The Legality of Ranked-Choice Voting

133 Pages Posted: 22 Apr 2020 Last revised: 13 Jul 2021

See all articles by Richard H. Pildes

Richard H. Pildes

New York University School of Law

G. Michael Parsons

New York University School of Law

Date Written: August 19, 2020

Abstract

With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that create incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). RCV allows voters to rank candidates in order of preference: first, second, third, and so on. To determine the winner, the candidate with the fewest “first choices” is eliminated and those ballots are then counted for the voter’s second-choice candidate. This process continues until a candidate either has a majority of the votes or until only two candidates remain.

Voters in Maine and Alaska have endorsed RCV for federal and state elections in recent years, and RCV continues to gain traction in a variety of large cities throughout the country, including New York, Minneapolis, San Francisco, and Oakland. Some reformers have also proposed that states move to RCV in presidential elections, as Maine recently did.

Yet RCV now faces an existential legal threat. In 2017, the Maine Supreme Judicial Court, the State’s highest tribunal, advised that RCV violates the state constitution. Were that interpretation correct, it would imperil RCV nationwide. Nearly 40 state constitutions include provisions similar to that in Maine’s constitution. These provisions declare that candidates are to be elected to office if they receive “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes. Maine’s highest court concluded that RCV’s multi-round tabulation process violates this type of provision. Even in states without such a constitutional provision, state statutes often include the same requirement. In short, if the Maine decision is correct and adopted more broadly, it could prevent state and local governments throughout the country from adopting RCV.

This Article is the first to examine the history, context, and meaning of these widespread plurality-vote provisions. After doing so, this Article concludes that RCV does not violate these provisions. The history of these provisions reveals that many states initially required winning candidates to receive a “majority of the votes” and that plurality provisions eventually came to replace these majority thresholds. The purpose of these plurality-vote provisions was to ensure that a winner could be identified through a single popular election, rather than requiring multiple separate elections to determine a winner or leaving the choice to the legislature. RCV offers precisely that: voters cast a single ballot in a single election and the candidate with the most votes, once the counting is complete, wins the election.

Instead of plurality-vote provisions, a “majority of votes” is required to win in two state constitutions, some state statutes, and certain proposed reforms to the voting rules for presidential elections. These provisions pose a different challenge for RCV: whether the winner in an RCV election has received a “majority” of the relevant votes. The winner in RCV receives a majority in the final round of tabulation, but that might not be a majority of all the ballots (some voters might not have ranked either of the two candidates left in the final round of tabulation). This Article concludes that RCV is also best interpreted as consistent with most of these “majority-vote” provisions.

Thus, if Americans choose to adopt RCV for presidential, national, state, or local elections, these plurality- and majority-provisions in state constitutions and state law should pose no legal obstacle to properly drafted RCV legislation.

Keywords: Voting, Democracy, Constitutional Law, Ranked-Choice Voting, Alternative Voting, Voting Systems

Suggested Citation

Pildes, Richard H. and Parsons, G. Michael, The Legality of Ranked-Choice Voting (August 19, 2020). California Law Review, Forthcoming, NYU School of Law, Public Law Research Paper No. 20-55, Available at SSRN: https://ssrn.com/abstract=3563257 or http://dx.doi.org/10.2139/ssrn.3563257

Richard H. Pildes (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6377 (Phone)
(212) 995-4341 (Fax)

G. Michael Parsons

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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