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VOL. 132 | NO. 245 | Tuesday, December 12, 2017

Election Commission Goes to Court in RCV Controversy

By Bill Dries

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The Shelby County Election Commission is going to court to settle conflicting legal positions over whether ranked-choice voting can be used in the 2019 city elections. (Daily News/Andrew J. Breig)

Shelby County Election Commissioners are going to court to settle a conflict over ranked-choice voting.

The five-member commission voted unanimously Tuesday, Dec. 12, to file suit against the state election coordinator and the city of Memphis in Davidson County Chancery Court.

The purpose is to get a ruling on whether the use of RCV via a 2008 city charter amendment is valid or if a September opinion from state election coordinator Mark Goins saying there can be no use of RCV is valid.

The charter referendum is binding on the election commission and so is the legal opinion from Goins.

“I would just like clarity,” said county elections administrator Linda Phillips. “My nightmare scenario was to plan to do an election one way and then be told four months out to do it another way. I have no opinion on it. We administer elections according to the law and there is a conflict there.”

Attorney John Ryder, representing the election commission, said the legal action amounts to the election commission asking “Someone tell us what we can do.”

“On the one hand the election commission is required to administer elections for the city of Memphis, in accordance with their charter. On the other hand the election commission is required to follow the guidance of the state coordinator of elections who also has the authority to approve or disapprove ballots,” he said. “That puts the commission in an awkward position of getting conflicting instructions. … The legal remedy for the commission is to file what is known as a declaratory judgment action.”

Ryder said even if the court rules there can be no use of ranked-choice voting, a November 2018 charter referendum seeking to repeal RCV would still go forward. The Memphis City Council gave final approval to the referendum ordinance earlier this month.

Ranked choice voting would apply to races for the seven single-member districts on the 13-member city council. If no candidate in a single-member council district race gets a majority of the votes cast, the race goes to a runoff in the absence of ranked-choice voting. With RCV there is no runoff. Instead voters on election day rank their choices of council contenders by preference. And instead of a runoff, there is a second vote count that adds in the second preferences of those who voted first for the candidate that has the lowest vote total in the race. That process of eliminating the candidate with the lowest vote total continues until a candidate has the votes of a majority of the citizens who voted.

Memphis voters approved ranked-choice voting in 2008 as one in a series of proposed city charter amendments. But local election officials at the time said the touch-screen voting machines used in Shelby County could not accommodate RCV.

Phillips became election coordinator in 2016 and found a way to accommodate ranked-choice voting on the machines by repeating the list of candidates in a race side by side across the screen. With that, she said the charter required the use of the system in the 2019 city elections – the next city elections scheduled.

As the repeal referendum was making its way through the city council, Phillips continued preparations. Goins sent Phillips a letter in September saying, “The current laws of Tennessee do not appear to allow this system of ranked-choice voting.”

Goins cited the lack of a state-approved method for a vote count of second and third preferences.

Before last week’s approval of the repeal referendum on third and final reading, city council attorney Alan Wade said his interpretation was that Goins had not yet formally forbid the use of ranked-choice voting.

But in clarifying Goins’ September letter, Adam Ghassemi, communications director for the Tennessee Secretary of State’s office indicated that would have been the next step when the election commission sent the 2019 city ballot to the state for approval if not before then.

“Since the proposed ballot layout is inconsistent with state law, the division would not be able to approve the ranked-choice ballots for use in 2019,” Ghassemi told The Daily News in a November email.

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