Ranked Choice Voting

As I write this, Indiana’s legislature is close to passing Senate Bill 12, a measure that would prohibit the use of ranked-choice voting in Indiana. The bill was co-authored by Republicans who are evidently worried that the state might use the system some day in the future (it is not in effect now and has not, to the best of my knowledge, been proposed). 

What, you may be asking, is ranked-choice voting, sometimes called “instant runoff” voting?

It’s simply a system that allows voters to rank candidates in their order of preference, rather than forcing them to select just one. In other words, voters rank the candidates–first choice, second, and so on. The vote count begins with the first choices; if one candidate receives over 50%, that’s it. Election’s over. If no candidate receives a majority, the candidate with the fewest first-choice votes is eliminated, and his or her votes are reassigned to the remaining candidates based on each voter’s next highest preference. The process of eliminating and redistributing continues until a single candidate achieves a majority of the remaining votes.

Organizations concerned with fair elections support ranked-choice voting. Indiana’s League of Women Voters supports it because–among other things– the system would “give voters meaningful choices to reduce the toxicity of negative campaigning.” Indiana’s Common Cause supports ranked-choice voting because the organization finds the system makes elections more equitable, allows voters to choose among more diverse perspectives, and provides more choices.

The legislators opposed to the system insist it is “too complicated”–that there is something “unAmerican” about allowing voters to say, in effect, “my first choice is candidate X, my second choice is candidate Y, and if neither of them wins, I suppose I can live with candidate Z. Evidently, they think voters in states that currently use the system, like Maine and Alaska, are smarter than Hoosiers. (Given some of the people we’ve elected, maybe they have a point.)

Interestingly, according to Governing Magazine, in 2020, the state Republican Party used the method to select delegates.

In an article on the subject, Indiana’s Capital Chronicle noted that the award of the Heisman Trophy is the result of ranked-choice voting. The article explained why using that method ensures that the candidate with the most support wins.

This is the same reason why so many states and localities have adopted ranked choice voting for elections for governor, state legislature, city council and other offices. It is an incredibly useful tool for voters in any race with more than two candidates. 

It ensures a majority winner in a crowded field. Voters can choose the person they like best, without fearing that their vote might go to a “spoiler” and help elect the person — or the quarterback — that they like least.

The article then turned to Indiana Republicans’ current effort to ban the system, pointing out that in a state where some 3% of voters are libertarians, ranked-choice voting would mean Republicans would no longer need to worry that a Libertarian candidate might tip the race to the Democrats — and Libertarian voters could support the candidate of their choice without that fear, as well.

Why prevent Indiana and its localities from giving voters more choice? The bill’s sponsors suggest that ranked choice voting is confusing, and that they want to protect Indiana’s current election system. But every poll conducted after a ranked choice election shows that huge majorities of voters — often even bigger than Mendoza’s Heisman margin — like it, find it easy to use, and want it expanded to other elections. 

Beyond the flaws of SB12 are other questions: Why, in a short session with limited time to address other pressing issues, has the GOP super-majority decided to spend time banning something the state isn’t doing anyway? Why is our legislature overruling– in advance–the ability of Indiana’s local jurisdictions to adopt a voting measure used in hundreds of cities and counties across the country?

As the Capital Chronicle quite properly concluded, we need to reject this nonsensical ban. “Ranked choice voting produces more positive campaigns, majority winners, and puts an end to spoilers. It’s proven and it’s easy. If Indiana’s political parties, cities and towns want to adopt it, they should have that right.”

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Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.

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