Instant-Runoff Voting and Top-Two Nonpartisan Primary (Beyond Being Ineffective) are Likely Unconstitutional in RI

EDIT: An astute reader has reminded me that a number of cities and towns use a nonpartisan runoff system already and there’s been no challenge to those systems on constitutional grounds yet, so it’s very likely that the two-round runoff is constitutional. I still think it probably shouldn’t be, and it’s likely the right conditions haven’t occurred to bring a legal challenge over the constitutionality of those systems. But I failed to mention them, and indeed overlooked those systems while writing this, so it does make a lot of the below seem like a bunch of motivated reasoning, if not just wrong.

In the wake of his primary victory in the Senate District 3, Sam Zurier suggested his victory with 31% of the vote could help provide an impetus to move towards “ranked-choice voting” for governor.

Ranked-choice voting is an imprecise way of referring to this reform, since it’s a voting method, rather than an electoral system. What I suspect Zurier is referring to is what has been previously been called “instant-runoff voting” and recently went into effect for Maine primary and federal elections and a bastardized version was used in the recent NYC mayoral primary. Elsewhere, it’s used in Australian elections under the name “preferential voting” and was suggested for use in the UK under the term “alternative vote”. Under this scheme, a single candidate is elected from a range of candidates based on voters ranking each candidate, with their first preference being ranked “1”, their second preference ranked “2” and so on. Candidates with the least first preference votes are eliminated in the first round of counting, and their votes redistributed based on their voters’ second preferences, and then in each round of counting the candidate with the least votes is eliminated and their votes redistributed based on the preferences of their voters among the remaining candidates until one candidate has achieved a majority.

Ranked-choice voting is also used in a proportional representation method called “single-transferrable vote” which is used in Cambridge, Mass; as well Ireland and Malta. But this a multi-winner system, and likely isn’t what Zurier is suggesting.

Over at the other end of the Democratic Party spectrum, former Providence mayor Joseph Paolino has advocated for (I believe, it’s a little unclear) and Rep. Arthur Corvese has introduced legislation that would establish what’s sometimes referred to as the “Top-Two Nonpartisan Primary” – which creates a two-round election system: a first round election (referred to in some places as a “preliminary” or a “nonpartisan primary” or, in Corvese’s formulation, a “primary general election”) where all candidates can run, regardless of their political party or the number of co-partisans already in the race, and then the two highest vote-getters advance to the general election, with the winner necessarily securing a majority of votes. As far as I know, this a wholly American political innovation, in use in Louisiana, Washington, and California (Alaska has adopted a version of this that marries it with instant-runoff voting).

Both systems, instant-runoff and the Top Two primary, are methods of achieving a majority vote outcome. Typically, the United States has operated on a plurality vote system, whereby the person with the most votes wins. Indeed, the vast majority of elected officials in the United States are elected under this system: a plurality single-member district. Outside of the Top Two states, this hold true for almost almost governors, senators, representatives, mayors, and city councilors (though, things get weird as we move towards the local level). The candidate with the most votes, but not necessarily a majority, is elected from a district with just one person representing it (in this case, “district” can refer to something like a legislative district or a city or state).

Majority vote systems seek to eliminate the allowance for plurality winners, and ensure that any candidate elected reflects the will of the majority of voters.

Constitutional Barrier

However, the Rhode Island Constitution has a very specific hurdle for anyone who would attempt to create a majority vote system: Article IV, Section 2.

Section 2. Election by plurality.
In all elections held by the people for state, city, town, ward or district officers, the person or candidate receiving the largest number of votes cast shall be declared elected.

My reading of this section is that it basically eliminates instant-runoff voting as a way of electing candidates, since anyone who received the largest number of votes cast in the first round of counting would have grounds to sue that they were the rightfully-elected candidate if they ended up being eliminated or losing in later rounds of counting. Ironically, the first place candidate in the first round of voting only infrequently loses the whole election, so it might take a while for this to occur.

It likely also eliminates Top-Two as a method of electing candidates, since the person with the most votes at the end of the “primary general election” could also argue they were the constitutionally elected candidate. It really depends on whether you think the primary general election is not an “election” under the constitution. If it were to pass, and were the state Supreme Court to agree with a plaintiff that the primary constitutes an election (which it seems to do now), Corvese’s bill could effectively end November elections in Rhode Island.

Funnily enough, the way I read it, Article IV, Section 2 doesn’t eliminate most proportional systems from being deployed in Rhode Island (though they’re made difficult by other parts of election law). Single-transferrable vote like they use in Cambridge or Ireland is likely constitutional since candidates can only be elected with a plurality of votes (excess votes are reassigned to other candidates). Proportional list systems like a wholly list-based system (where people vote for parties or party candidates and parties are assigned seats proportional to the total vote for each party) or a mixed-member proportional system (which allows people to be elected in plurality single-winner districts but then balances parties’ seats in the legislature proportional to a second party vote) do seem to be legal, since it’s arguable that all proportional systems also pretty much only use plurality voting.

So it’s actually easier to move to a system of proportional representation rather than a majority vote system in Rhode Island, since the former requires only legislative adjustments of election law and the latter requires constitutional referendum.

Majority Vote Systems Will Be Ineffective Reforms

Shifting to instant-runoff vote and the Top-Two Nonpartisan Primary (to political science readers: yes, I can hear you screaming at the use of these terms) are gaining steam in the United States. However, they won’t change much. The usual reason for Top-Two is its moderating effect on candidates, but there’s been shockingly little evidence that it’s produced this result (for example, California’s Democratic Party is strongly in control of the state and one of the most liberal Democratic Parties in the country). Candidates who advance it in the hopes of warding off challengers from the wings of their parties may find themselves disappointed when it fails to achieve the desired result.

Another problem is that it’s almost a direct attack on the party system itself, but it doesn’t eliminate parties. Party primaries were created to prevent the selection of candidates in the proverbial (and real) smoke-filled rooms, but since the open first round election eliminates the party primary, it will become necessary for parties to start coordinating before the first round, which could lead to party-supported candidates being selected in secret deals without voter input.

Arguments about moderation abound for instant-runoff, and there’s some evidence that candidates are a little nicer to their opponents in pursuit of second preference voters, but not that they moderate or are nice to all of their opponents. Ranked-choice systems also have a flaw that they greatly increase the complexity of voting; it’s easier to make a mistake by ranking multiple candidates with the same preference vote and thereby have your ballot thrown out. Beyond that, voters may simply just not rank more than a few candidates. The end result may be fewer voters turning out, and candidates elected with a much smaller percentage of the vote in the final rounds of counting. It’s possible to eliminate voter mistakes or mandate completion of the ballot with technology, but given the security that paper ballots offer (and that the Board of Elections fairly recently purchased new machines) it’s hard to imagine that will be the case here in Rhode Island.

A major problem for reformers is that there’s little evidence that candidates elected under plurality voting or majority voting behave any differently once in office. “Electoral mandates” are largely rhetorical tools for politicians, who often claim them even when they lack a majority vote. Rhode Island has proof of this: there’s nothing to suggest that Governors Chafee and Raimondo, elected on plurality wins, behaved any differently once in office due to the narrowness of those wins. Instead, campaigns remain the best way of understanding a candidate’s intentions once in office.

There Are Better Paths Forward

Rhode Island’s major problem is that it toils under a legal regime that virtually bans small parties from participating, and is incredibly hostile to the idea of “political parties” generally. Single-winner districts with plurality voting do not mandate that there only be two parties; indeed Canada and the United Kingdom have party systems with multiple parties represented despite being elected using similar electoral systems. Reformers who wish to improve the quality of Rhode Island’s democracy might seek to allow political activity to occur outside of the banners of the Democratic and Republican parties, even with all the problems of the spoiler effect. It’s long past time to loosen our restrictions on political parties, and open ourselves up to a flourishing democracy.

Top-Two and instant-runoff are simply not methods for achieving that democracy.

Now let’s all enjoy the catchy upbeat pop song about mixed member proportional.

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