CVD Submits Brief
on Instant Runoff Voting to Texas Attorney General
October
2002
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 [email protected].
The brief is also available in Microsoft Word format.
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.
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