Ranked Choice Voting is Constitutional
By | October 15, 2020
In our highly polarized and divisive political climate, many Americans are looking for reforms to improve our elections and strengthen our democracy. One reform gaining traction in states and localities around the country is ranked-choice voting (“RCV”). In November, voters in Massachusetts (and Alaska as well) get to decide whether to adopt RCV.
RCV lets voters rank multiple candidates for an office in the order the voter prefers rather than limiting the voter to just one. If no candidate is the first choice of enough voters to win, the least popular candidate is eliminated and voters who preferred that candidate have their ballots counted for their second-favorite candidate instead. This process repeats until only two candidates remain (or until one of the candidates receives a majority).
Supporters say RCV gives voters a stronger voice in the political process, reduces polarization, encourages more positive campaigning, and saves voters from having to choose between “the lesser of two evils.” Detractors worry that voters would find ranking candidates too complicated.
These are the legitimate policy debates voters should be having about whether RCV is a desirable political reform. But in recent weeks, that debate has become clouded with legal questions over whether RCV is consistent with the Massachusetts Constitution. As election-law scholars who have studied this issue in detail, we conclude that it is.
The Massachusetts Constitution states that the candidate who receives “the highest number of votes shall be deemed and declared to be elected.” Some have raised concerns about whether this provision would bar the use of RCV, even though this constitutional provision was not written with RCV in mind.
In a forthcoming article, we examine in depth the history and purpose behind these “highest-votes” provisions, which appear in most state constitutions. That history reveals that these provisions were adopted to remedy a specific problem that arose early in American history. Many early state constitutions (like Massachusetts’) contained a “majority threshold” requirement. If a popular balloting did not produce a majority winner, no one was elected. Instead, either (1) the election was re-run over and over again until someone did get a “majority” of the vote, or (2) the legislature took over deciding who should win the seat.
This over-zealous, early understanding of “majority rule” generated significant problems. One Massachusetts race, for example, required twelve separate elections before a candidate prevailed. In another instance, a Massachusetts congressional seat remained vacant for an entire term because no one was ever elected.
In response, the Massachusetts Constitution (like most others) was amended to replace the prior “majority threshold” requirement with the “highest number of votes” provision. This provision was adopted to ensure that a winning candidate could be identified through a single popular balloting – even if that candidate received only a plurality of the vote.
RCV is fully consistent with the purposes, history, and text of this constitutional provision. In RCV, voters cast a single ballot in a single election. The candidate who receives the “highest number of votes” at the end of the counting process wins. RCV does not require more than one election to determine a winner. Nor does it let politicians choose officeholders rather than voters.
Of course, a ranked-choice vote does contain more information about a voter’s preferences than a single-choice vote – that is part of why supporters endorse it. But the winner in a ranked-choice election is indeed the candidate who receives “the highest number of votes.”
In fact, the Massachusetts Supreme Judicial Court has already strongly suggested that RCV is constitutional under the state’s “highest number of votes” provision.
In a 1941 decision, the SJC stated that Cambridge’s “preferential voting” system “cannot be declared unconstitutional on the ground that it is in conflict with ordinary principles of plurality voting.” RCV is simply another, closely related form of preferential voting. As the Chief Justice wrote back then for the Court: “candidates receiving the largest numbers of effective votes counted in accordance with the plan are elected, as would be true in ordinary plurality voting.” And while a voter “has the privilege of expressing preferences as to the candidate for whom his vote shall be effective,” it remains the case that “no voter can cast more than one effective vote.” This is exactly how RCV works.
All this would be straightforward were it not for a recent decision from Maine’s highest court. In 2017, that court came to an opposite conclusion, stating that RCV “is not simply another method of carrying out the Constitutional requirement of a plurality.” With due respect, we believe the Massachusetts high court got it right, and Maine’s got it wrong. As the Massachusetts SJC said, under RCV the candidate “receiving the largest number of effective votes counted in accordance with [that voting system] are elected…”
We hope the Justices in Maine did not reach their decision simply because RCV was a change from the usual method of voting. Americans have continually experimented with new ways of structuring the political process throughout history. Early voting was once a new and novel concept. As was the idea of parties selecting their nominees through primary elections. If a law does not clearly flout the federal or state Constitution, the decision over whether to adopt it belongs to the voters.
Here, too, the Massachusetts high court got it right back in 1941, cautioning, “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.”
If voters in Massachusetts endorse RCV this fall, we expect the SJC would say the same today.
Richard Pildes, an NYU School of Law Professor, is one of the nation’s leading scholars of constitutional law and a specialist in legal issues concerning democracy. A former law clerk to Justice Thurgood Marshall, he has been elected into the American Academy of Arts and Sciences and the American Law Institute, and has also received recognition as a Guggenheim Fellow and a Carnegie Scholar.
Michael Parsons is Associate Director and Acting Assistant Professor of Lawyering at NYU School of Law and an Adjunct Fellow at FairVote.