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VOL. 132 | NO. 226 | Tuesday, November 14, 2017

Tennessee Elections Coordinator Says Ranked-Choice Voting Not Permissible

By Bill Dries

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The Tennessee elections coordinator told Shelby County’s administrator of elections in September that it is illegal to use ranked-choice voting anywhere in the state because there are no state guidelines and procedures for counting the second and third preferences of voters to avoid a runoff election.

“When considering how the election commission would count the votes for the candidates, a number of issues arise,” Tennessee Elections Coordinator Mark Goins told Shelby County elections administrator Linda Phillips in the Sept. 26 letter. “The process of manually distributing votes and having multiple rounds of reallocating votes to determine the winner is not authorized by any of the current statutes in Tennessee law.”

Ranked-choice voting, which is also known as instant-runoff voting, would replace a separate runoff election in single-member council district races by giving voters the option of selecting a first, second and third preference among the candidates on the ballot. If no candidate got a majority of the votes cast with a first count, the candidate with the least amount of votes as the first preference would have the second choices on those ballots distributed among the other contenders.

The lowest vote total candidate would continue to be eliminated until someone got a majority of the votes among the voters who participated.

It would eliminate the city runoff provision.

Shelby County Election Commission officials originally said, even before voters approved the charter amendment, that the touch-screen voting machines used in Shelby County then and now could not support ranked-choice voting.

Phillips found a way to do that earlier this year with by duplicating the list of candidates in a race three times across the ballot face. With that, she said the election commission is bound by the terms of the 2008 charter amendment to move ahead with the use of the voting system in the next city elections in 2019.

“Although it is commendable that you have found a process which supports a ranked-choice voting system,” Goins wrote Phillips, “I must advise that … the current laws of Tennessee do not support and allow this system of ranked-choice voting.”

City Council member Edmund Ford Jr. who is proposing a November 2018 citywide referendum on a charter amendment that would repeal the ranked-choice voting charter amendment of 2008, said the letter was sent before the council got an explanation of RCV in October.

Ford also cited June 2015 minutes from an Election Commission meeting in which commission attorney John Ryder said RCV was in conflict with state law.

“It seems that the Shelby county election commission and others have known for over two years that instant-runoff with two opinions is not permitted without a change in state law,” Ford said. “Which leads me to my question of conscious disregard for the law.”

Ford said at least for now he will continue to push for passage of the repeal referendum which is up for the second of three readings at the Nov. 21 council meeting.

“When you have two opinions from those who say that it violates state statues and that information has been out there for the last 10 years and nothing has happened during that time in order to remedy those conflicts, I think this legislative body is going to do the right thing on second and third readings so that we can adhere to state law,” Ford said.

Former Shelby County commissioner and University of Memphis Law School professor Steve Mulroy, who pushed for RCV in 2008 before the Memphis Charter Commission that put that charter amendment in a set of charter amendments to a citywide vote, said Monday that Goins’ letter isn’t binding on the Shelby County Election Commission.

“It’s not a binding court order that forbids the elections administrator from continuing,” he said. “Unless or until there is a competent authority that orders here to cease and desist implementation will continue. If it needs to be, there possibly will be a court challenge on that because we are pretty confident that there is nothing in state law that forbids the style of implementation that elections administrator Linda Phillips is undergoing.”

He also produced a 2008 legal opinion from Ryder and County Attorney Brian Kuhn that says RCV is permissible for the single-member district council races.

But in the conclusion of that legal opinion, Kuhn and Ryder also say “an amendment to the city charter would be necessary to provide for the ‘instant’ nature of the runoff, eliminating any requirement that the runoff be held at least 30 days after the general election.”

Goins, in his September letter, says despite the 2008 charter amendment, the runoff provision language it was meant to replace “has not necessarily been repealed and may represent a conflict within the city charter.”

Goins also says that is a question the state does not have the authority to resolve.

Ford said council attorney Allan Wade has told him the RCV charter amendment should be repealed but has not issued a formal legal opinion.

“I think we need to get that house in order first before we proceed,” Ford said. “It appears as if the former charter commission failed to have the public discourse and debate as well as the legal vetting that usually precedes referendums.”

Mulroy linked the opinion from Nashville to obstacles the local effort to remove Confederate monuments is facing in state law.

“This is just another example of Nashville telling us that we don’t have the ability to do what we want,” he said. “Time and time again Nashville steps on our home rule. This is another attempt to do the same.”

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