RECLAIMING ELECTORAL HOME RULE: INSTANT-RUNOFF VOTING, NEW YORK CITY'S PRIMARY ELECTIONS, AND THE CONSTITUTIONALITY OF ELECTION LAW s. 6-162.

• Author: Urbach, Sacha D.

Introduction 1296 I. Only in America: An Overview of Electoral Systems in the United States 1301 A. First-Past-the-Post Voting Systems 1301 B. Traditional Runoff Systems 1303 C. Primary Elections 1305 D. Instant-Runoff Voting 1307 E. IRV Advocacy in New York City 1318 II. Home (Rule) Is Where the Heart Is: New York's Election Law and the Legal Framework of Implementing IRV in New York City 1321 A. Home Rule in New York 1322 i. Preemption Generally, 1322 ii. Special Laws: The Home Rule Message Requirement and Preemption 1327 B. The Intersection of State and Local Election Law: [section] 6-162 1332 i. The History of [section] 6-162 1332 ii. Legal Challenges to [section] 6-162 1335 III. The Path of Most Resistance: A Roadmap to IRV in New York City 1340 A. Policy Considerations in Implementing IRV 1340 B. New York City's Paths to Implementing IRV Under Current State Law 1342 i. A City IRV Statute with a Vote Threshold Greater than Forty Percent 1343 ii. Abolishing Primaries to Circumvent [section] 6-162 1344 iii. Amending [section] 6-162 Via the State Legislature 1346 iv. Challenging [section] 6-162 as Unconstitutional 1347 Conclusion 1350 INTRODUCTION

What do the Oscars, Australia, and the City of San Francisco have in common? All three use an unconventional voting system (1) to select winners in their respective contests for Academy Awards or political office called instant-runoff voting (IRV). (2) In IRV elections, voters rank multiple candidates for a single position, rather than only picking a single candidate for a given position. (3) Recently, IRV has become an increasingly discussed option for electoral systems both at the state and city level. (4) In 2016, Maine became the first state to adopt IRV and implemented the system statewide in 2018--doing so for its U.S. Senate and House races. (5)

Proponents of IRV argue that it has many benefits, but the central idea behind the system is that it is the most efficient means of preventing unpopular candidates from winning elections with a plurality--rather than a majority--of the vote. (6) One recent example of the kind of result IRV seeks to prevent is the 2018 Democratic primary for Massachusetts's third congressional district, where Lori Trahan declared victory after securing less than 21% of the vote. (7)

Those in favor of IRV argue that it does more than just combat low-plurality winners. Perhaps most importantly, IRV elections can replace costly and relatively low-turnout runoff and primary elections, saving cities and states tens of millions of dollars while increasing voter participation. (8) Additionally, by creating a system that incentivizes candidates to appeal to a broader swath of the electorate, rather than just their base, IRV can help combat hyper-partisan campaigning and governing. (9) This can give voters in the political minority a louder voice in their government (10) and increase voter satisfaction with the electoral process. (11) This can be particularly important in cities like New York City, where one party often dominates local politics. (12) It is also relevant in traditionally conservative states like Texas, where the conservative leanings of the state are often at odds with the goals of progressive cities like Dallas, or El Paso. (13) In statewide IRV systems, gubernatorial candidates in states with a city-state political dynamic similar to that of Texas would be incentivized to appeal to voters beyond the traditionally conservative state electorate. (14)

While only one state has implemented IRV thus far, many cities have been using the system for some time, (15) and more cities and states are now seriously considering employing IRV in future elections. (16) This includes New York City, the largest city in the country, (17) and one that often portrays itself as a champion of progressive policies. (18) For New York City, as with many other cities in the United States, implementing any major change to local election law presents a potentially complex legal issue, as there are often conflicts between state law and local law in this arena. (19) New York State law prescribes a runoff mechanism for three New York City primaries--including its mayoral primaries. (20) In considering IRV for its primary elections (or any other change to its local elections), New York City risks potential preemption challenges from the state that could thwart any attempt to alter its voting laws. (21) In particular, [section] 6-162 of New York's Election Law likely preempts the City from unilaterally altering its voting laws to implement IRV. (22) While amending [section] 6-162 to provide for IRV is one way to address this issue, efforts to do so at the state level have been unsuccessful. (23) Further, given the fact that New York State Law regulates this aspect of New York City elections, [section] 6-162 will remain a legal obstacle for New York City in the future even if it is amended to prescribe IRV for city primary elections. (24) As long as [section] 6-162 remains in effect, New York City will not have the same legal autonomy to regulate its own elections as other localities throughout the state.

This Note argues that New York City should implement IRV for its elections, but it should not do so through the options currently being advocated--those options being a unilateral city charter revision or an amendment to [section] 6-162 at the state level. Through a careful analysis of [section] 6-162, its legislative history, subsequent judicial interpretations, and existing legislation, this Note ultimately concludes that [section] 6-162 violates both the New York Constitution and the basic principles embodied in New York's home rule doctrine. For this reason, this Note argues that [section] 6-162 should first be repealed or declared unconstitutional, and only then should New York City implement IRV through a charter revision.

Part I begins with an overview of the predominant electoral systems in the United States. It also provides an overview of IRV and examines arguments by its proponents, who claim that it is a better system than first-past-the-post and runoff schemes, and by its critics, who disagree. Part II focuses specifically on New York State and New York City--the current electoral dynamic between the city and the state, how that dynamic developed, and how this structure creates a legal obstacle that prevents New York City from unilaterally implementing IRV for its most important city elections. In its final Part, this Note first argues that, from a policy perspective, IRV makes sense and more cities and states, including New York City, should adopt it. Part III also presents multiple solutions that would allow New York City to unilaterally implement IRV, but ultimately concludes that a direct challenge to the constitutional validity of [section] 6-162 --one that would unambiguously clear the way for unilateral implementation by the City--is the best path forward.

1. ONLY IN AMERICA: AN OVERVIEW OF ELECTORAL SYSTEMS IN THE UNITED STATES

   Because the U.S. Constitution delegates the power to regulate elections--city, state, and federal--to the states, (25) the United States has a uniquely decentralized electoral system, where different states employ different systems, and cities within those states often employ systems different from the state in their local elections. (26) This Part examines the major voting schemes utilized by cities and states in the United States. Section LA examines the most popular voting system: first-past-the-post. Section LB examines runoff elections, while Section I.C will examine primary elections. Section I.D examines instant-runoff voting, how advocates for this kind of system have argued it can solve the various problems associated with first-past-the-post, primary, and runoff systems--and critics' responses to those arguments. Lastly, Section I.E will explore IRV advocacy less abstractly by examining New York City and how lawmakers and advocates at both the state and city level have attempted to bring IRV to New York City.

   1. First-Past-the-Post Voting Systems

      In order to discuss instant-runoff voting, it is first necessary to establish a working understanding of the predominant voting scheme in the United States: first-past-the-post (27) (FPP). (28) Under FPP systems, the candidate who receives the most votes is declared the winner. (29) This is true whether the candidate receives 99% or 9% of the total vote, as long as that total is greater than that of the next best candidate. Every state except Maine utilizes this system for federal elections, including presidential elections. (30) While FPP elections seem intuitive for many people, they can lead to seemingly undemocratic results in cases where a candidate wins with significantly less than a majority percentage of the total vote. (31) This risk directly increases as the number of candidates in a given field increases. (32) In a two-candidate race, which is typically a general election, FPP does not pose this problem, because one of those candidates will necessarily need to secure a majority in order to win. But in a more crowded field, such as a primary election where there can be upwards of ten candidates, a candidate could hypothetically win by securing only about 10% of the vote. (33)

      FPP systems also incentivize hyper-partisanship by candidates. In a crowded field, a candidate in an FPP system is rewarded by isolating a faction of the electorate rather than by appealing more broadly to the entire electorate, especially in a single-party primary. (34) This, by extension, incentivizes negative campaigning by candidates, where the focus is on attacking opponents and isolating a faction, rather than on advocating for their policies--something that gets voter's attention, but they paradoxically detest. (35)

   2. Traditional Runoff Systems

      Several states (36) and cities (37) mitigate the problem of low-plurality winners through a runoff mechanism within...