All states (IRV): The courts got it right: recognizing that instant runoff voting makes every vote count

This November, Instant Runoff Voting (IRV), also called ranked choice voting, will be used for fiercely contested elections for mayor in San Francisco (CA), Portland (ME), and Telluride (CO) as well as for city council elections in St. Paul (MN) and Takoma Park (MD). IRV is also used abroad: Ireland will elect its president with IRV this month, and London will use IRV for mayoral elections in 2012. As recommended by Robert’s Rules of Order, more than 50 American colleges and universities now elect their student leaders with IRV.

With IRV, voters get one vote and one ballot, but get to rank candidates in order of preference. If no candidate wins with a first-choice majority, the candidate with the fewest votes is eliminated and their supporters’ second choices are added to the totals of the remaining candidates in an “instant runoff.” The process of elimination and redistribution continues until one candidate has a majority.

IRV has become a hot topic among electoral reformers and other political scholars because it has the ability to reduce the potential of a strong third party candidate creating a “spoiler effect.” Many have recently taken note of IRV, especially in the wake of IRV’s implementation in over a dozen cities throughout the United States. Though there have been challenges to IRV’s constitutionality, state and federal courts have repeatedly upheld IRV as a constitutional voting system. For example, in 1975, the Michigan circuit court in Stephenson v. Ann Arbor Board of Canvassers defended IRV as upholding the principal of one person, one vote. In 2009, in Minn. Voters Alliance v. Minneapolis, the Minnesota Supreme Court upheld IRV against a facial constitutional challenge. Most recently, in 2011, in the case of Dudum v. Arntz, the Ninth Circuit court unanimously held that San Francisco’s form of IRV was constitutional.

One of the leading challenges incorrectly brought against IRV is that it violates an individual’s equal protection right to vote because one person’s vote is counted differently than another person’s vote. In Stephenson, the court found that equal protection was not violated in an IRV system, as every vote counts equally at the time a voter casts his or her ballot, and that the runoff process does not weigh one person’s vote more heavily than any other’s. Minn. Voters Alliance explicitly rejected the argument that one’s vote is weighed less than another’s vote that is advanced to subsequent rounds of runoffs. Echoing the Minnesota court’s ruling, the Ninth Circuit court also rejected this argument. The importance of Dudum was the court’s reasoning that IRV was analogous to a single election, and not to a series of runoffs; thus, every individual has an equal opportunity to cast his or her vote at the outset of the voting process, meaning that every individual’s vote is counted equally.

Another important outcome of recent case law is the standard by which IRV is adjudicated. The Minnesota court articulated the standard for courts evaluating IRV – that because IRV laws do not impose a severe burden on the right to vote, a strict scrutiny analysis is unwarranted. Similarly, the Dudum court found that San Francisco’s limited ranking system was not a severe burden on the right to vote that would permit strict scrutiny; furthermore, that the limitation was justified by the city’s important interest in regulating elections. Going forward, other challenges brought to an IRV system will not be analyzed under a strict scrutiny standard. Moreover, the courts are clear that the burden of ranking candidates imposed by IRV is justified by a government’s interest in promoting less costly, more efficient, and fairer elections.

Finally, apart from constitutional challenges, opponents of IRV have questioned whether IRV is too confusing. A study conducted following San Francisco’s first IRV election uncovered that voters of all races and ethnicities found IRV easy to understand. In the diverse cities of San Francisco and Oakland, IRV enabled 99.7% of voters to cast valid ballots in those jurisdictions’ first citywide elections. Furthermore, IRV promotes increased voter turnout among racial and ethnic minorities compared to primaries or runoffs. The study indicated that this increased turnout combined with the ability to use rankings effectively could lead to the formation of minority voting blocs – a key  element to greater minority representation. IRV also avoids the one-on-one, winner-take-all dynamics of a runoff, which historically becomes more racially polarizing with two candidates of different races.

In light of the upcoming 2012 presidential election, where a strong third party candidate could enter the political scene, IRV will likely advance to the forefront of discussions among election reformers. Despite opponents’ legal challenges, courts have held IRV constitutional. Most  importantly, as the Minn. Voters Alliance court recognized, IRV is a valuable system with several benefits including: reducing costs to voters and candidates, making the voting process more convenient and efficient by holding only one election, increasing voter turnout, and encouraging greater minority representation in multi-seat races. These are justifications for any city seeking to implement IRV in the future.

FairVote, a national organization based in Takoma Park, Maryland, is a leader in promoting fundamental reform of American elections. Utilizing a combination of research, advocacy, and education FairVote, seeks to ensure that every individual’s vote counts through fair voting systems and fair access to participation. Additionally, FairVote assists in voting rights litigation through a vibrant amicus brief practice and helps local jurisdictions in their implementation of alternative voting systems, such as instant runoff voting.

Elise Helgesen is an attorney currently employed as a Democracy Fellow at FairVote. Before coming to FairVote, Elise interned for the Lawyers’ Committee for Civil Rights Under Law, working on voting rights issues. She also interned for the U.S. Attorney’s Office for the Southern District of Florida. Elise graduated from the College of William and Mary with honors in 2008 with a major in Government. She graduated from the University of Florida Law School with honors in 2011 and was recently admitted to the Virginia State Bar.

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