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Abstract
With the rise of extreme polarization, intense politicaldivisiveness, and gridlocked government, many Americans are turningto reforms of the democratic processes that create incentives forcandidates and officeholders to appeal to broader coalitions. Acenterpiece of these efforts is ranked-choice voting (RCV). RCV allowsvoters to rank candidates in order of preference: first, second, third,and so on. To determine the winner, the candidate with the fewest “firstchoices” is eliminated and those ballots are then counted for thevoter’s second-choice candidate. This process continues until acandidate either has a majority of the votes or until only twocandidates remain.
Voters in Maine and Alaska have endorsed RCV for federal andstate elections in recent years, and RCV continues to gain traction ina variety of large cities throughout the country, including New York,Minneapolis, San Francisco, and Oakland. Some reformers have alsoproposed that states move to RCV in presidential elections, as Mainerecently did.
Yet RCV now faces an existential legal threat. In 2017, the MaineSupreme Judicial Court, the State’s highest tribunal, advised that RCVviolates the state constitution. Were that interpretation correct, itwould imperil RCV nationwide. Nearly 40 state constitutions includeprovisions similar to that in Maine’s constitution. These provisionsdeclare that candidates are to be elected to office if they receive “aplurality of the votes” or the “highest,” “largest,” or “greatest”number of votes. Maine’s highest court concluded that RCV’s multiround tabulation process violates this type of provision. Even in stateswithout such a constitutional provision, state statutes often include thesame requirement. In short, if the Maine decision is correct andadopted more broadly, it could prevent state and local governmentsthroughout the country from adopting RCV.
This Article is the first to examine the history, context, andmeaning of these widespread plurality-vote provisions. After doing so,this Article concludes that RCV does not violate these provisions. Thehistory of these provisions reveals that many states initially requiredwinning candidates to receive a “majority of the votes” and thatplurality provisions eventually came to replace these majoritythresholds. The purpose of these plurality-vote provisions was toensure that a winner could be identified through a single popularelection, rather than requiring multiple separate elections todetermine a winner or leaving the choice to the legislature. RCV offersprecisely that: voters cast a single ballot in a single election and thecandidate with the most votes, once the counting is complete, wins theelection.
Instead of plurality-vote provisions, a “majority of votes” isrequired to win in two state constitutions, some state statutes, andcertain proposed reforms to the voting rules for presidential elections.These provisions pose a different challenge for RCV: whether thewinner in an RCV election has received a “majority” of the relevantvotes. The winner in RCV receives a majority in the final round oftabulation, but that might not be a majority of all the ballots (somevoters might not have ranked either of the two candidates left in thefinal round of tabulation). This Article concludes that RCV is also bestinterpreted 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 majorityprovisions in state constitutions and state law should pose no legalobstacle to properly drafted RCV legislation.