idea and contrary to people’s rights. If they were told that allowing people to vote in both treats people as second-class citizens they would find that a rather bizarre claim. Instead, they might very reasonably say that such a proposal would reduce everyone to a kind of second-class citizen.

    If minipublics are being chosen those not in the lottery are being disenfranchised with regard to the lottery. With regard to the lottery they are second-class citizens. If candidates are being elected those not allowed to vote for a candidate are being disenfranchised from being able to vote for a candidate, and with regard to voting for a candidate are second-class citizens.

    Arguably as these two rights are arguably equal, and as citizens can choose which right they want to exercise, we can say there really is no disenfranchisement and that no one is really being treated as a second-class citizen. We could also make much the same argument to Californians about them having to choose between either voting in the initiatives or in the candidate elections. But why should people have their democratic rights restricted, instead of having the right to participate in both the candidate election and the lottery, and in both the candidate elections and in the initiatives?

    In any case, it is not accurate to say that in a two bites of the apple approach those who choose not to vote for a candidate, or those who choose not to accept service if chosen in the lottery, are being discriminated against or treated as second-class citizens, because they have the same equal right as everyone else to vote for a candidate and to be chosen by lottery, even if they choose not to exercise it.

    *That all said, I am now sharing your discomfort with the two bites of the apple approach I suggested, (though it appears not for the same reasons).

    The Melenchon one bite of the apple proposal (given that he means what you say he means) appears to be within the logic of popular election. If voters want to vote for themselves (in the sense of those so voting all being in the lottery) why should they not be able to do so, why should their only option be to delegate to an elected candidate? Seems clear and reasonable without stepping outside of an electoral democracy paradigm, a paradigm that includes the right of citizens to vote for who they wish (which surely should include for themselves).

    In the Melenchon proposal we of course don’t have a minipublic at all, but rather a lottery of a self-selected group which is something quite different (and in my view far less helpful as a decision-making body).

    In a two bites of the apple approach we have two different methods of rule by the people. A lottery-for-all is not a subcategory of popular election like a lottery of those who voted/self-selected to be in the lottery would be, but rather is a method of rule by the people that is different from popular election.

    Hmm. Maybe the following is the best solution to these conundrums:

    Have a minipublic, a real one with every every citizen of France in the lottery, and also have an elected body separate from that, preferably elected by minipublics rather than by the very flawed method of popular election.

    That is, instead of trying to square the circle as I was doing with the two bites of the apple suggestion, acknowledge that squares and circles are different things and have one of each.

    Let both bodies decide whether any constitutional amendments are needed or not, each body within the context of procedures appropriate for that body. Let each constitutional amendment that one of these two bodies approves go to the other body for consideration and possible joint approval.

    Given that a referendum is the only way that the constitution can be amended that the public will accept at this point in history (and that part of Melenchon’s proposal is that the amended constitution be put to a referendum vote), the proposed amendments could then go the people for decision by popular vote.

    The minipublic’s proposed amendments would be on the ballot as proposals of the minipublic, those of the elected body as proposals of the elected body, and those jointly approved as joint proposals. The public could vote on each proposed amendment, with the proposals getting a majority vote going into effect. If two conflicting proposals (perhaps one from the minipublic and one from the elected body) both get a majority vote, then to the extent there is a conflict, the proposal that gets the larger majority vote overrides the other.

    I think that is much better than either one bite of the apple or two, (though as indicated, I think one bite of the apple is a reasonable reform for popular election including for the elected body part of the constituent assembly).

    I don’t think that anyone will have “any feeling of disenfranchisement” with this approach. Quite the opposite I think. It has both a body of “ordinary citizens like ourselves” and a body of elected candidates. The public can then decide in a referendum which of the proposals of these two bodies to accept, if any. Those who don’t trust politicians have a minipublic to rely on. Those who like elected bodies have an elected body to satisfy them. The ultimate decision is by referendum which is what the public think is the legitimate way to decide on proposed amendments to the constitution.

    Re secret ballot, yes I know secret ballot was introduced to prevent vote buying, however it is more generally about preventing voters from being accountable for how they vote. If the sortition voter list is public, there could be consequences for those who are on it. Party leader to his assistants: “How dare you voted for sortition instead of our party.” Husband to wife: “How dare you voted for sortition instead of the party I favour and that you told me you’d vote for.” Employer to employee: “So Monsieur Sortition you think you’re as good as the candidates running for election do you?”

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  29. >The road to meaningful reform is through mass mobilization. The idea that elections are anti-democratic and sortition is the democratic mechanism must gain a strong foothold in the public’s mind before meaningful democratization can occur. Thus the question is not which reform can be more easily passed, but how to get people to a point where they embrace sortition and reject elections.

    You’re going to have a very long wait Yoram, especially as you attack every incremental project that might have the benefit of demonstrating the democratic potential of sortition.

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  30. Thank you all. I’m glad that we finally exited our ivory towers and descended into the arena of how-to-make-things-happen.

    I see the logic of your proposals: lower the stakes in order to reduce the amount of initial resistence to overcome.

    Like Terry, I couldn’t tell at this point which of the different possible ways forward may be the best.

    For the record, if I had to list the relative strengths of the opt-in path, these would be:

    1. Instead of telling others what is good for them, I am only asking to be let to decide what is good for me. In this sense, my political struggle is not of the sort that tries to impose a competing model of organising society (like, say, the communist party) but of the sort that reclames an individual right (like the sufragettes).

    2. Those who have no interest in sortition (since they would immediately renounce in the event of being chosen by the lot) have in this case no amount of decision-making influence detracted from them and, as a consequence, no personal interest in opposing my personal liking of sortition.

    Yoram, I don’t know if I follow you when you say that “the question is not which reform can be more easily passed, but how to get people to a point where they embrace sortition and reject elections”. The higher the threshold, the harder to raise public conscience to that point, right?

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  31. Simon,

    Let’s look at it this way: if the only possibility I am offered to exercise my political rights is to elect professional politicians and I don’t trust them, I am actually disenfranchised. I can’t subscribe the existing social contract and I only obey the laws and pay taxes because the police have guns. Now, if you give me the opportunity of exercising half my political rights through the election and half through the lottery, that is admittedly better than nothing, but I’ll still be half disenfranchised. Full enfranchisement will require the possibility to exercise all my political rights through either method as I see fit. If you want to exercise yours half through the election and half through the lottery, I can theoretically accept that, but then I want to be fairly treated, which in this case means having double chances in the lottery (and, conversely, anyone not interested in the lottery would only be fairly treated in this setting if given two votes at the election). Since this begins to sound a bit silly, I suggest that we limit ourselves to one bite at the apple.

    With regard to making public or not the list of those who opted for sortition, I can see the tension between transparency and privacy. Workplace and bedroom coercion do regrettably happen all the time, and the only remedy that comes to my mind is to instil the democratic principle that nobody is better or worse than any other against the aristocratic principle that some among us are more worth of ruling.

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  32. Arturo,

    > The higher the threshold, the harder to raise public conscience to that point, right?

    Focusing on tactics at this point is very premature. Public consciousness is not a matter of supporting specific proposals but of supporting certain ideas. Once the ideas we are advocating acquire a hold in the public mind and a place in the political discourse, things may look very different tactically.

    Again, as a matter of short term proposals, I think pushing for an allotted anti-corruption body is the way to go.

    Liked by 1 person

  33. Yoram,
    As you say the task at hand is to spread awareness of sortition as an alternative to elections and to build public support. Many of us believe an absolutely essential tactical step is to get some (small scale or limited) successful real-world implementations up and running. Therefore a key tactical question is what implementations would advance sortition, because SOME could certainly move things backwards (cases where elites use a manipulated jury as a fig leaf for policies they secretly favor, by controlling their access to information, etc.). I agree with you that an oversight body that would enforce ethics rules for legislators might be a good option for this purpose…. but even that has the danger of backfiring and further entrenching elections (now that sortition has given us a leash to keep the elected legislators from straying from their noble charge.)

    Liked by 2 people

  34. I think we need to insist on real minipublics that are implemented in a democratic way.

    The observations we are making about starting with areas of law where politicians have blatant conflicts of interest and also areas of law where politicians may see an advantage in being “let off the hook” make sense.

    Minipublics in the context of constitutional change also make sense. But sortition of the self-selected does not produce a minipublic, and I do not think it a reasonable and acceptable substitute for real minipublics.

    Societies have to have decision-making procedures and those procedures do not require unanimous approval. They require no more than majority approval (and to be consistent with things like the universal declaration of human rights, as a tyranny does not become acceptable merely because the majority support it).

    Wherever the ballot initiative exists it has high levels of public support. But it does not have unanimous support, nor should it have to. Ditto for minipublics, they just need something like the level of support that popular initiatives and trial juries now have, or just majority support, not unanimous support.

    The idea that people decide on a individual level what decision-making method will represent them is interesting, but I think it needs to be rejected.

    If we were really to implement it we would have to give people more options than just sortition from the self-selected and popular election because there are more options and there’s just no non-arbitrary basis to limit options to two. Other options include sortition of all (not just the self-selected) as I initially assumed the proposal was, monarchy (let the queen decide), politicians chosen by minipublics (as I believe would be more fair, democratic and informed), politicians chosen on the basis of proportional representation, politicians chosen on the basis of single member district plurality vote, politicians chosen on the basis of single member district ranked ballot, politicians chosen on the basis of who does best on an exam.

    Having people make such choices on an election ballot is also flawed because of all the flaws of popular elections (poorly informed, dominated by political parties, money and media, the unrepresentativeness of those who vote). Such decisions need to be made in a way that is actually informed and democratic, and not dominated by powerful interests. Minipublics of course provide the best and most democratic way to make such decisions about how decisions will be made.

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  35. *** Mélenchon’s proposal about a hybrid constitutional convention (part election, part sortition) is not well conceived – as some other proposals of his program, which is somewhat disturbing about the way works La France insoumise.
    *** But, as he lost, it is not an immediate problem. What we must see, is the historical meaning of this proposal. Mélenchon was really a ‘prominent” candidate. With only some points more, he could have been first or second in the first step of the election, and he would probably have won against Marine Le Pen. Thus for the first time in history a potential head of a major power proposed to put the sortition way of democracy in the center of political power. Sortition is definitely out of the limbo.
    *** The sortition element in La France insoumise program was not in the center of the campaign. The Established Left, which is influential in the media, criticized strongly Mélenchon about his “unrealistic” economical program, about his stance in front of the European Union, about his “understanding of Poutine’s policy”, etc .. But not about the sortition idea. We can remember that in 2006 Royal’s modest proposal of citizen juries brought about an extraordinary negative and strident reaction in the political and media elite. Now, not only sortition is out of the limbo, it is not a demonized idea. “An idea is first ignored, then it is scandalous or ridiculous, then it is commonplace”.
    *** Second historical point. Mélenchon, coming from the far left, has clearly chosen a left-populist way (including in the symbols, capital letters wording LA FORCE DU PEUPLE, no more red flags, but French flags ad nauseam !). As far as I know, it is the first case since the surge of Western populisms that a populist leader issues a proposal including, at least partly, sovereignty through sortition. In France the sortition idea was more in the minds of politicians who were somewhat eccentric, but not out of the Establishment (Royal, Montebourg more recently).

    Liked by 1 person

  36. Andre,

    >Thus for the first time in history a potential head of a major power proposed to put the sortition way of democracy in the center of political power. Sortition is definitely out of the limbo.

    Agree. That’s why we should ignore siren calls for a popular uprising against “electoralism” in favour of genuine proposals for introducing sortition to augment existing political arrangements. All these proposals will contain flaws (which we are right to dispute) but should be welcomed as a move in the right direction.

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  37. The evolution towards a sortition-based democracy might occur through the carving off of decision areas from an elected legislature and vesting them in mini-publics. Over time, the elected chamber may never fully disappear but instead recede to the periphery, just as the elected ruling Archons of pre-democratic Athens persisted into the democratic era, but with severely restricted powers and responsibilities, or monarchy persisted into many modern electoral democracies reduced to a ceremonial role. A key for this prospect is the use of sortition in drawing constitutional conventions or review bodies. It is far less likely that elected chambers will transfer their powers and authority to mini-publics than would constitutional mini-publics themselves. There have already been positive precedents for this. When the legislature of British Columbia established the Citizens’ Assembly they set up a system that allowed its recommendations to go directly to referendum without further involvement of the elected legislators. Ireland has used sortition in drawing 66 out of the 99 members of its recent constitutional review bodies (although interposing the elected legislature between the mini-public and the opportunity for referendum). Neither of these are THE model needed, but hint of the possibility.

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  38. The trajectory sortition has taken in France (as described above by Andre), and its comparison with the trajectory taken by sortition in Australia, rebuts the idea often heard in democratic-reform circles (and on this blog) that the way toward disseminating and legitimizing the idea of sortition goes through “experiments” or low-power applications. France has seen no “experiments” with sortition and yet – due to sustained advocacy – sortition occupies a much more prominent political place there than it does in Australia, where many political allotted bodies have been convened in one way or another.

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  39. What Yoram Gat says is interesting, but maybe there is no “one way” towards sortition (democracy-through-minipublics or hybrid systems).The political and intellectual tradition of France is especially prone to “abstract” and centralized endeavors rather than pragmatic low-power experiments.

    Liked by 1 person

  40. Andre,

    > no “one way”

    Maybe. And yet, we have no example of a different way.

    Indeed, is there an example of the legitimation of any political device through “experiments”?

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  41. Terry,

    >A key for this prospect is the use of sortition in drawing constitutional conventions or review bodies.

    Then it’s vital to ensure that the selection process and procedures of such bodies are fully democratic. This was not the case in either of the cases that you cite (BC and Ireland).

    >It is far less likely that elected chambers will transfer their powers and authority to mini-publics than would constitutional mini-publics themselves.

    There is a good likelihood that elected politicians would farm out decisions on contentious issues — I imagine that’s why a leading item on the Irish citizen convention was abortion. Likely candidates in the UK include the decriminalisation of voluntary euthanasia and the recreational use of narcotics.

    Andre,

    >The political and intellectual tradition of France is especially prone to “abstract” and centralized endeavors rather than pragmatic low-power experiments.

    That’s true, but the significant factor is that sortition has been advocated by two very prominent politicians (Royal and Melenchon), who are both still wedded to “electoralism” (as, indeed, is Ranciere).

    Yoram,

    >is there an example of the legitimation of any political device through “experiments”?

    Perhaps not experiments, but certainly by example and contagion — if it works then it will be copied. However there are no historical examples of enduring political change via popular uprising (assuming that Herodotus’ analysis of the Athenian “revolution” is more likely to be correct than Ober’s).

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