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The Legality of Ranked-Choice Voting — California Law Review [1]

['California Law Review', 'Https']

Date: 2024-12

Introduction

In our era of hyperpolarized and toxic politics, political reformers are searching for changes to our electoral processes that would encourage a less divisive style of elections and governance. Reformers argue that among the most promising would be a shift to RCV. In RCV elections, voters rank the candidates from most to least favorite on their ballots. First-choice preferences are tallied and the candidate at the bottom is eliminated. If a voter’s first-choice preference is eliminated, their ballot is then allocated to their second choice, and the preferences are tallied again, sequentially eliminating the least popular candidates. In a single-office contest, this process usually continues until one candidate receives a majority of the votes or until only two candidates remain. Because RCV creates strong incentives for candidates to appeal beyond their base of “first-choice” support to voters who might still rank them second or third, RCV is believed to encourage greater coalition-building, less divisive campaigning, and a larger number of elected officials that appeal to a broader array of voters.

When given an opportunity to vote on RCV, voters increasingly choose to adopt it. In recent years, voters in several local governments (including major cities such as New York, Minneapolis, San Francisco, and Oakland) have enacted RCV into law,[3] with five more cities adopting RCV in 2020.[4] And in 2016, Maine became the first state in the nation to adopt RCV, by popular initiative, for statewide and federal elections, with Alaska following soon after in 2020.[5]

But RCV now faces an existential threat. In 2017, the Justices of Maine’s Supreme Judicial Court concluded in an advisory opinion that RCV could not be used to elect the governor or state representatives and senators.[6] Maine’s constitution requires those state offices to be elected “by a plurality of the votes.”[7] According to the Justices, RCV violated this provision by preventing a candidate “who receive[d] a plurality of the votes” at the first stage of the RCV process from being “declared the winner in that election.”[8]

Nearly 40 state constitutions have similar provisions requiring candidates to be elected with the “highest,” “greatest,” or “largest number of votes.”[9] These provisions govern a range of different local, state, and federal offices. Thus, if other states adopt the reasoning from the Maine Supreme Judicial Court, RCV could be held unconstitutional for thousands of offices nationwide unless voters can overcome the high hurdles that face constitutional amendment. The desire of voters and legislators in many states to respond to the dysfunctional state of American democracy with RCV will be stopped dead in its tracks.

This Article is the first to examine the history and purposes of these constitutional “plurality vote” provisions and analyze RCV under them.[10] Based on the text, historical context, and purposes of these provisions, we conclude that the Justices of Maine’s high court were wrong and that state courts should not construe these provisions to prohibit voters or legislators from adopting RCV for their elections.

Since the nation’s beginning, Americans have experimented with the best ways of structuring the democratic process to meet the values and concerns of their era. Whether those experiments have meant requiring parties to use primary elections to choose their nominees, or the best way to finance campaigns, or what policies are appropriate for determining how candidates become eligible to get on the ballot, we have chosen to structure our elections in a variety of ways as our conception of democracy has evolved. Those choices cannot, of course, violate constitutional rights, but absent that, states, local governments, and voters have had wide latitude to choose how they want to structure their election process in response to the changing needs and contexts of the times.

Whether one likes RCV as a matter of policy or not, legislatures and voters should be permitted to experiment with RCV should they choose to do so unless the unambiguous text of a constitutional provision stands in their way. This Article explains why the Maine Supreme Judicial Court decision is wrong, and why state constitutional plurality provisions should pose no obstacle to RCV.

Part I provides a brief background on single-choice voting (SCV) and RCV, both of which are balloting methods for measuring public support. Like all balloting methods—and election systems more generally—SCV and RCV each offer unique benefits and limitations. Just as we have experimented in the past with at-large or single-member district elections for Congress, state legislatures, and local governments, the trade-offs between SCV and RCV present a policy question for voters and legislators concerning how best to realize various democratic values and aims through the choice of election systems.

Part II introduces the two main types of state-level constitutional and statutory provisions that may present legal difficulties for RCV. Part II first explores the history, function, and purpose of “majority-threshold” requirements, which were incorporated into many early state constitutions. These majority thresholds provided that any popular election that did not identify a majority winner would be a nullity. In some states, this meant that runoff or new elections would have to be held repeatedly, ad infinitum, until a majority winner was identified. In other states, an election that failed to generate a majority-vote winner meant that the legislature would choose the officeholder.

Part II then describes the widespread move away from such requirements and towards “plurality” provisions during the populist democratic reform movement of the mid-nineteenth century. Plurality provisions were adopted to prevent such “no choice” elections from occurring and to ensure that a winner would always be identified by the voters through a single popular election. The purpose of these provisions was to end the need for repeat elections and to ensure that voters, rather than politicians, would decide every race.

Part III analyzes the legality and operation of RCV under both these plurality provisions and majority thresholds. Given that state and federal courts have uniformly upheld RCV against federal constitutional challenges thus far,[11] state constitutional challenges of this type pose the most significant legal threat to RCV’s continued expansion.

Our analysis concludes no legal conflict exists between these plurality vote provisions and RCV or between majority threshold provisions and RCV. A ranked-choice vote—like a single-choice vote—is simply a method for measuring popular support. Just as SCV is used to measure public support in states with plurality provisions and states with majority thresholds alike, so too can RCV be used in states that do or do not impose either threshold provision.

Part II.A takes a closer look at how state courts have analyzed RCV under state constitutional plurality provisions. We compare the conflicting decisions of two state high courts that have considered the issue thus far, Maine[12] and Massachusetts[13], and we conclude that the Massachusetts Supreme Judicial Court provides the more persuasive analysis.

Part II.B then examines the distinct and surprisingly intricate legal issues that arise for RCV under majority thresholds. Only two states, Vermont and Mississippi, have majority thresholds in their state constitutions today; each stemming from a different era and enacted to fulfill very different purposes.[14] Because RCV sequentially eliminates candidates, voters who do not rank all available candidates might see all of their preferences “exhausted” before the tabulation process is complete. In other words, the number of total votes cast in a race might be higher than the number of total votes received by the two candidates remaining in the final round of tabulation.

This poses an important question: in states that have majority-threshold requirements, does the candidate need to receive a majority of the total votes cast in the race to win or only a majority of the total votes received by the final two candidates? If the relevant denominator is “final votes received,”[15] the winner of an RCV race will always surpass the majority threshold as a matter of simple math. If, however, the relevant denominator is “total votes cast,” the winner of an RCV race might fall short of the majority threshold. Deciding what a “majority” threshold requires—and which denominator to apply—involves a close question of legal interpretation that can turn on fine distinctions in the text of the provisions at issue or their perceived purpose.

This issue has broad implications at the local, state, and national levels. In addition to the constitutional provisions in Mississippi and Vermont, many states impose majority thresholds by statute, which come into play when local governments adopt RCV. The issue is also increasingly relevant for presidential elections where commentators advocate for the use of RCV in selecting presidential electors.[16] Thus, the question of determining how RCV fits with legal provisions requiring the winner to receive a majority of votes cast, as well as with provisions requiring the winner receive only a “plurality of votes,” is an urgent matter.

This Article argues that RCV provides a constitutional method for identifying a “plurality” winner. RCV is also permissible under majority-threshold requirements. Although candidates can fall short of a majority threshold in an RCV election, that is also true in an SCV election. That result does not automatically render either method illegal or unconstitutional.

I. Background

Every step in the voting process is shaped by state regulation. From registration, to the design of the ballot, to the processes for recounts, choices must be made about the structure and form of the election and voting process. Most commonly, these choices are made through legislation, but they can also be reflected in state constitutions and in direct democratic processes, such as referenda or initiatives in the states that permit them.

For example, while the government-printed, secret ballot is a common feature of our election process today, voting was a rowdy and public affair up to and through the mid-nineteenth century. Candidates would ply voters with free whiskey,[17] and many voters took part in elections by voice vote: declaring their choice before all gathered or having no say at all.[18] Eventually, as political parties began to dominate, the parties themselves took on the task of handing out their own ballots, printed on colored paper—which made it easy for voters to choose the ballot they wanted but also enabled party figures to keep “tabs on who voted and how.”[19] Over time, however, the state-printed and regulated secret ballot emerged, which led to the system we use today: an official state ballot designed and regulated by state officials, according to state law, and cast in the privacy of the voting booth.

Particularly in light of this long history of constant reform and changing views about how best to structure the voting process, the Supreme Court has recognized the danger in over-constitutionalizing every electoral design choice. As the Court has rightly noted, if elections “are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes,”[20] then “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.”[21] This “respect for governmental choices in running elections” that courts owe to legislators “has particular force where . . . the challenge is to an electoral system.”[22] As views about fair, accessible, and appropriate democratic processes have shifted over time, courts have generally given the political process wide latitude to adopt different approaches to structuring the election process. Although the Constitution puts boundaries on those choices, such as the prohibition on malapportioned legislative districts, policymakers have a great deal of discretion to decide how best to structure the electoral and voting process within those constraints.

The single-choice vote is one particularly longstanding feature of American elections. SCV widely used in the United States, Canada, and a number of other countries that inherited it from the United Kingdom.[23] Also known as plurality voting, the simple plurality system, or first-past-the-post,[24] SCV permits the voter to select a single candidate for an office.[25] These votes are tabulated by adding up all the votes for each candidate, and the candidate who receives the largest number of single-choice votes wins.[26]

Like every electoral system, SCV has positive and negative qualities. Among its merits is its simplicity: the system is easy for voters to use, and the tabulation process is easy for voters to understand.[27] SCV also offers finality: voters cast their ballots and the candidate with the most votes wins. Occasionally, there might be recounts or even election-contest litigation, but even so, the winner is identified in a single election.

But with these benefits come a number of constraints. First, in any election with more than two candidates, an SCV system can end up electing a candidate that a majority of voters oppose—an arguably perverse outcome for a democratic election system.[28] This can result from “splitting” or “spoiling.”

“Splitting” (or “vote-splitting”) refers to situations in which two candidates with significant support from voters divide that support, allowing a third candidate to prevail.[29] For example, two conservative candidates might receive 30 percent each, allowing a liberal candidate to prevail with 40 percent of the vote. The liberal candidate might have lost in a head-to-head race against either of the two conservative candidates, but because those two candidates “split” the vote, the liberal candidate can win despite being opposed by 60 percent of the electorate.

“Spoiling” involves a similar dynamic but occurs when a minor-party candidate siphons enough votes away from a major-party candidate to throw the race to the other major-party candidate.[30] Take the 2016 presidential election, for example. In three states, Jill Stein (the Green Party candidate) received a vote share larger than Donald Trump’s margin of victory over Hillary Clinton.[31] In six other states, Gary Johnson (the Libertarian candidate) received a vote share larger than Clinton’s margin of victory over Trump.[32] In still other states, the combined third-party vote shares were larger than the margin between the major-party candidates.[33] All of this raises a question: if Clinton and Trump faced off in head-to-head matchups in these states, who would have prevailed? In the 2020 presidential election, the share of the vote earned by third-party candidates in pivotal swing states (such as Georgia, Wisconsin, and Arizona) similarly eclipsed the difference in vote share between Biden and Trump.[34] In races where third-party and fourth-party candidates receive such a small vote share, these candidates are referred to as “spoilers”—though third-party candidates understandably resist this terminology.[35]

This brings us to SCV’s second weakness: in an attempt to avoid vote-splitting or spoilers, voters using SCV might need to vote strategically rather than voting their true preference.[36] If a voter’s favorite candidate does not have a realistic chance of prevailing, that voter will need to vote for a less preferred candidate to avoid “wasting” their vote.[37] In fact, voters are often forced to vote for the candidate they perceive as having the best odds of defeating their least favorite candidate. For this strategy to be successful, voters must correctly anticipate how other voters are likely to vote. Needless to say, this does not always work. Any SCV election with more than two candidates can fail to identify the candidate with majority support—and SCV elections are a particularly poor way of measuring which candidate has the most support when several candidates crowd the field. Primary elections often involve several candidates. And as ballot-access laws have made it easier for candidates to get on the general election ballot, the general election field can also easily involve more than two candidates.

One potential response to these constraints that has been adopted historically and remains in some states today is to pair the SCV election with a majority-threshold requirement: if no candidate receives an “absolute majority” (50%+1) of single-choice votes at the initial election, no winner is named and a new process is triggered.[38] For example, a “runoff”—a second, separate SCV election after the general election—may occur between the top two vote-getters from the first election.[39] However, this strategy introduces its own trade-offs: the winner remains unknown for a longer period of time (undermining the benefits of finality), the voters and the jurisdiction must incur all the costs and inconvenience that a second election entails, and voter turnout will likely decrease substantially between the first and second election (undercutting the democratic imprimatur of the eventual winner’s “majority” victory).[40]

All of these trade-offs bring us to a well-known but deeply uncomfortable fact: no perfect electoral system exists.[41] As William Riker once observed, “social choice depends not simply on the wills of individuals, but also on the method used to summarize these wills.”[42] Every system for aggregating votes involves normative judgments. In what is now known as “Arrow’s Theorem,” Kenneth Arrow proved mathematically that no election system can satisfy even a handful of basic criteria that one would expect any democratic system to have.[43]

Because no election system can serve all democratic values and interests, the choice among different approaches, rules, and conceptions of “representation” and “fairness” is inherently political.[44] A polity can choose one method over another, or different methods over time, depending on how the various democratic and policy goals behind the design of an election system are evaluated. And increasingly, many voters appear to be dissatisfied with the way that our elections function in the United States today.[45]

One alternative to the single-choice system is RCV.[46] Developed in the mid-1800s,[47] RCV—also known as “instant-runoff voting,” “preferential voting,” or the “alternative vote”[48]—allows voters to rank the candidates running for office in order of preference rather than limiting voters to a single choice.[49] Unlike the SCV tabulation process (which aggregates and assigns ballots according to the single candidate selected on the ballot), the RCV tabulation proceeds in rounds (though with computer technology today, these “rounds” can occur almost instantaneously). Ballots are initially counted based on voters’ first preferences.[50] The candidate with the least number of first-choice rankings is eliminated, and the vote on those ballots is then assigned to the candidate ranked second on those ballots.[51] This process is repeated until a candidate either has a majority of votes or until only two candidates remain.[52]

By allowing voters to convey a richer, more nuanced, and more complete articulation of who they would prefer, ranked-choice votes offer several benefits over single-choice votes. RCV reduces the dangers of vote-splitting and the impact of spoilers; increases the ability of voters to honestly convey their preferences; increases the likelihood that a candidate is elected with the support of a majority; and allows the candidate with the most widespread support to be identified in a single election.[53]

Supporters of RCV also claim that it exerts a greater moderating influence on the tenor and tone of campaigns because RCV incentivizes the building of broader coalitions than does SCV.[54] Just as a candidate in a primary election might avoid attacking their co-partisans too severely for fear of alienating voters that they will need in the general election, RCV is said to incentivize candidates to run more positive, broad-based general-election campaigns to earn the “second-choice” support of voters they might otherwise write off in an SCV election.[55]

This is not to say that RCV will always encourage or incentivize ideological moderation. Whether a progressive, moderate, or conservative candidate wins is a function of coalition-building, and “middle-of-the-road” policies will not always be the best way to create a majority coalition. In fact, in elections in which a spoiler, minor-party candidate would take enough votes away from an ideologically extreme major-party candidate to give the race to a moderate candidate from the other major party, the use of RCV might bolster the prospects of that more extreme candidate. RCV will eliminate the spoiler candidate and if the second choices on those ballots then go to the more extreme major-party candidate, that candidate would end up getting elected.

As with any electoral system, there are potential costs of RCV to consider along with its potential benefits.[56] For one, RCV ballots and the RCV tabulation process are more complex than SCV ballots and the SCV tabulation process.[57] If voters do not understand how to complete a ranked-choice ballot, they may accidentally forfeit the ability for their vote to impact each round of the tabulation process or, worse, they may accidentally invalidate their ballot altogether by marking multiple candidates first. [58] And while the concept of rank-ordering one’s preferences is undoubtedly intuitive, the greater the number of preferences one wishes to rank, the greater the information load on the voter.[59]

Related to this issue are concerns about “ballot exhaustion.”[60] Ballot exhaustion refers to when all of the candidates ranked by a voter have been eliminated and the ballot becomes “inactive”; i.e., it is no longer reassigned as tabulation continues.[61] Ballot exhaustion can occur in two ways.

First, a voter might simply decline to make use of all preference rankings available on the ballot. If a voter ranks their first-choice candidate and casts the ballot without filling in any other preference rankings, then the ballot will become inactive once the only candidate on that ballot is eliminated.

Second, the ballot itself may be designed to only permit the voter a certain number of rankings. If a ballot only allows voters to rank their top three preferences and there are seven candidates vying for the same office, then a ballot might still become inactive. For example, if a voter uses all three preference rankings available and all three of their selections are eliminated, their ballot may become inactive before all the rounds of tabulation are complete.

The notion of inactive ballots appearing to fall out of the tabulation process over successive rounds may strike some as concerning at first glance, but inactive ballots are perhaps most usefully analogized to casting a vote for a losing candidate in an SCV election.[62] In SCV elections, ballots cast for losing candidates are considered “wasted votes.”[63] These wasted votes—like RCV’s inactive votes—are still counted in the tabulation process; they simply do not go towards electing a winning candidate.[64]

In fact, RCV produces fewer wasted votes than SCV. Because votes are transferrable, votes that might otherwise be cast for losing candidates are reassigned to candidates with a greater chance of winning.[65] Thus, more voters have a greater say in the ultimate outcome of the race in RCV elections. This ability to minimize “wasted” votes has earned transferrable voting systems—such as RCV—support from notable democratic theorists, such as John Stuart Mill.[66]

Like every election system, RCV offers “a menu of benefits and limitations.”[67] In the absence of any specific constitutional restriction, the decision to adopt and implement one system over another belongs to policymakers.[68] Moreover, when changes to the mechanics of elections emerge from direct democracy means, such as voter initiatives, rather than through legislation, there is less concern that political insiders might be manipulating the ground-rules of election to serve their own political self-interests.

As the New York Court of Appeals once observed, “If the people . . . want to try [a new] system, make the experiment, and have voted to do so, [courts] should be very slow in determining that the act is unconstitutional, until we can put our finger upon the very provisions of the Constitution which prohibit it.”[69]

But for RCV, one provision common to numerous state constitutions has started to raise questions: a provision requiring that certain offices be elected “by a plurality of the votes.” In the next Section, we explore these constitutional provisions.

II. The History of Majority Thresholds & Plurality Provisions in State Constitutional Law

The constitutions of thirty-nine states and Puerto Rico include some form of a “plurality” provision.[70] Such provisions state that the candidate who receives “the highest number of votes,”[71] “the largest number of votes,”[72] “the greatest number of votes,”[73] or “a plurality of the votes”[74] at the general election shall be elected.

These provisions stand for a very simple, fundamental, and unambiguous proposition: the candidate who receives the most votes in a popular balloting should win the relevant office.[75] Why explicitly announce such an obvious principle? Because for much of the early history of American democracy, in the eighteenth and nineteenth centuries, that principle was by no means obvious.

As Part II.A describes, several states had a decidedly strict conception of what the democratic principle of “majority rule” meant in our nation’s early years. If no candidate received an absolute majority of votes at a popular balloting (50%+1), that election was considered a failure and no candidate was elected.[76] These were called “no-choice elections” or “non-elections.”[77]

Such “majority threshold” requirements were a relatively common feature across early state constitutions. Failure of the popular balloting process triggered a contingency—some other method of candidate selection besides the initial popular election. For example, if a popular balloting for governor failed to produce “an election,” the governor might be selected by the legislature instead.[78]

As Part II.B explains, plurality provisions were then enacted in many states as a response to replace strict majority-threshold requirements once the latter came to be viewed as excessively demanding. In addition, many other plurality provisions were adopted during the progressive movement of the mid-nineteenth century. These plurality provisions were implemented to ensure that a victor would be identified through a single popular election (or, in the parlance of the day, that every balloting would result in “an election”).[79]

These provisions did not positively impose any particular kind of election system. Indeed, most voters and legislators at the time were likely unaware of alternative election systems.[80] Instead, the provisions prevented the legislature from imposing any kind of threshold that would preclude the candidate with the most votes at the conclusion of a single popular election from being elected. In other words, the plurality provision foreclosed the legislature from adopting any arrangement that could result in a complete non-election. Whatever system the state used, the candidate who received “the highest number of votes” or “a plurality of the votes” in a single popular balloting was to be the winner.

A. Majority Thresholds

When states adopted majority-threshold provisions in their early constitutions, these provisions reflected a belief that a bedrock principle of democratic government was that “the majority should rule.”[81] But as experience with democracy developed, Americans learned that these “majorities” often existed more in theory than in practice.[82]

For some failed races, the contingency triggered was a new election—and officials continued to hold new elections until one candidate received an absolute majority.[83] For example, Maine’s original 1820 constitution required the election of state representatives “by a majority of all the votes.”[84] “[I]n case no person shall have a majority of votes,” the constitution required officials to “notify another meeting, and the same proceedings shall be had at every future meeting until an election shall have been effected.”[85]

The drawbacks of this approach soon became obvious. In Massachusetts, for example, one office took twelve ballotings before a candidate was elected.[86] This process sometimes turned democracy completely on its head: at least one of Massachusetts’s congressional seats remained vacant for an entire two-year term because voters repeatedly failed to make “an election.”[87] In Vermont, meanwhile, one congressional seat remained contested over the course of ten separate runoff elections—until one of the candidates died.[88]

Moreover, as detractors of the majority requirement were quick to point out, the candidate who received a “majority” of votes at the tenth or twelfth runoff election would often prevail with fewer votes than the candidate who had received a plurality of votes at the first election.[89] The process of repeatedly holding new elections did not increase the winning candidate’s level of support in the electorate (by, say, convincing voters in the first contest to change their minds in the second one); instead, the process simply shrunk the electorate (with one candidate’s voters eventually tiring out the others’ as voter turnout dwindled over time).[90]

For other races—such as for governor—a failed contest might be sent to the legislative branch.[91] Over time, though, this came to be seen as inconsistent with the “grand principle” of majority rule. The relevant “majority” in such case was no longer of the official’s own constituents, but of the legislature itself.[92] As those who opposed the majority-threshold requirement pointed out about this default policy, the question in such situations was no longer how a candidate would gain the support of a majority of voters, but who should select the winner when a majority of voters did not coalesce around a single candidate.[93]

As soon became evident, leaving the decision up to the political branches also raised the risk of partisan intrigue.[94] In Rhode Island, voters endured four no-choice elections for governor in five years (1889–1893) due to the persistent presence of a third party (the Prohibition Party).[95] In the gubernatorial elections of 1889, 1890, and 1891, the Democratic candidate received more votes than the Republican candidate but was only selected over his Republican opponent by the legislature once (1890).[96] Then, following another no-choice election in 1893, the backup contingency failed as well, and no governor was selected after the Republican Senate and Democratic House reached an impasse.[97] Instead, the governor elected in 1892 simply held over in office for the 1893 term.[98] At the conclusion of this farcical string of non-elections, voters overwhelmingly adopted Rhode Island’s plurality provision by a margin of 26,703 to 3,331—the “most decisive ratification of an amendment in Rhode Island’s constitutional history.”[99]

As Rhode Island’s experience reflects, many eventually came to believe that majority-threshold requirements frustrated the popular will more than they served it. Rather than simply repealing these threshold requirements, states often replaced them with explicit constitutional plurality provisions to ensure that future legislatures could not impose such thresholds by statute.[100]

Today, only two states still have a constitutional majority threshold for statewide political office:[101] Vermont[102] and Mississippi.[103] (Some states, such as Georgia, still employ majority thresholds as a matter of statutory law, even where the provision has been removed from the state constitution.)[104] The provenances of the two remaining constitutional provisions in Vermont and Mississippi, however, are quite distinct.

Vermont’s original 1777 constitution contained the same majority threshold that is still in place today.[105] Indeed, that provision remains the only holdover to endure the history described above. To be sure, candidates who receive the plurality (but not the majority) of votes in Vermont today are typically selected by the legislature as a matter of course.[106] But there have been rare occasions in recent history when that has not held true. For example, in 1976 the Democratic candidate for Vermont’s Lieutenant Governor won the highest number of votes but failed to clear the 50 percent threshold.[107] Rather than selecting him for the office, the Republican-controlled legislature—“perhaps motivated by rumors that [the Democrat] would soon be indicted for insurance fraud”—selected the Republican candidate for office instead.[108]

Mississippi’s original 1817 constitution, on the other hand, contained a plurality provision.[109] That provision remained in place following constitutional conventions in 1832 and 1868.[110] Contrary to the movement everywhere else, Mississippi in 1890 abandoned its plurality provision and adopted a majority-threshold requirement (along with an independent “electoral majority” requirement).[111] This majority threshold was adopted during the “Redemption” era, in an effort to undo Reconstruction, and was part of the State’s new 1890 constitution, the primary purpose of which was to institutionalize the suppression of the Black vote.[112] Mississippi was the first state to call a constitutional convention to adopt measures aimed at circumventing the Fifteenth Amendment’s protection of Black voting rights—an approach that other southern states would soon follow.[113]

After Mississippi’s electoral-vote provision was challenged under the Fourteenth Amendment to the U.S. Constitution,[114] a federal court stayed the case to give the legislature the opportunity “to address whether the challenged provisions of the Mississippi Constitution should be amended.”[115] The legislature took up this opportunity, and voters ratified a constitutional amendment in November 2020.[116] The new provision abandons the electoral-vote requirement while retaining a majority threshold. And rather than triggering a decision by the legislature, the failure to achieve a majority now triggers a runoff election.

While such majority thresholds are not inherently racially invidious, many that were adopted in the late nineteenth century (including statutory thresholds) have their “roots in nineteenth century southern white racism.”[117] When voting is extremely polarized by race in majority-white jurisdictions, majority thresholds can create “a considerable obstacle to black, but not white, office holding” by providing an opportunity for “fragmented white voters [to] regroup behind the highest white vote getter and elect that person to office.”[118]

Outside of the South, however, the trend towards plurality provisions continued largely unabated, especially as the union expanded westward with the admission of new states.

B. Plurality Provisions

Following the election of Andrew Jackson in 1828 and continuing throughout the mid-nineteenth century, political populism and a uniquely direct, participatory vision of democratic reform swept the nation.[119] Not only did states with majority thresholds start abandoning these requirements in favor of plurality provisions (given the problems noted above),[120] but states also expanded the types of offices that became elective and the number of elected offices altogether; this era created the only elected judges and prosecutors in the world, a legacy still with us.[121] In addition, this era saw the widespread adoption of plurality provisions to ensure that popular balloting determined election outcomes. Across multiple conventions and across generations, the purpose behind these plurality provisions appears consistent and clear: the candidate with the most popular support should win and voters should select that candidate through a single election.

When Virginia first contemplated moving to an elected governorship during its constitutional convention of 1829 to 1830,[122] for example, questions quickly arose whether a candidate ought to receive a majority of votes to be validly elected or whether a plurality would suffice.[123] One state senator—ridiculing his neighbors to the north—observed: “I suppose we are to adopt the New England practice, and turn [candidates] back to the people till they shall give one the majority. But in the meanwhile, the period will have elapsed for which [they were] to have served.”[124]

As more states changed their constitutions to substitute plurality provisions for majority requirements, many newly admitted states also decided from the outset to include plurality—rather than majority—provisions.[125] Indeed, in many constitutional conventions, the decision to include (or move to) a plurality provision appears to have been uncontroversial and even unnoteworthy.[126] Numerous state constitutional commentaries fail to offer any exposition at all of these plurality provisions.[127]

By the time Alaska held its constitutional convention in 1956, the proposition that “the person with the most votes should win” appeared so obvious that at least one delegate considered the plurality-provision language to be “meaningless” at best and confusing at worst.[128] Objecting to the language that “[t]he person receiving the greatest number of votes shall be the governor,” Delegate George Sundborg moved to strike it, worrying that, “if it means anything, [the provision] means that the person running at that election who gets the greatest number of votes, no matter what he is running for, shall be the governor. . . . It might be the candidate for the United States Senate or it might be one of the legislators.”[129]

Delegate Katherine Nordale responded, clarifying the reason such a provision was thought necessary: “[I]f you leave this to the legislature they could say that the candidate [must] receiv[e] a majority of the votes cast, and it is conceivable that there may be three tickets in the field for governor at some future time[.]”[130] Nordale then asked, “why allow the possibility of requiring a majority of the votes cast to elect the governor?”[131] Sundborg’s proposal to strike the plurality provision failed.[132]

While such constitutional debates and historical commentaries are limited, those that exist point almost[133] uniformly to three justifications for plurality provisions, all of which relate to the problem of no-choice elections caused by the interplay of majority thresholds and single-choice voting:

encouraging finality by determining the result in one election;[134]

enhancing administrative efficiency, economy, and ease;[135] and

reducing partisan control over outcomes by removing contingencies and ensuring that the popular election itself determines the result.[136]

Few judicial decisions directly address these plurality provisions because the provisions generate so little controversy.[137] Those decisions that do interpret these provisions confirm that these three purposes (and no others) drove their enactment.[138] Distilling this history to its essence, the Indiana Supreme Court observed (with respect to an earlier version of its state constitution)[139] that the phrase “highest number of votes” reflected the framers’ belief “that the public interest would be best served by limiting the popular balloting for the [office] to one election.”[140]

III. Ranked-Choice Voting & the Plurality/Majority Debate

As Part II demonstrates, the debate over majority versus plurality provisions boils down to one key question: “What threshold level of support, a plurality or a majority, should a candidate have to receive before the election can be treated as having validly selected a winner?” Identifying this core question has important implications for emerging debates over the constitutionality of RCV—and reveals one part of this debate to be particularly misguided.

As RCV adoption spreads, a question often comes up: “Is RCV a ‘plurality’ system or a ‘majority’ system?”[141] The assumption is that if RCV is a “plurality” system, then it cannot be constitutional in “majority” states, whereas, if RCV is a “majority” system, then it cannot be constitutional in “plurality” states.

This framing fundamentally misunderstands the purpose and function of the plurality and majority provisions discussed above. Every election must have a threshold requirement at one level or another, but this debate sheds no light—and was not designed to—on the debate over what balloting method should be used. The former asks what precise level of popular support must be attained; the latter asks how the level of popular support should be measured.

This disconnect can be illustrated with a parallel question regarding our more familiar form of voting: “Is single­-choice voting a ‘plurality’ system or a ‘majority’ system?” The answer is both—or, perhaps, neither.[142] SCV is a balloting method. It has been used in states that have majority-threshold requirements, and it has been used in states that have plurality provisions. Whether a state’s constitution permits a plurality of votes to win an election or requires a majority of votes to win an election is a threshold question, the answer to which says nothing about how that level of support should be ascertained. That is, it says nothing about whether that state’s electoral system is to be SCV, RCV, or another balloting method. A candidate who receives the most votes in an SCV race might receive 52 percent or 48 percent of the vote. The candidate who receives 52 percent would win in both a “plurality state” and a “majority state.” The candidate who receives 48 percent would win in a “plurality state” but might have the contest tossed to the political branches in a “majority state.” In all of these scenarios, however, the states still employ SCV as the method for measuring that candidate’s support.

This distinction between the legal threshold for election and the balloting method requires careful attention because terminology in this area can be misleading. SCV is colloquially known as “plurality voting.”[143] But as just explained, this “plurality-voting system” might allow a plurality of votes to elect a candidate or might require a majority of votes to elect a candidate, depending on the relevant constitutional threshold.[144]

Below we examine the constitutionality and the application of RCV under plurality provisions and majority-threshold requirements. Under both types of provisions, RCV provides a constitutional balloting method.[145]

Part III.A explores whether a candidate who prevails under RCV should be understood to receive at least a “plurality of the votes,” thereby complying with a state’s constitutional plurality provision. Based on the text, history, and purpose of such provisions, we conclude the best answer is yes. Each voter ranks their choices on a single ballot, each ballot can only ultimately count towards the election of a single candidate, and the candidate who receives the most votes under the system wins in a single election. Plurality provisions demand nothing more.

Next, we compare two conflicting opinions out of Massachusetts and Maine—the only two majority opinions thus far to meaningfully discuss the constitutionality of RCV under a state plurality provision.[146] The first suggests that preferential voting is “in accordance with the principle of plurality voting,”[147] whereas the second advises that preferential voting “is not simply another method of carrying out the Constitution’s requirement of a plurality.”[148] As we show, the latter opinion fails to provide any support for its interpretation and appears to be based on little more than an implicit, unexamined assumption that a rank-ordering of preferences does not qualify as a “vote,” as that term is used in the constitution.

Part III.B turns to the other type of election threshold found in state constitutions and state law, which requires candidates to receive a majority of the votes to be elected. Here, too, we conclude that RCV is generally lawful under such provisions.

Majority thresholds do, however, pose a different interpretive question that presents a closer call: whether a candidate who prevails under RCV should always be understood to have received a “majority of the votes,” thereby clearing the threshold necessary to avoid a “no-choice” election. Depending on the text of the provision and the method of implementation, RCV might fail to produce a constitutionally sufficient “majority.” As under SCV, this failure will trigger whatever contingency is in place, be it a separate runoff election or a decision by the state legislature.

Next, we discuss how the interpretation of this standard affects local elections governed by state law. Many state election codes impose majority thresholds for local offices. Thus, the interpretation of these statutory thresholds has profound implications for balloting method experimentation at the local level.

Finally, we turn to the unique context of presidential elections and the possible use of RCV there. Some observers have proposed reforming the electoral college by pairing RCV with majority thresholds in each state to prevent a presidential candidate who garners only a plurality of votes within a state from winning all of that state’s electoral votes.

Our analysis offers important insights for these reformers. While RCV may seem a natural complement to majority-threshold provisions, our analysis suggests that the particular phrasing of such provisions and the particular method for implementing RCV must be carefully drawn to avoid unintended but potentially dramatic consequences.

A. Plurality Provisions & Ranked-Choice Voting

Both the purpose and text of plurality provisions comfortably encompass RCV. To start, the central, consistent purpose behind these provisions was to ensure that the selection of a candidate would always be determined through a single, popular election.[149] As noted above, this commitment to selection through popular election was, itself, animated by several supporting justifications: encouraging finality, avoiding vacancies, and ensuring the seating of officeholders without delay; enhancing administrative efficiency, economy, and ease; and guaranteeing that voters—not politicians—held ultimate control over the outcome.[150]

RCV fully satisfies each of these purposes. The victor wins by popular selection, and a single election determines the result. Voters submit one ballot—one input—and the balloting identifies a winner. No triggering threshold renders the election a nullity, prevents the selection of a winner, or activates any contingency beyond the election itself. Voters need not take any further actions or “next steps” after the ballot-counting is complete.

Nor does RCV conflict with the plain language of state plurality provisions. The text of every such provision refers to a numerical concept (“plurality of votes”) rather than a balloting method (“plurality voting”).[151] Indeed, the most common phrasing of such provisions indicates that the candidate with “the highest number of votes” shall be elected.[152] And no historical evidence suggests that the phrase “a plurality of votes” was understood to mean anything other than “the highest number of votes.”[153] Dictionaries from the nineteenth and twentieth centuries, when many of these provisions were adopted, likewise reflect that numerical concept.[154] Only one court—the Maine Supreme Judicial Court—appears to have confused this numerical concept with a type of election system or balloting method.[155]

In fact, the Maine Justices’ advisory opinion reveals that the primary question to consider when interpreting a plurality provision is not the meaning of the word “plurality,” “highest,” “largest,” or “greatest”—rather, it is the meaning of the word “vote.” If one candidate has the highest numerator in the first round of tabulation and another candidate has the highest numerator in the final round of tabulation, which candidate has received the most “votes”?

As with any voting rule, the RCV system itself defines what constitutes the “vote” that the system counts. The system takes the preferences voters have expressed for candidates and translates them into the “votes” for the candidates once the tabulation process is completed. The candidate who has received the most votes then wins the seat. Both historically and today, the word “vote,” especially when used in constitutional text, is easily understood to include a ranked-choice vote. In 1880, for example, Webster defined “vote” to mean “[w]ish, choice, or opinion, of a person or body of persons, expressed in some received and authorized way.”[156] A later edition defined a vote as “the formal expression of a wish, will, or choice . . . in electing a person to office or in passing laws.”[157] Black’s Law Dictionary employs a similarly broad conception, defining a vote as “the expression of one’s preference or opinion by ballot, show of hands, or other type of communication.”[158] In other words, a “vote” is an official expression of public preference that is itself shaped and constructed by the governing law. And—as Part I discusses—that shape is contestable and develops over time based on the policy preferences of the era.[159]

To be sure, a ranked-choice vote conveys greater nuance and information than a single-choice vote, but it still reflects a single input that is then counted in an authorized manner to produce an aggregate measure of popular support.

This distinction—between multiple inputs and a single input reflecting multiple contingent choices—is critical. One might object that every ranking should be considered a separate vote,[160] but this interpretation is neither obvious nor necessary. In traditional runoff elections, each round of voting produces an aggregate result and voters are then faced with a new, separate decisional point where they must submit a new input based on (and with the knowledge of) the first election’s aggregate result. This is, notably, not the case with RCV.

Under RCV, voters submit a single input at a single point in time and the tabulation process produces a final aggregate result. Thus, while some contend that RCV simulates runoff elections, it is a distinct system with unique benefits and limitations. Indeed, one common policy objection to RCV is that voters cannot technically know ex ante which candidate will ultimately receive their vote[161]—a consequence of voters only having a single input at a single point in time.

Only after the final stage in the tabulation process is completed does the voter’s “vote” become determined and legally effective. Because a voter’s full ranking is their “vote” (rather than any singular choice within that ranking) one cannot determine which candidate has received the most “votes” in an RCV election until the tabulation process concludes and all votes have been assigned. A candidate who has the most “first-choices” in the initial round of an RCV tabulation has not received the “most votes” any more than a candidate who leads in an SCV tabulation with only 27 percent of precincts reporting. If the process for counting the votes is not complete, one cannot ascertain who has “the most votes.” A state RCV law could make this even clearer if that law simply said that voters should rank-order their “choices” or “preferences,” and the voter’s “vote” shall be determined only after the rank-choice process of tabulation is completed. Indeed, this phrasing is almost exactly how the Maine law was written, even though the Maine court did not pay close attention to the text of the law.[162]

Two opinions—one from Massachusetts and one from Maine—demonstrate how this key question of vote-definition can be determinative.

1. Massachusetts

In 1940, the City of Cambridge adopted a multimember preferential voting system for its municipal elections.[163] Under this system, “each voter, though entitled to have only a vote for one candidate counted, [was] entitled to express as many relative choices or preferences as he [saw] fit.”[164] If his vote was not counted “for the candidate of his first choice,” it would be “counted for another candidate for whom he has expressed a choice, in the order of preference shown by him upon his ballot.”[165]

In Moore v. Election Commissioners of Cambridge, a resident and voter of Cambridge challenged the election plan on a number of state and federal constitutional grounds.[166] Omitted from this list was a challenge under Article 14 of Massachusetts’s constitution, which provides that in “all elections of civil officers by the people of this commonwealth, whose election is provided for by the constitution, the person having the highest number of votes shall be deemed and declared to be elected.”[167] As the court noted, a municipal councilmember “is not an officer ‘whose election is provided for by the constitution’”—as such, the state’s “plurality provision” simply did not apply.[168]

Nonetheless, the court explained in extensive dicta why a preferential voting system “cannot be declared unconstitutional on the ground that it is in conflict with ordinary principles of plurality voting.”[169] Writing for the court, the Chief Justice observed that the “candidates receiving the largest numbers of effective votes counted in accordance with the plan are elected, as would be true in ordinary plurality voting.”[170]

The design and operation of the system itself were vital to this understanding. Under a preferential voting system, “no voter can cast more than one effective vote, even though he has the privilege of expressing preferences as to the candidate for whom his vote shall be effective when it is demonstrated that it will not be effective for a candidate for whom he has expressed a greater preference.”[171]

As the court recognized, a ranked-choice “vote” provides a voter’s preferences, and “[that] vote is counted in accordance with the will of the voter.”[172] The candidate for whom that vote is ultimately “effective” cannot be determined until the round-by-round counting process has run its course. “The expression of preferences made by the voters upon the ballots shows the relative order in which they wish their choices to be given effect.”[173] And while, “[o]bviously, it is reasonable to give effect where possible to the first choices of the voters,”[174] the voter’s “vote” is not limited to their “first-choice preference” alone. In the court’s view, that would defeat the purpose of a ranked-choice voting system and, in effect, revert to a single-choice voting system.

The court also took seriously the limited scope of the judicial role. As the court observed, “We must always be careful in approaching a constitutional question dealing with principles of government, not to be influenced by old and familiar habits, or permit custom to warp our judgment. We must not shudder every time a change is proposed.”[175]

That ranked-choice ballots convey more information than single-choice ballots does not mean they represent multiple votes. The voter provides a single input rather than providing multiple inputs across multiple points in time (as in a traditional runoff). Thus, the fact that ranked-choice tabulation involves a series of rounds to ascertain how many votes each candidate ultimately receives does not mean that ranked-choice voting is the same as a series of elections.

As the Massachusetts Supreme Judicial Court would reiterate in a later decision, preferential voting “seeks more accurately to reflect voter sentiment [and] . . . ‘to enlarge the possibility of a voter’s being represented . . . by giving [the voter] an opportunity to express more than one preference among candidates.’”[176] Voters cast a single vote in a single election in a way that allows them to express a fuller picture of their candidate preferences.

Because the candidate who receives the most votes—whether a plurality or majority—at the end of ranked-choice balloting is elected, Massachusetts’s highest court concluded that preferential voting is fully “in accordance with the principle of plurality voting.”[177] Cambridge has been using RCV ever since.

2. Maine

In their recent advisory opinion regarding RCV and Maine’s plurality provision, the Justices of the Maine Supreme Judicial Court arrived at the opposite conclusion.[178] In 2017, the Justices advised that RCV “is not simply another method of carrying out the Constitutional requirement of a plurality” because it would “prevent[] the recognition of the winning candidate when the first plurality is identified.”[179] This decision not only failed on its own terms (as a purportedly formal exercise in constitutional interpretation based on the text and purposes of the provision), but it also failed to offer any broader normative account to situate or explain how the Justices arrived at their conclusion.

Before we examine the Justices’ opinion, however, a bit of history sets the stage. In Maine’s original 1820 constitution, state representatives, state senators, and the governor were all elected by “a majority of all the votes” cast.[180] If no candidate garnered a majority, the balloting failed, which triggered a contingency option.[181] For state representatives, this meant holding new elections until a candidate won by a majority.[182] For state senators and the governor, the contest was tossed to the political branches for resolution.[183]

As Part II discussed, such arrangements often led to frustration, discord, instability, and partisan intrigue—and Maine was no different. After a series of failed elections, the majority threshold for state representative was amended in 1847 to provide for the election of the candidate who received “the highest number of votes.”[184] The threshold for state senators was changed from “majority” to “plurality” in 1875. But the majority threshold remained in place for governor. And that majority-vote requirement nearly caused the state to devolve into civil war.[185]

In 1878, the failure of any candidate for governor to win a majority of the votes triggered the state’s default provision, under which the legislature then chose the governor.[186] The Democratic candidate was seated by the legislature despite the Republican earning more votes.[187] In the next election the following year (Maine held gubernatorial elections every year at the time), that same sitting Democratic governor then made the unusual and controversial decision to act as an election-returns board, throwing out numerous election returns on technicalities.[188] While initial returns from the 1879 election appeared to give Republicans legislative majorities in both the Senate and the House, the Democratic governor’s “revised” returns gave Fusionist candidates (Democrats and Greenbacks) majorities in both chambers instead.[189]

With no majority winner for governor in 1879 and “rival legislatures” each forming and claiming the right to choose the new acting governor, the entire state government soon came to the brink of collapse.[190] With two days left in his term, the sitting governor appointed General Joshua Chamberlain as commander of the state militia and ordered him to “protect the public property and institutions of the State until my successor is duly qualified.”[191] Chamberlain—a former four-term governor of Maine himself—was a widely known and respected icon of the Civil War.[192] Only through Chamberlain’s steady leadership did the state avoid outright war and eventually return to order.[193]

In 1880, Maine amended its constitution to remove the majority-threshold requirement and allow its governor to be elected by a “plurality of all of the votes.”[194] With the governor now also selected by a plurality of the votes, the same voting rule now applied to all three parts of Maine’s government. For the next 135 years, these provisions remained largely unanalyzed and uninterpreted.[195]

In 2015, that changed. Mainers delivered more than 70,000 signatures to the Secretary of State to put RCV on the general-election ballot as a citizen-initiated state statute.[196] At the November 2016 election, Mainers passed the legislation with 52.12% of the vote, implementing RCV for general and primary elections for the offices of U.S. Senator, U.S. Representative, State Senator, State Representative, and Governor.[197]

The Act, however, faced challenges both before and after its success at the polls. Before the November 2016 election, Maine’s Attorney General issued an opinion concluding that the proposal conflicted with the constitutional requirement that winners be determined by “a plurality” of the votes.[198] Because the Act “require[d] additional rounds of counting if no candidate receives a majority in the first tally,” the Attorney General asserted that the Act improperly prevented the candidate who “receive[s] a plurality based on the initial tally” from being declared the winner.[199]

This objection did not fade after voters enacted RCV. In early 2017, the Maine Senate requested from the Maine Supreme Judicial Court an advisory opinion addressing whether the Act violated the state constitution, including the constitution’s “plurality of the votes” provisions.[200] By their terms, these provisions applied to general elections for the offices of State Senator, State Representative, and Governor, but not to federal offices or primary elections.[201]

On May 23, 2017, the Justices issued a unanimous advisory opinion, stating that the Act conflicted with the state constitution’s “plurality of the votes” provisions.[202] Although the opinion was only advisory,[203] it set in motion a series of legislative decisions, legal challenges, and popular action that culminated in the patchwork statutory settlement currently in place: RCV is used for federal and state offices in primary elections, but for federal offices only in general elections.[204] That distinction reflects the scope of the constitution’s plurality provision, which applies only to general elections for state offices.

The Opinion of the Justices is as concise as it is cryptic. Of its seventy-two paragraphs, most are spent analyzing whether it would be appropriate for the Justices to provide an advisory opinion at all.[205] The merits of the “plurality” question occupy only nine paragraphs,[206] and the Justices’ substantive interpretation occurs in only two.[207]

First, the Justices articulate the relevant standard that should guide their interpretation. As they observe, Maine’s “[c]onstitutional provisions are accorded a liberal interpretation in order to carry out their broad purpose, because they are expected to last over time and are cumbersome to amend.”[208]

Next, the Justices recite the relevant constitutional text (old and new),[209] acknowledging that the word “plurality” refers to a numerical concept (i.e., the “highest number of votes”) rather than any particular electoral system.[210]

Finally, the Justices recount the troubled history of the State’s majority-threshold provisions. The opinion notes that a number of elections between 1830 and 1880 “yielded no candidate who achieved a majority,” and that “the alternative means for election provided by the 1820 Constitution had to be utilized.”[211] With brevity and clarity, the opinion sets out the justifications for abandoning a majority threshold and moving to a plurality standard:

The result [of the majority requirements] was widespread discontent—and, in 1879, threats of violence, which were quelled by the efforts of Joshua Chamberlain—caused by the expense and delay of holding repeat elections, by the election of candidates through legislative action rather than based on the will of the people, and by the claims of manipulation and allegations of self-dealing levied by opponents of the eventually-declared winners.[212]

By 1880, the opinion notes, all three offices had been amended to replace “majority” with “plurality.”[213]

The entirety of the Justices’ substantive analysis of the provision then follows:

[T]he language of the Maine Constitution today is clear. . . . [A]n election is won by the candidate that first obtains ‘a plurality of’ all votes returned. The Act, in contrast, provides for the tabulation of votes in rounds. Thus, the Act prevents the recognition of the winning candidate when the first plurality is identified.[214]

The Justices then provide an “illustrat[ion]” of the problem in which a candidate who receives a plurality of first-choice preferences is passed by a candidate in later rounds of tabulation who earns additional votes as less popular candidates are eliminated.[215] According to the Justices, this shows that “the Act is not simply another method of carrying out the Constitution’s requirement of a plurality,” but rather it prevents “a candidate [who has] obtained a plurality of the votes [from being] declared the winner.”[216]

The most fundamental defect in this remarkably brief analysis is that the Justices simply treat, without any analysis or justification, an elector’s ­first-preference ranking as that elector’s constitutional “vote.” As a formal doctrinal matter, that is at odds with the ranked-choice voting statute.[217] Surprisingly, the decision does not discuss the contrary conclusion of Massachusetts’s highest court, which had found RCV not to violate similar provisions in that state’s constitution, despite the briefs bringing that decision to the attention of the Maine court.[218]

Unlike the Moore opinion, which correctly recognized that a voter’s preference ranking cannot be translated into an “effective vote” until it has been “counted in accordance with” the ranked-choice tabulation process,[219] the Maine advisory opinion treated the voters’ first-choice rankings as their “vote,”[220] even though the legislation made it clear that this was not so.[221] In effect, the Justices sever the ranked-choice tabulation into pieces, treat the first step in that tabulation as a freestanding election, and regard RCV ballots as if they are SCV ballots with superfluous marginalia.

But there is, simply put, no such thing as a “first plurality” under a ranked-choice system.[222] The “first round” in an RCV election is only one part of a comprehensive and indivisible process, and the person with the largest number of first-preference rankings is nothing more than the person who holds the lead in those initial rankings. There is no inherent reason under an RCV statute to accord the first round any special constitutional significance. As other courts have recognized, “[t]he series of calculations required by the [ranked-choice voting tabulation process] to produce the winning candidate are simply steps of a single tabulation, not separate rounds of voting.”[223]

This distinction is central because it sits at the juncture between the legitimate justifications the Justices teed up and the unrelated decision they rendered. The “broad purpose[s]” of the plurality provisions—as the Justices recognized—were to prohibit “repeat elections” and the selection of candidates “through legislative action rather than based on the will of the people.”[224] In short, to identify a winner through a single popular election.[225] RCV does precisely that. Under Maine’s constitution—as under many constitutions—that should have been the end of the inquiry.[226]

Perhaps the Justices mistook RCV as imposing some kind of “majority-threshold requirement” of its own. But to conflate RCV’s sequential tabulation process with the kind of constitutional majority-threshold requirements in place in Maine’s 1820 constitution would be wrong four times over.

First (and most importantly), RCV does not impose any kind of threshold that would render the election a nullity if that threshold were not met. Whichever candidate has the most votes at the end of an RCV election is declared the winner. RCV—like SCV—is merely a balloting method for measuring popular support. At the end of the balloting, one candidate has the most votes. Nothing about RCV runs the risk of leading to a “non-election”—the core mischief that plurality provisions were adopted to avoid.[227]

Second, RCV—like SCV—does not even necessarily result in a majority outcome.[228] As the Justices acknowledged in a footnote, “[i]t is possible that . . . the prevailing candidate could win by a plurality of votes” due to ballot exhaustion.[229] For example, if every voter decided to make use of only one ranking, the RCV system would produce the same result as the SCV system—and the candidate with the most votes would win. Because many voters will make use of multiple rankings, RCV tends to result in majority outcomes more frequently than SCV, but a majority outcome is not guaranteed.[230]

Third, the fact that an RCV tabulation process might stop when a candidate obtains a majority is not because RCV requires a majority. Rather, no further tabulation is necessary to identify which candidate will ultimately receive the most votes and be declared the winner. Imagine an election with five candidates. In the first round, no candidate receives a majority and so the least popular candidate is eliminated. In the second round, a candidate receives a majority, so tabulation stops. That is not because a majority “threshold” has been imposed, but because further rounds of tabulation would serve no practical purpose. Once a candidate receives a majority, it is mathematically impossible for that candidate to lose. The candidate that has the “most votes” in round two will continue to have the “most votes” in rounds three and four. The election is over because the winner has been identified.

For strictly informational purposes, the tabulation could continue into the fourth round, reducing the field from four candidates to two candidates. But doing so would never change the outcome of the election. In San Francisco, for example, the tabulation process continues until only two candidates remain even if a candidate receives a majority in an earlier round.[231] Doing so provides the voting public with more information about the winning candidate’s base of public support, as well as that of the runner-up.[232]

San Francisco’s 2016 Board of Supervisors election under RCV offers an illustration. The District 9 election included four candidates: Hillary Ronen, Joshua Arce, Melissa San Miguel, and Iswari España. Based on first choices alone, Ronen already commanded 57 percent support.[233] No further rounds were necessary to identify the winner of the election. Nonetheless, the San Francisco Department of Elections ran the round-by-round tabulation process to completion. By the final round—with only Ronen and Arce remaining—Ronen’s base of support swelled to 65 percent.[234]

In short, the fact that some jurisdictions may stop the round-by-round elimination process when a winner emerges does not mean that RCV imposes a majority threshold for election. It simply means that a candidate who has received a majority of preferences has already clinched that election and no further tabulation will change the result.

Finally, the Justices misattribute their reasoning to the constitution’s plurality provision when, in fact, the existence of a majority or a plurality provision is irrelevant to the outcome of the case. The Justices’ opinion invalidated separate tabulation rounds by treating them as separate elections.[235] They reasoned that the second round of tabulation was invalid because a candidate would have won by receiving a plurality of votes in the first round. However, if the first round of the tabulation process is when the constitutionally salient count of “votes” is ascertained (as the Justices suggest), then even in a state with a majority provision a candidate with the greatest first-round plurality could challenge the second-round results. For example, imagine running the Justices’ “illustration” from above again, but this time under the 1820 constitution’s majority-threshold requirement. Assume Candidate A receives 47 percent, Candidate B receives 45 percent, and Candidate C receives 8 percent in the first-round tabulation. In the second and final round, however, Candidate B prevails with 52 percent, while Candidate A loses with 48 percent. Using the Justices’ reasoning that the first round of the tabulation is what constitutionally “counts,” Candidate A presumably would be able to challenge the result. According to the Justices’ logic, the lack of a majority in the first round (or a “first majority”) would activate the relevant constitutional contingency, forcing a new election (for state representatives) or passing the contest off to the political branches (for state senators and the governor).

By relying on the plurality provision to hold RCV unconstitutional, the Maine Justices got it wrong. The first round of an RCV tabulation process either has constitutional significance or it does not—the fact that the constitution contains a “plurality” provision rather than a “majority” threshold is irrelevant. This makes the entire opinion—from the discussion of the meaning of “plurality” to the dramatic recital of the state’s history—extraneous.

In short, the decision fails on its formal terms as a doctrinal matter. After establishing that their duty was to give the plurality provision “a liberal interpretation in order to carry out [its] broad purpose,”[236] the Justices undertook no meaningful textualist or purposive analysis into whether ranked-choice voting—on its own terms—could reasonably be construed to comply with the state’s plurality provision. Instead, the decision seems to be driven by the Justices’ preexisting (and non-constitutional) assumption that only one type of vote is legitimate: a single-choice vote.

Nor did the Justices offer any broader structural account to justify their decision. For example, one might imagine a state supreme court reading certain democratic background principles into its state constitution.[237] Such principles could view electoral laws as suspect when they restrict competition[238] or reduce alignment[239] or reduce opportunities for contestation.[240] Whatever might be said for the use of structural constitutional principles in election law decisions, the Justices neither offered such a principle nor sought to evaluate how the ranked-choice voting law might contravene such a principle.

Instead, the opinion seems to suggest (at most) a kind of reflexive resistance to the novelty of RCV. In concluding, the Justices wrote: “For the first time in Maine’s history, the method by which the people of Maine vote for Governor, their chosen Senators, and their chosen Representatives has been substantially altered through the enactment of a statute rather than through a constitutional amendment.”[241] The legal significance of this observation is not discussed, and from a formal perspective it is difficult to understand its relevance: the Justices cite no constitutional provision or principle imposing any kind of “substantialness” limitation on statutory changes to the state’s electoral machinery. And for good reason: our democratic structures should remain generally flexible to adapt to changing times and needs.[242]

If RCV is novel, the circumstances to which it is a response are exceptional as well. At the start of the twentieth century, voters rebelled against corrupt backroom deals and demanded direct primaries be used to choose the parties’ nominees. Similarly, the recent increased interest in RCV is a response to the highest levels of political polarization this country has experienced since the late nineteenth century and the desire of voters to elect candidates who can forge a more effective government in the midst of profound dissatisfaction with our gridlocked and dysfunctional politics.[243] RCV might or might not succeed in that aim, but voters are entitled to try this approach and evaluate it. Nothing in Maine’s—or any other state’s—“plurality vote” provision stands in the way of that choice.

B. Majority Thresholds & Ranked-Choice Voting

Majority-threshold provisions present more complex interpretive questions, but the core takeaway is the same: RCV is constitutional. This does not, however, mean the winner of an RCV election will always clear the constitution’s threshold. Just as SCV elections can fail to produce a majority, so too can RCV elections fail to produce the constitutionally relevant majority.

Plurality provisions focus on the numerator at the end of the vote-tabulation process—that is, who receives the most votes—and so courts need only construe the word “vote.” Majority provisions, on the other hand, ask a different question: what is the relevant denominator for measuring a constitutional “majority”? Put differently, candidates need to win a majority—but a majority of what?

In single-choice candidate elections, questions about the relevant denominator for measuring a “majority” rarely arise. Generally speaking, election authorities proceed on the assumption that the relevant denominator is the number of ballots cast for the applicable office.[244] Thus, the number of votes cast for candidates in a single-choice election will necessarily equal the number of votes received by candidates in that election.

In a ranked-choice election, however, the total number of votes cast for all the candidates in the election can be higher than the total number of votes received by the subset of those candidates who survive until the final round of tabulation. As discussed in Part I, if the ballot limits the number of choices a voter can make or any voter chooses not to rank all candidates, then some degree of ballot exhaustion becomes possible during the tabulation process.[245]

For example, in Maine’s 2018 Second Congressional District race, voters cast a total of 289,624 valid ballots.[246] First-round results showed Bruce Poliquin (R) narrowly leading Jared Golden (D), 46.3 percent to 45.6 percent.[247] Two independent candidates, Tiffany Bond and Will Hoar, had 5.7 percent and 2.4 percent.[248] After all of the voters’ “first choices” had been tallied, the two least popular candidates—Bond and Hoar—were eliminated.[249] Most voters who ranked Bond or Hoar first ranked Jared Golden second.[250] This allowed Golden to prevail over Poliquin in the final round.

On 7,820 ballots, however, voters ranked a third-party candidate first—and then declined to fill in any second-, third-, or fourth-preference ranking.[251] On 335 ballots, voters ranked a third-party candidate first, another third-party candidate second, and then left the remaining rankings blank.[252] These might be voters who are so alienated from both major parties that they show up to vote, but do not want to indicate a preference for any candidate from either of those two parties—even as a second, third, fourth, or lower option. Thus, when both of the third-party candidates were eliminated, these preferences became inactive and did not transfer to either of the two remaining major-party candidates. These voters might be thought of as abstaining from any choice as between the two major-party candidates.

In the end, this meant that while Jared Golden won with a majority (50.6 percent) of the final votes, he won with a plurality (49.2 percent) of the total number of ballots on which voters had expressed a preference for at least one candidate in the race.[253]

If the sequence above unfolded in a majority-threshold state, a legal challenge might arise regarding the meaning of the term “majority”: is the relevant denominator the number of “ballots returned” in an election or the number of “votes received” by the candidates who remain (the final vote totals) at the end of the tabulation?[254]

The legal question in such a situation is not whether RCV is constitutional; rather, the question is whether the outcome produced by RCV in a particular election satisfies the state’s majority-threshold trigger. Consider, for example, an SCV election: sometimes it produces a majority and sometimes it does not. When the latter occurs, the constitutional threshold is not met and the constitutional contingency is triggered. But no one asks whether this makes SCV unconstitutional. And for good reason: the relevant question is simply whether the electoral process set out in the statute cleared the necessary constitutional threshold.

The text, history, and purposes in such an analysis are more cross-cutting and ambiguous. As with SCV, an RCV election might fail to reach the majority-threshold requirement, with the result being a no-choice election that would then go to a separate runoff or to the political branches (depending on how a particular state defines who makes the choice when the election fails to return a “majority vote” winner).

While only two state constitutions retain a majority-threshold requirement for statewide political office (Vermont and Mississippi),[255] the underlying question of which denominator is used to measure a “majority” can also have consequences for local governments seeking to adopt ranked-choice voting reforms. Many states with plurality provisions for statewide elections (or no constitutional rule for statewide elections) impose statutory majority-threshold requirements for local elections.[256] Navigating these provisions—as well as the constitutions of Vermont and Mississippi—requires careful attention to the text and purposes of the specific majority-threshold requirement at issue.

This question also has implications for reformers seeking to implement RCV in presidential elections. As the final part of this Section shows, state-by-state efforts to introduce ranked-choice voting for presidential elector races must anticipate potential legal challenges that might arise from any kind of majority threshold that this reform effort introduces into state constitutional law. To prevent such challenges, these reform efforts must avoid any ambiguities around the relevant denominator for measuring compliance with that majority-threshold requirement.

1. Identifying the Relevant “Majority”

In evaluating ranked-choice voting under a majority-threshold requirement, we must consider both the text and purposes of the provision.

Text

To start, the particular phrasing of the relevant language matters. If a provision requires a candidate to prevail with a “majority of all the votes cast in the race,” for example, the threshold might be thought to prevent a candidate from winning based on receiving a majority of the final votes alone. On this view, a candidate who receives a majority of these final votes but only a plurality of total ballots cast in the race would not satisfy the threshold, and the relevant contingency would come into play.

If, on the other hand, a provision states that the “person receiving a majority of votes shall be elected,” this language might be sufficiently ambiguous that courts would readily turn to the purposes animating the text. Such a popular majority-vote threshold could be interpreted such that the winner of an RCV election would necessarily satisfy the majority-threshold requirement.[257]

Yet, even if a court interpreted the constitution to require a majority of all the ballots on which voters had expressed a preference for at least one candidate, that interpretation would not render RCV unconstitutional. Under this reading, RCV would be subject to the same conditions as SCV. If the candidate who received the most votes by the end of tabulation did not receive a majority of the “total votes cast,” the election would simply fail to identify a “majority” winner and the state’s constitutional contingency would be triggered.[258]

It is important to recognize that questions about what belongs in the denominator of a “majority” are not unique to RCV. The meaning of the word “majority” (including who or what belongs in the denominator) was a hotly contested concept in the nineteenth and early twentieth centuries, even under the more traditional SCV system.

Questions about the relevant denominator arose most often in the context of constitutional amendments or special propositions submitted to the electorate that required a “majority” of votes or voters to pass.[259] Such provisions initially puzzled courts. Consider, for example, a hypothetical town with 10,000 registered voters that holds an election where 5,000 voters cast ballots for mayor. The ballot also includes a question about raising taxes: 1,000 voters are in favor, 900 are opposed, and 3,100 leave the ballot question blank.

Should the denominator for the ballot question include all registered voters in the jurisdiction (10,000)? All voters who voted (or all ballots cast) in the relevant election (5,000)? Or only those votes on the relevant question (1,900)? Under the first two interpretations, the ballot question would receive less than a “majority” and would fail. Under the third interpretation, the ballot question would clear the threshold and pass. Either way, the judicial construction of the relevant denominator would be outcome-determinative.[260]

The American Law Reports canvass the wide variety of approaches courts took to this question.[261] Two general lessons stand out that are relevant for courts approaching ranked-choice voting.

First, the “varying phraseology” of the applicable thresholds mattered greatly in these cases.[262] And the same might be true depending on the text of different “majority vote provisions” in different states. The need to resolve these interpretive questions, though, does not render RCV anymore “unlawful” than do similar questions about constitutional and statutory provisions concerning SCV.[263]

Second, the purposes behind the threshold matter a great deal in resolving these interpretive questions.[264] We turn now to these purposes and the interpretive principles that courts might employ to fulfill these purposes.

Purpose

On balance, we believe the better legal conclusion is that the relevant denominator is the number of votes that remain active in the final round. Under such a rule, the winner of an RCV election would necessarily clear the majority threshold. This presumption fulfills the most common purposes behind majority-threshold provisions and builds on principles that were deployed by courts facing similar questions under SCV systems. Unless the text of a particular state’s constitution or code clearly establishes the opposite rule, we believe this presumption should govern.

In initial candidate elections and runoff elections alike, for example, courts commonly presume that the denominator for measuring a “majority” is defined by those voters who have actually voted in that race—voters that courts describe as having a demonstrated and sustained interest in the result of a race. Courts viewed this approach as advancing the majority-rule principle because “voters who absent[ed] themselves from an election duly called [were] presumed to assent to the expressed will of the majority of those voting.”[265]

Early treatises reflected this rule, stating that “in determining upon a majority or plurality, the blank votes, if any, are not to be counted.”[266] If 1,000 ballots are cast for Candidate X and 900 ballots are cast for Candidate Y, Candidate X would win with a majority of the 1,900 ballots, even if 3,100 voters left that particular race blank. The denominator is itself a product of demonstrated interest in the race.[267] Those who skip over a race on their ballot effectively delegate the decision to those voters who decide to register their opinion on that specific race.

Although the debate over the relevant denominator for ballot questions generated considerable conflict,[268] this conflict does not appear to carry over to candidate races for political office. In fact, some courts use candidate races as an interpretive touchstone.

In State ex rel. McCue v. Blaisdell, for example, the North Dakota Supreme Court held that a constitutional provision requiring that all county-boundary changes “be adopted by a majority of all the legal votes cast” at a general election meant only a majority of the votes cast on the specific question.[269] The court pointed out that in the time of voice voting, each race or question presented to the electorate had to be submitted separately and “[t]he result of the submission of each proposition was announced when completed.”[270] “[N]o one ever thought of delaying the announcement of the vote for one officer, or one question, until it was known whether on some other question a greater number of votes was cast.”[271]

As to the relevant standard for candidate races, the court did not mince words: “[I]t would be absurd and ridiculous, and a false and un-American standard, to require a candidate for an office to have a majority—not of the votes cast for the office for which he was a candidate, but a majority of the total number cast to fill some other office.”[272] Rather, “if an elector enters the booth and votes for some candidates and not for others . . . he delegates to those who do vote his rights as an elector and acquiesces in the result.”[273]

Similarly, in states that required runoffs to identify a “majority” winner if none emerged in an election, it was known that fewer voters frequently showed up for the runoff than had shown up originally. Nonetheless, proponents of using repeated runoff elections to identify a “majority” acknowledged that “majority” meant in the actual vote at issue. Thus, these debates reveal that even strong proponents of the “majority” principle did not think it meant a majority of all those who had voted in the initial election. In Massachusetts, for example, those who supported retaining majority thresholds generally conceded that “the people get tired of going to the polls, and the election is made at last by a less number than the plurality at the first trial.”[274] Nonetheless, the “grand principle of the majority system” was considered to be “preserved inviolate” by repeated runoff elections because “if the people do not see fit, in a given case, to avail themselves of [their rights], that is their own concern.”[275] Those who did not demonstrate an interest in subsequent runoff elections were seen as “waiving [their] rights” rather than “being debarred from them.”[276]

According to majority-threshold proponents, “[a] man expresses his opinion just as much by staying away from the polls as by going there.”[277] If “the question at issue is not of sufficient importance, or, because the difference between the candidates is not of sufficient importance to bring him out,” then “the majority principle is maintained precisely as much as if every man were at the polls.”[278] In short, the majority principle was understood by its historical proponents to view those who demonstrate continued interest in a race as properly binding those who were said to forfeit interest in the race. To majority-provision advocates, this interpretation justified treating the denominator as those who voted in the actual runoff election itself, not those who had voted at earlier stages.[279]

For RCV, the purposes and principles behind the majority threshold suggest that unless the text of the relevant legal rule is clear otherwise, the relevant denominator should be the number of effective votes in the final round of tabulation, not the total number of ballots on which voters had expressed a first-choice preference. According to this principle, when voters rank a single preference and cast their ballots, they “expresses [their] opinion just as much” by leaving the additional preferences blank as they do by filling them in.[280] If they support only one candidate and “the difference in the [remaining] candidates is not of sufficient importance to bring [them to fill in further rankings]” then “the majority principle is maintained.”[281] And just as skipping a race or question on the ballot altogether “absents” a voter from the denominator of that race, the voter who leaves further preference rankings blank is presumed under this interpretive principle “to assent to the expressed will of the majority of those voting” as the tabulation proceeds into further rounds.[282] Therefore, excluding the single-preference voter from the final denominator complies with the will of both the individual voter whose preference is recognized and also the majority.

To be sure, this presumption is not without its own normative trade-offs. For example, just a handful of third-party voters (or even “protest” voters) using SCV in a majority-threshold jurisdiction can force a runoff. This gives political minorities a strong source of leverage. But the question then becomes: leverage to what end? If the protest voter plans on voting for a different candidate in the runoff election, why not list that candidate as a second choice in an RCV race? If the protest voter does not plan on taking part in the runoff, then the failed election serves a symbolic purpose rather than a decisional purpose. One might believe this expressive value is worth the extra administrative burden (and the potential distortion in the deciding electorate), but that policy judgment is not a foregone conclusion simply because the jurisdiction employs a majority threshold simpliciter. And we believe that unless the text or context surrounding the adoption of the jurisdiction’s majority threshold suggests otherwise, the best baseline rule is to assume that voters who decline to list additional preferences need not be included in the relevant denominator.

Whether one normatively accepts such “abstention,” “consent by inaction,” or “delegation” arguments, the fact remains that universal consensus came to exist (which we take for granted today) that a candidate in an SCV election needs only a majority of the vote in their particular race and that a candidate in a runoff needs only a majority of the vote in the runoff. The same logic—extended to an RCV election—means that a candidate in an RCV election who receives a majority of the votes in the final round of tabulation should be viewed as the majority winner under a majority-threshold provision. Indeed, while many of the justifications that provided for the presumption in traditional runoffs ring hollow (given how impractical and inequitable it can be to expect equal turnout for a separate runoff election), these justifications carry more weight in the context of a ranked-choice election.

For traditional runoffs, voters who participated in the first election may be genuinely unable (rather than simply unwilling) to participate in the second election. For ranked-choice voting, however, each voter has an equal opportunity on election day to list as many preference rankings as every other voter.

Even if one adopts the interpretive presumption above, however, a more difficult question emerges if a state or local government adopts an RCV system that limits the number of candidates a voter can rank to a number less than the total number of candidates running. A jurisdiction might do so if it thought asking voters to rank more than, say, five candidates imposed too great an informational burden.[283] In a race with five candidates in a state that allows voters to rank only three candidates on their ballot, for example, a voter might have all three of their choices eliminated during the tabulation process. In other words, the limitations of the electoral system itself would preclude the voter from having a say in the contest between the final two remaining candidates. This is not ballot exhaustion due to the voter deciding not to rank all the candidates, but a product of the design of the voting system itself.

Unlike in a traditional runoff, where voters are not technically foreclosed from participating in the second election, a voter in an RCV system that limits rankings is technically foreclosed from taking part in the final, determinative choice(s). For this reason, the presumption collapses.

In short, when the administrative limits of a system preclude the formation of a majority of interested voters (as may occur under SCV or restricted-RCV), the number of total votes cast in the race as a whole may provide a more appropriate denominator for determining whether the system has produced a legally relevant “majority.” When the result falls short of this threshold, the relevant statutory or constitutional contingency provision would be triggered.

Implications for RCV and Local Elections

Our analysis of whether and when an electoral result produced by RCV satisfies a majority-threshold requirement has significance beyond the state level. State election codes also occasionally impose statutory majority thresholds on local elections, thus requiring municipal governments to comply if they choose to adopt RCV for local races. Depending on the text in specific state laws, this requirement might mean the relevant denominator should refer to the votes cast for candidates in the final round, but in other cases to the total votes cast in the race as a whole.

The Texas Election Code, for example, states that in cities with a population of 200,000 or more,[284] a candidate for city office “must receive a majority of the total number of votes received by all candidates for the office.”[285] In 2001, the Secretary of State opined that the City of Austin could not adopt RCV because the term “majority” should be read to refer to a majority of votes in what the Secretary called the “‘classic’ or ‘traditional’ sense, i.e., a majority . . . of more than half of the original votes, as cast and not re-assigned by the voter’s secondary or tertiary intent.”[286] Two years later, the Attorney General weighed in, concluding that the Election Code “precludes a municipality from adopting [RCV because] in the event of a plurality vote . . . the appropriate official must order a runoff election.”[287]

What neither official appeared to contemplate, however, was the possibility that the “majority” could be determined using “total votes cast” as the denominator—and that a city might choose to enact RCV under that definition anyway.[288] This definition is consistent with the text (requiring a majority of votes “received by all candidates for the office”), and it meets the statutory requirement that a separate runoff election occur “in the event of a plurality vote.”[289] Under this reading, RCV is lawful—it just will not always produce a majority.

Examining how RCV provisions might be structured and drafted in any given locality, given the state’s particular majority-threshold and runoff provisions, is beyond the scope of this Article. But our analysis provides a conceptual framework for reformers, litigants, legislators, and judges attempting to grapple with how RCV intersects with existing state election laws. And, where the text of the state law is ambiguous and subject to multiple interpretations, we believe for the reasons set out in Part III.B.1 above that the most appropriat

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[1] Url: https://www.californialawreview.org/print/the-legality-of-ranked-choice-voting

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