Legality of ranked-choice voting prompts disagreement between supporters, Austin city attorneys | Community Impact

Voters line up during the Dec. 15 runoff election. (Christopher Neely/Community Impact Newspaper)

This May, Austinites could have the chance to vote on a quartet of significant changes to the city’s governance structure and democratic process if a petition submitted Jan. 11 is deemed valid by the city clerk.

Among the proposed changes is a switch to a ranked-choice voting system, also known as instant-runoff or preferential voting. The system, which allows voters at the ballot box to rank candidates by preference, would effectively eliminate June and December runoff elections. These runoffs are currently required in Texas when no candidate in a May or November election earns more than 50% of the vote, but they have been widely criticized for their cost and low turnout rates and for narrowing the electorate ultimately responsible for the election results.

Ranked-choice voting has been heralded by supporters as the best vehicle to end runoff elections. This system is currently used in San Francisco and Oakland in California and in St. Paul, Minnesota. New York City voters adopted it in 2019 and will vote as such in elections this year. The state of Maine employs the system, and the state of Alaska is set to vote by preference starting in 2022.

However, ranked-choice voting exists nowhere in Texas, and there is disagreement as to whether its use actually allowed.

How it works

The move to eliminate runoff elections through ranked-choice voting would change how Austinites choose their mayor and City Council members. Under the current system, if no candidate earns more than 50% of the vote in the November election, the top two vote-getters battle for majority support in a one-on-one runoff election in December. The most recent City Council election resulted in runoff elections in Districts 6 and 10.

Since 2014, Austin has seen 13 December runoff elections for candidates for mayor and City Council. According to a Community Impact Newspaper analysis, turnout in these runoff elections as compared to their November predecessors fell by an average of 55.10%. The best runoff turnout—as a percentage of the November general election turnout—was 58.7% in the 2014 District 10 City Council runoff between Sheri Gallo and Mandy Dealey. The worst was 21.7% in the 2018 District 1 runoff between City Council Member Natasha Harper-Madison and Mariana Salazar.

Ranked-choice voting would eliminate the need for these runoff elections and would run as follows:

ROUND ONE

• If four candidates are on the ballot—John Smith, Jane Doe, Jane Smythe and Jon Dough—a voter could choose just one candidate or rank the candidates in order of preference.


• The initial election results would tally how many “top choice votes” each candidate received.


• If the initial results were to show Smith at 43%, Doe at 40%, Smythe at 10% and Dough at 7%, that would mean no candidate received more than 50%, and the race would move into an “instant runoff.”

• Election officials would remove the last-place finisher—in this case, Dough.


• Anyone who had Dough as their top choice would have their vote for their second-choice candidate counted instead, and those votes would be added to the totals for the remaining three candidates.


• After the second round of vote tallying, the results could look like this: Smith, 43%; Doe, 46%; Smythe, 11%. As there is still no candidate who received over 50% of the vote, a third round of counting is needed.

• Election officials would remove last-place Smythe from contention and recalculate her votes.


• The 10% of voters who picked Smythe as their top choice would have their second choices counted. The 1% of ballots Smythe received from being the second preference to Dough would have their third preference counted.


• The final tally would put the top two finishers, Smith and Doe, against one another. With 11% of the vote left to spread, one candidate would reach a 50% majority.

Andrew Allison, one of the co-founders of the Austinites for Progressive Reform PAC, the organization that submitted the petition to the clerk, said he believes ranked-choice voting is better than the current system in “every way.” He said the system could also lead to less vitriol on the campaign trail and wider satisfaction with the chosen winner.

“As a candidate with ranked-choice voting, you would love to be somebody's first choice. But if you're not, you want to be their second choice or their third choice,” Allison said. “That leads to coalition-building and trying appeal to your opponent's supporters, not demonizing your opponent. It results more in a campaign about issues and trying to find issues that attract a majority of voters support as opposed to trying, through negativity or cynicism, to carve out a small piece of the electorate big enough to get yourself into the runoff.”

Is it allowed?Whether ranked-choice voting is allowed or runs against the state’s constitution and election code depends on interpretation.

The city of Austin Law Department stated its belief that the ranked-choice voting system is not allowed under the state’s current rules. A spokesperson from the city’s legal team told Community Impact Newspaper that ranked-choice voting is “indeed in conflict with state laws and most likely the Texas Constitution.” Even if voters support it, the department said changes at the state level would be required.

“Ranked-choice voting would not be implemented in Austin until or unless the Texas Constitution was amended and/or until the state Legislature amended the Texas Election Code to allow it,” the spokesperson said.

Allison and Jim Wick, another co-founder of Austinites for Progressive Reform, maintained that there is no state law or case law that explicitly prohibits ranked-choice voting.

All interpretation of the system relies on a July 23, 2001 letter from then Texas Secretary of State Henry Cuellar to Austin City Attorney John Steiner.

In the letter, Cuellar stated that what matters is whether the term “majority," as used in the Texas Election Code to be the criteria needed to win an election, is broad enough to include “preferential majority.” Cuellar said the term “preferential voting” was once in the Texas Election Code as an approved alternative to the existing system but was deleted from the code in 1985 during a “substantive recodification.”

“It is our opinion that the meaning of the word ‘majority,' as the Texas Legislature has used it in the [Election] Code and as it has been interpreted by the courts, is majority in the ‘classic’ or ‘traditional’ sense, i.e., a majority vote consists of more than half of the original votes, as cast and not re-assigned by the voter's secondary or tertiary intent, and if no candidate receives more than half the votes, a runoff election is required,” Cuellar wrote. “Barring a conflict with the Texas Constitution, the Texas Legislature would need to amend state law, or to repeal the statutory conflict, in order to restore the city's discretion to adopt preferential voting.”

Wick and Allison said that although Cuellar's letter is an opinion from the secretary of state, it is not a legally binding decision nor an interpretation by the courts. If the petition is validated by the Austin City Clerk and the question is approved in May by voters, Wick said he hopes the city will implement the rule and spur a lawsuit that would result in binding case law or inspire the Texas Legislature to make any necessary changes to allow the system of voting.

However, this all will be moot unless the petition submitted by Austinites for Progressive Reform is validated and, after that, the question is approved by a “traditional” majority of Austin voters May 1.