VOL. 132 | NO. 227 | Wednesday, November 15, 2017
State Elections Coordinator Says Ranked-Choice Voting Not Permissible
By Bill Dries
The Tennessee elections coordinator has told Shelby County election officials that it is illegal to use ranked-choice voting in an election because there are no state guidelines and procedures in place for counting second- and third-preference votes.
Mark Goins said that in a Sept. 26 letter to Shelby County Election Commission Administrator Linda Phillips, but the process of adopting RVC to avoid runoff elections in city council races has continued to move forward.
RVC, as a method of voting for city council elections, was approved by voters in a 2008 referendum, but has never been acted on because local elections officials said the touch-screen voting machines used in local elections could not handle such a method.
Phillips, who came into the position of elections administrator about a year ago, found a way to modify the ballot so the touch-screen machines could accommodate RVC voting and conform with the terms of the 2008 charter amendment.
But the state is expressing doubts about that.
“When considering how the election commission would count the votes for the candidates, a number of issues arise,” Tennessee Elections Coordinator Mark Goins wrote to 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 give 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 candidates with the lowest vote totals would continue to be eliminated until someone got a majority of the votes among voters who participated.
It would eliminate the city runoff provision. Currently the seven single-member city council district elections are the only contests requiring a simple majority of the votes cast. All other positions are elected based on whoever gets the most votes, whether that is a majority or not.
Phillips found that by duplicating the list of candidates in a race three times across the ballot face, the current election machines could accommodate RVC voting and has said the election commission is bound by the 2008 charter amendment to move ahead with that method 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 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.
Former Shelby County commissioner and University of Memphis Law School professor Steve Mulroy, who pushed for RCV in 2008, 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 that followed, 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.
Mulroy said Goins’ opinion “is just another example of Nashville telling us that we don’t have the ability to do what we want.”