The Legality of Ranked-Choice Voting

68 Pages Posted: 22 Apr 2020 Last revised: 20 Aug 2020

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 creative incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). Voters in Maine recently endorsed RCV for federal and state elections, and RCV is on the ballot this fall for federal and statewide offices in such diverse states as Massachusetts and Alaska. Several large cities have adopted RCV in recent years, including Minneapolis, San Francisco, and Oakland. Some reformers have also proposed that states move to RCV in presidential elections.

Yet RCV now faces an existential legal threat. The Maine Supreme Judicial Court, the state’s highest tribunal, recently concluded that RCV violates the state constitution. If that interpretation is 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.” The Maine Supreme Judicial Court concluded that the multi-round tabulation process of RCV violates this provision. Even in states without such a constitutional provision, state statutes often include the same requirement, which — if the Maine decision is correct — would prevent local governments from adopting RCV.

This Article is the first to examine the history, context, and meaning of these widespread plurality-vote provisions. This history reveals that many states initially required winning candidates to receive a “majority of the votes” cast, and that plurality-vote provisions came into being to replace these majority-vote provisions. After comprehensively examining this history, as well as the purposes and context behind the adoption of plurality-vote provisions, this Article concludes that RCV is not inconsistent with these provisions.

In addition, two state constitutions, some state statutes, and proposed reforms to the voting rules for presidential elections require candidates to receive a “majority of votes cast.” These majority-vote provisions pose different, more complex challenges for RCV. This Article offers solutions to ensure that RCV does not run afoul of these provisions. If Americans choose to adopt RCV for presidential, national, state, or local elections, state constitutions and statutes should not pose an 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, 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

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
263
Abstract Views
1,235
rank
130,544
PlumX Metrics