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VOL. 132 | NO. 247 | Thursday, December 14, 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 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 Shelby County Election Commission is seeking a court’s declaratory judgment on whether to proceed with or drop plans for ranked-choice voting. (Daily News File/Andrew J. Breig)

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 2008 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,” Ryder said. “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. 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.”

Even if the court rules there can be no use of RCV, a November 2018 charter referendum seeking to repeal RCV would still go forward, Ryder said. 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 city council districts. If no candidate gets a majority of the votes cast, the race goes to a runoff in the absence of RCV. 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 another vote count that adds in the second preferences of those who voted. That process eliminates candidates with the lowest vote total and that process continues until a candidate has a majority of votes.

Memphis voters approved the RCV method of electing those council seats 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 in recent weeks, 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 the next step would be forbidding RCV.

“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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