In 2000, a charter commission in Austin, Texas unanimously recommended instant runoff voting for its city elections to replace its two-round runoff election system. As citizens began rallying behind that recommendation, the city council drew back from placing it on the ballot after the Texas Secretary of State issued an Election Law Opinion that advised cities they were not legally authorized to use instant runoff voting.

The Attorney General of Texas is currently considering whether or not instant runoff voting is legal under Texas law. The Center has submitted the following brief to the Attorney General of Texas, arguing that Texas law authorizes cities to use instant runoff voting. We expect an Opinion to be issued by the Attorney General by late February of 2003, and if the opinion is favorable, we expect the city council of Austin and other Texas cities will again seriously consider using instant runoff voting. The Center's General Counsel Dan Johnson-Weinberger authored the brief; queries about the brief may be directed to him at djw(AT)fairvote.org.

[You can also download the brief (.doc 38.5kB)]

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October 9, 2002

Office of the Attorney General
John Cornyn
Post Office Box 12548
Austin, Texas 78711-2548

Re: Request No. 0591-JC

Thank you for this opportunity to submit a written brief and the kind outreach to our organization in the first place in your letter dated September 3, 2002. Thank you also for the one-week extension to file this brief. My name is Dan Johnson-Weinberger and I am the General Counsel for the Center for Voting and Democracy, a 501(c)(3) non-profit, non-partisan organization that researches and advocates for better voting systems in the United States. Our headquarters is in Takoma Park, Maryland. We are the nation’s leading organization on instant runoff voting. I am licensed to practice law in California.

Enclosed please find our brief that we respectfully submit to the Opinion Committee for their perusal. I will transmit a copy by facsimile and send a hard copy through the U.S. mail as well.

Again, thank you for the opportunity to participate in this process and the above-the-call-of-duty outreach to our organization.

Home rule municipalities are authorized to implement instant runoff voting, because instant runoff voting is consistent with an election by majority vote and thus complies with the plain language of Section 275.003(d) of the Texas Elections Code.




TEXAS LAW PERMITS HOME RULE MUNICIPALITIES TO USE ANY VOTING SYSTEM THAT IS CONSISTENT WITH A MAJORITY REQUIREMENT

Texas law requires that cities with a population of more than 200,000 use a majority voting system. Section 275.002 of the Elections Code reads: “To 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.” However, state law does not specify exactly how cities are to conduct an election with a majority requirement. While Section 275.003(b) and 275.003(c) describe one method of conducting an election to fulfill the majority vote requirement of 275.002 (the traditional by-place, at-large system), the code also explicitly authorizes cities to design their own voting systems, so long as they fulfill the majority requirement of 275.002. Section 275.003(d) of the Texas Elections Code reads:

“The city shall use the place system required by this section until the city establishes another system of election that is consistent with an election by majority vote.”

State law is silent as to what voting systems qualify as “consistent with an election by majority vote.” The plain language of the statute suggests that any voting system that is consistent with an election where a candidate must earn more than half of the votes to win would satisfy the requirement.

Note that the proper question at hand is whether a proposed voting system is a “system of election that is consistent with an election by majority vote” Tex. Elections Code 275.003(d) and not, as the Secretary of State’s Electoral Opinion argues, whether instant runoff voting fits a supposed ‘classical’ definition of “majority” which he narrowly defines as a two-round runoff election. Election Law Opinion HC-1 (2001). Though subtle, there is a difference between the two standards, as the standard for judging a system that is “consistent with” an election by majority vote is more permissive than a standard that simply compares a voting system to a particular example of a majority voting system. One absurd consequence of the Secretary of State’s incorrect standard would be to limit the authority of home-rule cities to only those election systems that fit the ‘classical’ example of majority election systems: two-round runoff elections. The plain language of Section 275.003(d) does not support such an interpretation. If the legislature intended to limit all home-rule cities to conducting only two-round runoff elections, Section 275.003(d)’s reference to a “system of election that is consistent with an election my majority vote” is both superfluous and meaningless. In other words, because the legislature specifically authorized voting systems “consistent with an election by majority vote” and defined runoff elections elsewhere in the code, the legislature did not intend to only authorize traditional two-round runoff elections.

A PRIOR ATTORNEY GENERAL OPINION ANALYZING THE TEXAS CONSTITUTION’S MAJORITY REQUIREMENT CONTROLS THE INTERPRETATION OF STATE LAW’S MAJORITY REQUIREMENT

An earlier Attorney General Opinion wrestled with a very similar majority requirement in the Texas Constitution and can provide guidance to the proper method of construing the majority vote requirement of section 275.003(d). In 1984, the Attorney General considered whether a majority requirement in the Texas Constitution allowed a home-rule city to use single-member districts instead of by-place at-large elections. Op. Tex. Att’y Gen. JM-179 (1984). Article XI, Section 11 of the Texas Constitution is similar to Section 275.002 of the Texas Elections Code. The Constitution reads in pertinent part:

A municipality so providing a term exceeding two (2) years but not exceeding four (4) years for any of its non-civil service officers must elect all of the members of its governing body by majority vote of the qualified voters in such municipality. . .”
   Tex. Const. art. XI s 11 (emphasis added)

The Attorney General found that the purpose of the majority vote provision of the Constitution: “. . .must elect all of the members of its governing body by majority vote” (Id.) was to preclude plurality voting systems, where candidates can win the election with less than a majority of the votes cast.

“The purpose of the underscored language of the amendment was only to ensure that a majority vote, rather than a plurality vote, of the qualified voters so voting is necessary.”
    1-2, Op. JM-179 (emphasis in original).

A plurality vote is commonly understood to mean a voting system where the candidate with the most votes wins the election, regardless of whether he or she earns a majority of the vote. While plurality elections are not the opposite of majority vote elections (as the majority winner is also the plurality winner), they are often contrasted as two types of voting systems.

The Attorney General reasoned that because single-member districts impose a majority requirement as consistently as traditional by-place, at-large elections, the Constitution permitted their use.

“We therefore construe section 11 of article XI as not prohibiting the adoption of four-year terms for municipal officials elected from only a portion of a municipality, i.e., single-member districts. The underscored language of section 11 requires only that any election for members of the governing body of a home rule city be by majority vote of the qualified voters so voting.”
    2, Op. JM-179 (emphasis in original).

The proper interpretation of the majority requirement of Section 275.003(d) of the Texas Elections Code is analogous. The Attorney General is currently called upon to consider whether the majority requirement of 275.003(d) permits a home rule city to use instant runoff voting instead of a traditional two-round runoff election. Just as the purpose of the majority requirement in the Texas Constitution was to preclude plurality voting (see Tx. Att’y Gen. Op. JM-179), the clearest purpose of the majority requirement of Section 275.003(d) is to preclude plurality voting in city elections. Thus, the proper question for the current Attorney General is similar to the question faced by the Attorney General in 1984: whether instant runoff voting is “consistent with an election by majority vote” and thus compliant with the purpose of precluding a mere plurality election.

As the Attorney General found that a constitutional provision requiring a majority vote in municipalities did not preclude home rule municipalities from using single-member districts, the Attorney General must find that a statutory provision requiring a majority vote in municipalities does not preclude home rule municipalities from using instant runoff voting.

INSTANT RUNOFF VOTING IS CLEARLY CONSISTENT WITH A MAJORITY VOTE WHEN THE WINNER EARNS A MAJORITY OF ALL VOTES CAST

Instant runoff voting is a voting system consistent with an election by majority vote when the winner earns a majority of all the votes cast. Even instant runoff voting systems that do not require the winner to earn a majority of all the votes cast are just as consistent with an election by majority vote as are traditional two-round runoff elections.

Instant runoff voting is a preferential voting system used in many jurisdictions around the world, including Ireland, London, Australia, Utah, Louisiana and San Francisco. Voters have the ability to rank candidates (1, 2, 3) and ballots are counted in rounds, just as in a runoff election where the last-place candidate is eliminated and continuing candidates compete to earn a majority of votes and be declared the winner of the election.

The traditional method of designing a majority voting system is by holding a separate runoff among only the top two candidates if no candidate earns a majority of votes cast in the original round. For purposes of illustration, assume an election with 10,000 votes. The majority threshold is thus 5,001 votes (1 vote more than 50% of 10,000). Any election system that requires a candidate to earn at least 5,001 votes to win is a majority system. A traditional two-round runoff system is a majority system. If no candidate earns 5,001 votes of the 10,000 cast, a runoff is held between the two candidates. Barring a tie, with only two candidates, the winner will earn a majority of the votes cast in the runoff.

To illustrate the point, consider the following scenario:

Candidate     Original Round     Runoff
A                     4000                     6000
B                     3500                     4000
C                     2500                     N/A

Because no candidate earned a majority of the votes in the original round, a runoff between the top two candidates must be held. All voters whose candidates did not make the runoff return to the polls and select from the remaining candidates. Candidate A earned a majority of the votes in a runoff and is the winner.

Instant runoff voting works the same way. In order to win, a candidate would have to earn a majority of the total votes cast: 5,001 votes out of 10,000, for example. Assume there are three candidates running, A, B and C. Assume the following scenario:

Candidate      Original Round     Transfer     Runoff Round
A                         4000                    +2000         6000
B                         3500                    +500            4000
C                         2500                    -2500           0

Here, no candidate earns the requisite 5,001 votes in the first round of counting, so an instant runoff is held. The last place candidate, C, is eliminated, and all runoff votes (i.e., second preferences of those voters whose first preference candidate did not make the runoff) are counted on ballots that gave C their first-choice. In our scenario, 2,000 of the 2,500 votes cast for C indicated A as a runoff-choice candidate, while 500 of the 2,500 votes indicated B as a runoff-choice candidate, the same as in the two-round example above. In the runoff round, A has a total of 6,000 votes, more than the necessary 5,001 votes to earn a majority of the total votes cast. A clear majority of voters prefer A over B once C is eliminated, just as in a traditional two-round runoff system. The only legal difference between a traditional, two-round runoff election and instant runoff voting is the timing of when voters of the eliminated candidate express their second preference among the continuing candidates. In a two-round runoff election, voters express their runoff choice in a separate and subsequent ballot. In an instant runoff voting election, voters express their runoff choice on a single ballot by ranking the candidates. There is no other legal distinction.

Thus, this instant runoff voting system where a winner must earn a majority of all the votes cast is unassailably consistent with an election by majority vote, as it is the same construct of a two-round runoff election.

INSTANT RUNOFF VOTING IS ALSO CONSISTENT WITH AN ELECTION BY MAJORITY VOTE IF THE WINNER NEED ONLY EARN A MAJORITY OF VOTES IN THE LAST ROUND OF COUNTING, JUST AS IN A TWO-ROUND RUNOFF

What if the supporters of the eliminated candidate do not have a second preference, leaving the winner with fewer votes than a majority of the total votes cast? Is instant runoff voting then consistent with a majority voting system? Here is the scenario, first with a two-round runoff election.

Candidate     Original Round     Runoff
A                     4000                     4000
B                     3500                     3500
C                     2500                     N/A

In the original round, no candidate earns a majority of the 10,000 votes cast. The last-place candidate, C, is eliminated from the runoff. However, none of the 2,500 supporters of candidate C decide to vote in the runoff, because they have no preference between candidate A and B, and so there are only 7,500 voters in the runoff. Candidate A earns 4,000 out of 7,500 votes (53.3%) and is declared the winner.

There is no requirement under Texas law that the winner of a runoff election earn a majority of votes cast in the original round, only a majority of votes cast in the runoff. Candidate A would be declared the majority winner of the runoff, even though candidate A did not earn a majority of the votes cast for the office in the original round.

Assume that the same voters cast ballots in an instant runoff voting election.

Candidate     Original Round     Transfer     Runoff
A                     4000                     +0                4000
B                     3500                     +0                 3500
C                     2500                     -2500            0

Again, no candidate earns the necessary 5,001 votes of the 10,000 votes cast to win the election outright, so an instant runoff is held. The last place candidate, C, is eliminated. However, none of C’s supporters indicated a runoff choice candidate at all. No votes are transferred to either A or B, and neither candidate earns the 5,001 vote necessary to earn a majority of all votes cast. The academic term for these 2,500 C votes that do not transfer to either A or B is “exhausted ballots” and are comparable to stay-at-home voters in a two-round runoff.

This voting system is also consistent with a majority vote. Just as winners of two-round runoff elections are not required to earn a majority of votes cast in the original round but only a majority of votes cast in the runoff, so too should winners of an instant runoff voting election be required to earn a majority of only those votes cast in the final round of counting; that is, among all voters who indicated a preference between A and B. Candidate A has earned a majority of the 7,500 ballots still in play after C’s 2,500 votes have been eliminated, and thus, A has earned a majority of votes. A candidate must earn a total of all votes cast in the final round of counting, and the relevant majority threshold adjusts to reflect any exhausted ballots (those that did not indicate any preference among the continuing candidates). The winning candidate earned a majority of the votes cast that expressed any preference between A and B.

Unless the Attorney General is prepared to interpret the meaning of a majority in a runoff to require a majority of votes cast in the original round, there should be no interpretation of Texas law that the winner of an instant runoff voting election must earn a majority of all the votes cast, and not simply a majority of the votes in the final round of counting.

INSTANT RUNOFF VOTING IS STILL AUTHORIZED UNDER STATE LAW EVEN IF THE STANDARD FOR A MAJORITY IN AN INSTANT RUNOFF VOTING ELECTION IS HIGHER THAN THE STANDARD FOR A MAJORITY IN A TWO-ROUND RUNOFF ELECTION, IF ADDITIONAL PROVISIONS ARE INCLUDED.

However, if the Attorney General or Texas courts hold instant runoff voting to a different and higher standard than a two-round runoff election and interpret the majority for an instant runoff voting election as a majority of the total votes cast and not a majority of the votes cast in the final round of counting, instant runoff voting is still authorized under state law, so long as majority-producing provisions are included in any home rule charter.

A traditional provision to add to an instant runoff voting system would be a separate runoff requirement if the winning candidate did not earn a majority of the total votes cast and only earned a majority of the votes cast in the final round of counting. Holding a separate runoff is an incontrovertible method of complying with the majority requirement of state law and the state constitution. See Tex. Op. Att’y Gen. JC-0293 (2000). Nothing in state law precludes instant runoff voting and an option for a separate runoff if necessary in the same city charter.

CONCLUSION

The Attorney General must follow the precedent of the 1984 Attorney General Opinion and rule that municipalities are authorized to use instant runoff voting as a voting system consistent with a majority vote under Texas Elections Code 275.003(d). Legislative silence on preferential voting does not preclude municipalities from exercising their home rule authority to craft their own voting systems consistent with a majority vote.