VOLUNE 67, AMERICAN LAW REPORTS
(6th edition 2011, updated online through 2018)
67 A.L.R.6th 609 (Originally published in 2011)American Law Reports
The ALR databases are made current by the weekly addition of relevant new cases.
ALR6th
Jay M. Zitter, J.D.
Validity of Runoff Voting Election Methodology
Depending on state statutes and local rules and ordinances, in certain state and regional elections if no one wins an absolute majority of the votes or at least a certain plurality, there has to be a runoff election, usually between the two top vote-getters in the first round. Of course, this entails an unanticipated expense for the locality, may result in fewer voters because of “voter fatigue,” and leaves the election’s outcome in doubt until after the second round of voting. Moreover, even in areas in which a plurality of voters is all that is needed to win, this leaves a bad taste in the mouth since, depending on the number of candidates, the winner has amassed only a small fraction of the total votes.
In order to avoid the problems inherent in runoffs, and to ensure that an electee had actually gotten a majority of the votes, a number of governmental units have enacted special voting provisions, such as those providing a mechanism whereby the first voting cycle contained a method for the ranking of candidates. In this way, even if no candidate wins outright in the first round as being the first choice of a majority, the runoff is computed immediately using a comparison of secondary choices, and there is no need for a second round of actual voting. In this context, the Supreme Court of Minnesota in Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683, 67 A.L.R.6th 733 (Minn. 2009), affirmed a judgment rejecting challenges to the constitutionality of a city’s instantrunoff voting election methodology, despite allegations that the method violated rights to vote, to associate for political purposes, and to equal protection under both the United States and the Minnesota Constitutions. Other courts have reached varying conclusions as to the validity of various types of runoff voting election methodology, as the following annotation illustrates.
TABLE OF CONTENTS
Article Outline Index Table of Cases, Laws, and Rules Research References
ARTICLE OUTLINE
In the following cases the courts considered the validity of local provisions providing for instant runoff voting methodologies, in light of state and federal constitutional rights to vote, First and 14th Amendment associational rights, and the like.
In Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011), the court upheld the validity of a city voting provision calling for a restricted instantrunoff voting system (IRV), despite a challenge based on the First and 14th Amendment associational right. The provision called for a ranked choice system whereby all voters could rank candidates by order of preference. All first-choice rankings were counted first. If a candidate received a majority of votes, he or she won the election. If not, the candidate who received the fewest first-choice rankings was eliminated. The second-choice rankings of voters who supported the eliminated candidate were then redistributed and all votes were retabulated. If no candidate with majority support emerged, the process is repeated.
The provision also contained the caveat that the election’s director could limit voters to no more than three choices of the voting system, vote tabulation system, or similar related equipment that could not feasibly accommodate choices equal to the total number of candidates for each office. The parties attacking the validity of the voting system maintained that when more than four candidates ran for a particular office, the restricted IRV system precluded some groups of voters from participating to the same extent as others, premising their argument on the analogy that since it would be unconstitutional to prevent qualified voters from casting ballots in a runoff election, exhausting the ballot of a voter who would have ranked more than three candidates would also be unconstitutional. The court recognized that restrictions on voting can burden equal protection rights as well as interwoven strands of liberty protected by the First and 14th Amendments—namely, the right of individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. On the other hand, said the court, though voting is of the most fundamental significance under our constitutional structure, States retain the power to regulate their own elections. Recognizing the need of states and municipalities to assure that elections are operated equitably and efficiently, the court concluded that a flexible standard of review was appropriate when considering constitutionalchallenges to election regulations. Under this standard, when the burdens on voting imposed by the government are severe, strict scrutiny applies, and the regulation must be narrowly drawn to advance a State’s interest of compelling importance. Voting regulations are rarely subjected to strict scrutiny as regulations have been upheld as not severe where the restrictions are generally applicable, even-handed, politically neutral, and protect the reliability and integrity of the election process.
The court rejected the argument that the treatment accorded exhausted ballots as the vote tabulation proceeds under the city’s restricted IRV scheme is akin to prohibiting certain voters from voting in an election, and so imposes a severe, or at least a serious, burden on voters’ constitutional rights. In actuality, said the court, all voters participating in a restricted IRV election are afforded a single and equal opportunity to express their preferences for three candidates; voters can use all three preferences, or fewer if they choose. Noting that to determine the winner of the election based on that single set of votes cast, a restricted IRV uses an algorithm whereby the ballots, each representing three or fewer preferences, are the initial inputs and the sequence of calculations mandated by restricted IRV is used to arrive at a single output—one winning candidate, the court observed that in contrast, a two-round runoff system involves at least two rounds of voting, or inputs, explaining why it is sometimes referred to as a “double-ballot” election.
The court concluded that the contention that IRV threatened to exclude some voters from voting was incorrect as it sidestepped the basic fact that there was only one round of voting in restricted IRV. In sum, the court declared, the restricted IRV system was not analogous to limitations on voting in successive elections because in the city’s IRV system, no voter was denied an opportunity to cast a ballot at the same time and with the same degree of choice among candidates available to other voters.
The court then turned to the argument that the tabulation scheme under the city’s system burdened voters’ constitutional rights to vote by effectively discarding, rather than counting, the votes from exhausted ballots. In support of this argument, the plaintiff pointed out that under the IRV in question voters whose ballots were exhausted did not have their ballots counted in further stages of the tabulation and that a candidate won the election when he received a majority of the votes from the continuing ballots, meaning the nonexhausted ballots. Rejecting this argument, the court determined that an examination of how restricted the IRV works, indicated that the supposed inequity was one of surface appearances and semantics, not substance. In essence, said the court, a more complete explication of the tabulation process demonstrated that exhausted ballots were counted in the election, they are simply counted as votes for losing candidates, just as if a voter had selected a losing candidate in a plurality or runoff election. The court added that in the terms used by election experts, these are “wasted” votes not because they are not counted but because they were cast for candidates not ultimately elected, noting that both IRV and restricted IRV tend to result in fewer entirely wasted votes than plurality voting because voters whose first-choice candidate is eliminated may choose the winning candidate as their second- or third-choice pick.
The court in Dudum v. City and County of San Francisco, 2010 WL 1532365 (N.D. Cal. 2010), held that registered voters failed to demonstrate that San Francisco’s restricted instant runoff voting (IRV) system was not rationally related to legitimate governmental interests and thus failed to show that the system violated their due process and First Amendment associational rights. Voters were permitted to rank no more than three choices, regardless of how many candidates qualified for the ballot, a system that avoided voter confusion and reduced the likelihood of tabulation or voter error. The court found that alternatives, such as a system whereby voters would fill out multiple ballot cards or a single lengthy ballot card, in order for unrestricted IRV through the use of existing voting machines would undermine San Francisco’s interest in an orderly, accurate election process.
The Supreme Court of Minnesota in Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683, 67 A.L.R.6th 733 (Minn. 2009), affirmed a judgment rejecting challenges to the constitutionality of a city’s instant runoff voting (IRV) election methodology, including allegations that the method violated rights to vote and to associate for political purposes under both the United States and the Minnesota Constitutions. The IRV methodology eliminated the process of separate primary and general elections in favor of a single election in which voters could rank all candidates for a particular office in order of the voters’ preference. Counting of the ballots then simulated a series of runoff elections, each narrowing the field of candidates until a candidate achieved the designated threshold number of votes to be elected.
The challengers argued that IRV burdened the right to vote by giving some votes more weight than others, by diluting some votes for the benefit of another, by allowing the second choice of one voter to harm the first-choice vote of another voter, by reallocating proportional “surplus” second-choice votes of voters who voted for a winner while second-choice votes of voters for continuing candidates were not counted, by allowing fractions of a vote to go to different candidates, and by creating the possibility that casting a vote for a preferred candidate might harm the chances for that candidate to win office. The court rejected the challengers’ argument that the vote for a continuing candidate was exhausted in the first round in which it was exercised and then was not counted and was of no effect in subsequent rounds. On the contrary, the court observed, the vote for a continuing candidate was carried forward and counted again in the next round.
The court explained that just because the vote was not counted for a different candidate in the new round, as was the vote originally cast for an eliminated candidate, did not mean that the ballot was exhausted, that the vote for the continuing candidate was not counted in the subsequent rounds, or that the voter had lost the ability to affect the outcome of the election. Moreover, the court continued, this aspect of the IRV methodology was directly analogous to the pattern of voting in a primary/general election system. The court explained that in a nonpartisan primary election, each voter’s vote counts in determining which two candidates survive to reach the general election, and in essence, those primary votes are the voters’ first-choice ranking of the candidates. As a result of the primary, the court observed, all but the top two candidates are eliminated, and then, in the general election, voters who voted for candidates eliminated in the primary are allowed to cast another ballot, which necessarily will be for a different candidate—presumably, their second choice. The court noted that this was no different than the counting of the second-choice votes of voters for eliminated candidates in instant runoff voting.
At the same time, the court continued, in the general election, voters who voted in the primary for either of the two surviving candidates are allowed to vote again, and they are most likely to vote again for their choice in the primary, and the court said that this was the equivalent of the continuing effect of the first-choice votes for continuing candidates in instant runoff. The court said that while the contestants attempted to distinguish the primary/general election system on the basis that those elections were separate, independent events, the effect in terms of the counting of votes was the same. The court rejected the challengers’ assertion that in a multiple-seat race, the reallocation of “surplus” votes gave the voters for a winning candidate a second opportunity to influence the outcome of the election by counting their second-choice votes for the next seat, while all voters for nonwinning and noneliminated candidates had only one opportunity to influence the election, because only their first-choice vote was counted. The court, pointing out that the challenge to the methodology was a facial challenge, and that the challengers could succeed only if they had demonstrated that IRV violated constitutional principles in every application, responded that the reallocation of surplus votes would not inevitably occur in every multiple-seat election, such as if in the first round a sufficient number of candidates received at least the threshold number of votes to fill all the available seats. The court similarly rejected arguments that the reallocation of fractions of votes to different candidates violated constitutional principles, pointing out that these arguments were premised on the reallocation of surplus votes in multiple-seat elections, but that there was a circumstance in which there would be no need for reallocation of surplus votes in a multiple-seat election.
The court also rejected an argument that the fact that IRV was “non-monotonic” required a conclusion that the system violated voters’ right to vote, explaining that a voting system is “monotonic” if voting for a preferred candidate or ranking the preferred candidate higher, without changing the order of ranking other candidates, can hurt the preferred candidate’s chances of winning. Although admitting that it is disconcerting to acknowledge that a voter cannot be sure that his or her vote for a candidate will help, rather than hurt, that candidate, the court pointed out that any system that involves a process for narrowing a field of three or more candidates has that potential. However, the court continued, this is not because a vote for the preferred candidate counts for less in some circumstances, but rather because of the consequent changes in the relative strength of the other candidates, so accordingly, the fact that IRV was nonmonotonic did not establish that the system interfered with the right to vote. The court added that even if nonmonotonicity were viewed as an indication that the right to vote might be burdened, a further problem with the monotonicity argument was that the challengers had provided no evidence, even on a hypothetical basis, of the frequency with which the nonmonotonic effect was likely to occur in a real-world election—that is, what proportion of voters would be adversely affected. The court further explained that since the challengers had failed to establish that IRV on its face burdened the right to vote, and that even if it could be construed as a burden, that burden was minimal, the next question was whether there were important regulatory interests that justified the burden. The court reasoned that the proffered interests of reducing the costs and inconvenience to voters, candidates, and taxpayers by holding only one election, increasing voter turnout, encouraging less divisive campaigns, and fostering greater minority representation in multiple-seat elections were all legitimate interests for the city to foster and that it was plausible that IRV might advance one or more of these interests.
There is case law that considered the validity of local provisions providing for instant runoff voting methodologies, in light of state and federal constitutional substantive due process guarantees.
In Dudum v. City and County of San Francisco, 2010 WL 3619709 (N.D. Cal. 2010), aff’d on other grounds, 640 F.3d 1098 (9th Cir. 2011), the court upheld the validity of a city voting provision calling for a restricted instantrunoff voting system (IRV), despite a challenge based substantive due process. The provision called for a ranked choice system whereby all voters could rank candidates by order of preference. All first-choice rankings were counted first. If a candidate received a majority of votes, he or she won the election. If not, the candidate who received the fewest first-choice rankings was eliminated. The second-choice rankings of voters who supported the eliminated candidate were then redistributed and all votes were retabulated. If no candidate with majority support emerged, the process is repeated. The provision also contained the caveat that the election’s director could limit voters to no more than three choices if the voting system, vote tabulation system, or similar related equipment could not feasibly accommodate choices equal to the total number of candidates for each office. The court explained that while an election is a denial of substantive due process if it is conducted in a manner that is fundamentally unfair, only a pervasive error that undermines the organic processes of the ballot is sufficient to trigger constitutional scrutiny.
The plaintiff voters asserted that, at least in fields with more than four candidates, involuntary ballot exhaustion blocked some voters from equal and meaningful participation in the franchise, and that the informative materials distributed to voters in support of IRV, adopted by proposition, were grossly misleading because they implied that voters could rank by order of preference all candidates in a field, even though the city should have known that logistical realities would necessitate a three-choice limitation. The court responded that, as in the case of associational rights, the voters had not persuasively demonstrated that restricted IRV arbitrarily blocked voter’s access. As to the allegedly misleading materials, the court noted that officials answered that voter information pamphlets included the text of the proposition, which plainly discussed the three-choice limitation and the possibility that the director could adopt it and that the limitation was in the mix in public debate and conversation regarding the proposition. The court determined that it did not follow that voters would have been so uninformed or unaware of the three-choice limitation that they would have materially misunderstood the electoral system that they endorsed and that accordingly, language in the balloting materials that referred to unlimited forms of IRV as opposed to its restricted relative did not rise to the level of a due process violation.
Comment
In Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011), § 4, the court upheld the validity of the city voting provision calling for a restricted instant runoff voting system (IRV), despite a challenge based on the First and 14th Amendment associational right.
There is case law that considered the validity of local provisions providing for instant runoff voting methodologies, in light of state and federal constitutional equal protection guarantees.
The court in Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011), upheld the validity of a city voting provision calling for a restricted instantrunoff voting system (IRV), despite a challenge that the system was unconstitutional because it resulted in the dilution of certain votes and therefore violated the equal protection guarantee of “oneperson, onevote.” The provision called for a ranked choice system whereby all voters could rank candidates by order of preference. All first-choice rankings were counted first. If a candidate received a majority of votes, he or she won the election. If not, the candidate who received the fewest first-choice rankings was eliminated. The second-choice rankings of voters who supported the eliminated candidate were then redistributed and all votes were retabulated. If no candidate with majority support emerged, the process is repeated. The provision also contained the caveat that the election’s director could limit voters to no more than three choices if the voting system, vote tabulation system, or similar related equipment could not feasibly accommodate choices equal to the total number of candidates for each office. The parties contesting the validity of the restricted IRV maintained that some voters—those who voted for continuing candidates—only have one vote counted in the election while other voters had votes counted for three different candidates.
The court noted that at its core, the argument was that some voters were literally allowed more than one vote, while others were not. The court rejected this argument, stating that the argument mischaracterized the actual operation of the city’s restricted IRV system. In fact, said the court, the option to rank multiple preferences was not the same as providing additional votes, or more heavily weighted votes, relative to other votes cast. Noting that each ballot was counted as no more than one vote at each tabulation step, whether representing the voters’ first-choice candidate or the voters’ second- or third-choice candidate, and each vote attributed to a candidate, whether a first-, second-, or third-rank choice, was afforded the same mathematical weight in the election, the court concluded that the ability to rank multiple candidates simply provided a chance to have several preferences recorded and counted sequentially, not at once.
The Supreme Court of Minnesota in Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683, 67 A.L.R.6th 733 (Minn. 2009), affirmed a judgment rejecting challenges to the constitutionality of a city’s instantrunoff voting (IRV) election methodology, despite allegations that the method violated rights to equal protection. The IRV methodology eliminated the process of separate primary and general elections in favor of a single election in which voters could rank all candidates for a particular office in order of the voters’ preference. Counting of the ballots then simulated a series of runoff elections, each narrowing the field of candidates until a candidate achieved the designated threshold number of votes to be elected.
The court pointed out that this claim appeared to be based primarily on arguments about unequal weighting of votes but that there was no unequal weighting in the IRV system for single-seat races or in multiple-seat races where no allocation of surplus votes occurred. Moreover, the court said that this claim was not supported by the legal authority on which it was premised, specifically, the United States Supreme Court’s one–person, one–vote jurisprudence, and Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000).
As to the one–person, one–vote cases, the court explained that these had their origin in the malapportionment of legislatures whereby the number of voters in some districts electing one legislator was several multiples higher than in other districts, meaning that a vote in the smaller population district had more impact in terms of electing a legislator than a vote in the more populous district, while no such vote inequality was created by IRV. As to the contention that under IRV, some votes were counted differently than others, and the system therefore violated the equal protection principles articulated in the Bush case, the court responded that the essence of the equal protection problem addressed in that case was that because there were no established standards under state law for discerning voter intent, in the recount process ballots were being judged differently from county to county, and even within individual counties, but that in contrast, in the IRV system, every ballot and every vote was counted by the same rules and standards.
