Instant runoff voting: a cure that is likely worse than the disease.

• Jurisdiction: United States
• Author: Langan, James P.
• Date: 01 February 2005

INTRODUCTION

Majority rule is a basic principle of democratic elections in the United States. (2) Candidates who win with majority support possess a clear mandate from the electorate and increase their own legitimacy as leaders of the people. (3) Yet, majority winners have become less common during the last decade, as the number of plurality winners increased in both federal and state elections. (4) The winners of three of the last four presidential elections, as well as thirteen currently serving governors, have failed to receive a majority of the votes cast. (5) Compounding this problem is the fact that usually less than half of the eligible electorate participates in elections. (6) As a result, the current electoral system in the United States often results in minority rule, with many elected officials winning their jobs with the support of merely a plurality of the minority of citizens. It comes as no surprise that many citizens have become cynical about the electoral process. (7)

Instant runoff voting (8) is an electoral reform gaining momentum in state legislatures (9) that aims to ensure majority rule. (10) The recent increase in interest in adopting instant runoff voting in national, state, and local elections is a response to problems in the current electoral system that need to be remedied. Instant runoff voting initiatives, however, will face difficulties in complying with many state electoral statutes because they do not result in "majority winners," as that phrase is traditionally defined. Even if instant runoff voting can clear this substantial statutory hurdle, the potential benefits of this reform do not outweigh its potential side effects. Therefore, state and local governments should refrain from passing instant runoff voting legislation until these problems are addressed.

Part I of this Note explains instant runoff voting and describes recent instant runoff voting legislation passed across the United States. Part II discusses instant runoff voting's compatibility, or lack thereof, with state election statutes and state constitutions. Parts III and IV delve into the policy implications of enacting instant runoff voting. Part III analyzes the potential benefits of instant runoff voting put forth by its supporters, including increasing the legitimacy of elected officials, eliminating the "spoiler problem," saving money, and increasing voter turnout. Part IV considers the arguments of the detractors of instant runoff voting: voter confusion and election security. As a result of each of these discussions, this Note concludes that legislatures should refrain from implementing instant runoff voting because of the confusion, uncertainty, and instability it would likely create.

1. BACKGROUND

   Plurality voting, a voting system in which the person who receives the most votes wins, is currently the predominate form of voting in the United States. (11) In contrast to this traditional electoral system, in an instant runoff voting system, voters rank candidates--as first, second, third and so on--according to their preferences. Initially, only the first place votes are counted. If one candidate receives a majority of the first place votes cast, that candidate is declared the winner of the election. (12) Up to this point, votes are counted in the exact same fashion as a traditional plurality/majority election. If no candidate receives a majority of first place votes, however, an instant runoff voting system requires that there be a second round of vote counting. In this second round, the candidate with the fewest first place votes is eliminated. The second place votes of the voters who chose the last place candidate as their first choice are then redistributed among the remaining candidates. If one of the remaining candidates has still not received a majority of the votes, (13) the next lowest vote getter from the previous round is newly eliminated, and the second place votes of the voters who chose the eliminated candidate are then redistributed among the remaining candidates. (14) This process continues until one candidate receives a preferential majority. (15)

   Many legislatures have recently considered implementing instant runoff voting. In 2003 alone, eighteen state legislatures considered bills proposing the implementation of instant runoff voting. (16) Two additional states considered bills in 2001 (17) and Alaska held the first statewide vote on whether to implement instant runoff voting in August of 2002. (18) Although most of these state bills failed, many were carried over to the next legislative session and are still pending. (19) The Maine legislature passed a law directing the Secretary of State to perform a study on the feasibility of establishing instant runoff voting. (20) In addition, the Louisiana legislature implemented instant runoff voting for military and overseas ballots. (21) On the municipal level, voters in many cities and towns have passed charter amendments permitting the use of instant runoff voting. (22) The U.S. Congress has recently considered instant runoff voting as well. In January 2003, Congress introduced a bill that called for the creation of a commission to analyze "alternative methods of electing House Members," including instant runoff voting. (23) Two other instant runoff voting bills were introduced in 2001. (24)

2. THE LEGALITY OF INSTANT RUNOFF VOTING

   1. State Election Laws

      Instant runoff voting must be consistent with a state's electoral laws in order for it to be implemented. Ironically, instant runoff voting's greatest apparent strength, its proclaimed ability to create majority winners in an election, may actually be the biggest impediment to its implementation. Many state constitutions and election laws require candidates to receive a majority of the votes cast in order to win an election. (25) A preferential majority in an instant runoff voting election, however, is not the same as a majority in a traditional election because preferential majorities combine first-place and non-first-place votes to obtain a "majority." "Majority in the 'classic' sense ... consists of more than half of the original votes ... cast and not re-assigned by the voter's secondary or tertiary intent." (26) As a result, how the term "majority" is interpreted in the context of state laws and constitutions will determine the legality of instant runoff voting in various jurisdictions.

      1. State Election Laws Inconsistent with Instant Runoff Voting

         In some states, such as Washington, instant runoff voting is clearly inconsistent with state electoral law. (27) Washington law requires cities to hold primary elections to decide which two candidates will compete in a November general election. (28) The city of Vancouver, Washington, approved instant runoff voting in 1999; (29) an action that would have eliminated primary elections in violation of Washington election law. As a result, the city was unable to proceed with instant runoff elections without a change to state electoral laws. Attempts to change Washington election laws to bring them into compliance with instant runoff voting have thus far been unsuccessful. (30)

         Efforts to implement instant runoff voting in Texas have also been stymied by legal concerns. The Texas Secretary of State determined that the city of Austin may not implement instant runoff voting because it does not provide for majority winners as required by section 275.002 of the Texas Election Code. (31) This statute states that "[t]o be elected to a city office, a candidate must receive a majority of the total number of votes received by all candidates for the office." (32) Although the Texas Secretary of State's Office conceded that the term "majority" could theoretically include a preferential majority, it determined that the Texas Election Code requires "traditional" majorities. (33)

         In making its determination, the Secretary of State's Office looked at how the word "majority" is used in other parts of the Texas Code and how the term has been interpreted by courts. (34) In effect, the Secretary of State's Office followed section 311.023 of the Texas Government Code, which directs courts on the proper interpretation of statutes. This statute states that "[i]n construing a statute ... a court may consider among other matters the ... legislative history [and] common law or former statutory provisions, including laws on the same or similar subjects...." (35)

         Under its state election laws, Texas requires a traditional runoff election if there is no majority winner, (36) which indicates that the Texas legislature did not intend for a mere preferential majority to suffice for a candidate to win office. In addition, the Secretary of State looked to legislative history to determine the meaning of "majority." The Texas Election Code at one time included a "preferential vote alternative," but the Legislature deleted that language from the Code in 1985. (37) As a result, the Texas Secretary of State's Office declared that it was "reluctant to read preferential voting back into the Code by administrative interpretation when the legislative context does not otherwise support that conclusion." (38) As such, the Secretary of State determined that the term "majority" is consistently used in the Texas Election Code to mean "traditional," rather than "preferential," majorities. (39)

      2. State Election Laws More Favorable to Instant Runoff Voting

         In contrast to Texas and Washington, the election laws of some states expressly authorize the use of preferential voting systems such as instant runoff voting. In Michigan, for example, preferential voting is expressly authorized by law. (40) Specifically, the law states that "[e]lections may be by a partisan, nonpartisan, or preferential ballot, or by any other legal method of voting." (41) In accordance with this statute, Michigan courts have upheld voting systems involving "preferential" majorities. (42)

         The election laws of some...