Does Ranked Choice Voting Help or Hurt?

Event Video
Ranked choice voting, also known as instant runoff voting, is a voting method where voters select several candidates in the order of preference on a single ballot. Ranked choice voting has been used by certain states, cities, and political party primaries. Recently, a series of jurisdictions have implemented bans on ranked choice voting. A panel of experts, which includes an attorney, economist, and political scientist, will analyze ranked choice voting and present a diversity of perspectives on whether ranked choice voting should be implemented in American elections.
Featuring:
- Lisa L. Dixon, Executive Director, Center for Election Confidence
- Dr. Martha Kropf, Professor, Political Science and Public Administration, University of North Carolina at Charlotte
- Walter K. Olson, Senior Fellow, Cato Institute
- (Moderator) Maya Noronha, Civil Rights Attorney
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Event Transcript
Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call. Today, May 23rd, 2024, we're delighted to host a discussion on ranked-choice voting, does it help or hurt? My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as the Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, we'll keep our introduction of our guests today brief, but if you'd like to know more about any of our speakers, you can access their impressive full bios at fedsoc.org. Today we're fortunate to have with us as our moderator Maya Noronha, who is a civil rights attorney who volunteers on the Free Speech and Election Law Practice Group Executive Committee. She has experience practicing political law at BakerHostetler LLP, where she focused on redistricting, election integrity, and campaign finance law. She has advised officials elected to, or candidates for President, Senate, the House of Representatives, governor, state legislature, city council, and a magisterial district judge. And I'll leave it to her to introduce our panel. A last comment, and then I'll get off your screens. If you have any questions, please submit them via the question and answer feature find at the bottom of your Zoom screen so they will be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today, Ms. Noronha, the floor is yours.
Maya Noronha: Thanks, Chayila. We have three speakers today. First, Dr. Martha Kropf, who's a Professor of Political Science and Public Administration at the University of North Carolina at Charlotte. She has a PhD in Political Science and researches elections and election reform, voting and political mobilization. Our second panelist is Walter Olson, who's a Senior Fellow at the Cato Institute's Robert A. Levy Center for Constitutional Studies. He has advised many public officials from the White House to town councils, and served as chair of the Maryland Redistricting Reform Commission. And finally, Lisa Dixon, who's executive director of the Center for Election Confidence. She previously practiced election law at Holtzman Vogel. So I'll turn over to the panelists with our question: Does ranked-choice help or hurt? First, Dr. Kropf?
Dr. Martha Kropf: I want to start by not answering that question, but simply giving sort of an overview of what ranked-choice voting is. Essentially ranked-choice voting is a system wherein people are allowed to rank candidates in the order of their preference for those candidates. It could be used in single member contests or in multi-member contests. Where the real interesting point comes in is counting the ballots and tabulating the ballots. That can be very different and difficult and can vary across different ways of doing ranked-choice voting. But in most of the locations where it's used basically in a single member race, for example, if a person gets 50% or more of the number one votes, then that person is elected, the same as under what you might call a normal system or a plurality system, which is generally how we think about electing candidates where we vote for one candidate.
If that person, if one person doesn't get 50%, then the lowest ranked candidate, usually the lowest ranked in first place votes is out, and then they tabulate the votes again until somebody gets 50% of the votes. On its face. It's not very complicated, but I think you'll see throughout here that there can be some complications to it and definitely worth talking about and thinking through. So two states, Maine and Alaska have established that they use it for their federal contests. Another state, Nevada is, well, I guess thinking about it, they have a second election of a two-part election sort of a process where they could add it to their constitution. Many municipalities all over the country use it, most prominently, some in California, Cambridge, Massachusetts, and some states have chosen to make it illegal. So with that, I'll pass it on to who's next, Mr. Olson?
Walter K. Olson: Well, thank you. So Dr. Kropf has given you the mechanics and I want to move on to why rank choice voting has been proposed over the centuries. This is a very old kind of reform, the problems that it is seen as addressing, and a little more on the variations between different kinds of ranked-choice voting. I learned about ranked-choice voting originally studying economics as an undergraduate many long years ago, and it's one of the reasons why many people in the Federalist Society might also have initially encountered it, is because it's always been popular with economists who noticed that the first-past-the-post system that we're familiar with - the plurality system - often does really a rather poor job of translating the preferences of voters into the actual outcome of who wins. And you can see this in a couple of classic situations.
Take the spoiler situation, you have maybe three candidates, two of them are from one side, one of them is from the other, but the votes are split in such a way that a generally unpopular candidate - or one who represents the less popular view in the community - gets through with 41%. The other two are split. And the question has always been, isn't there something we can do to improve the likelihood that the views of the voters will be more accurately transmitted? Now, one obvious way of doing that is a runoff system and the simplest form of RCV, the one that has most widely been adopted by American municipalities and states is often called an instant runoff. It operates exactly as would a series of runoffs if you had time to do them all. We're familiar with the "top two" runoff used in many states and cities in which whoever makes it to the top two places running for mayor or whatever it is, then appears on a second ballot a few weeks later. Ranked-choice voting, according to its advocates, improves on that in a couple of ways. First, you don't have to get everyone together for a second election, reassemble all the volunteers, reserve all of the church halls, do all the additional campaigning and so forth.
You can ask people at the same time they cast their initial vote, how would they want a runoff to turn out? And the other thing is that because you can do it in more than one round, it is possible that you can get more refined and subtle results. In other words, there might be more than just three candidates who have a serious chance. And by going through the different layers of candidates, you might find that someone who is number three initially is actually the most powerful. So instant runoff is mostly what people will be debating when you hear about proposals for RCV around the country. But it's important to know about the other variety that Dr. Kropf touched on. And this often takes the form of multi-seat races in which, if you think about it, you can't quite do the runoff thing. You could do it for individual seats, but if five city council members are all running at-large against each other, or if there is a five member legislative delegate district, no longer common in the US, but it used to be fairly common, it can't work that way, so you are then put over to other procedures. Now, many of those procedures - and this is popular overseas in countries like Australia and Ireland which have had RCV for a century - many of those wind up with a sort of simulation of proportional representation in that a minority point of view or perhaps a minority ethnicity or whatever it is, that wants to concentrate on at least getting a couple of its people elected can get a minority representation in a way that they really can't necessarily in our current system. So think about that. Advocates of proportional representation want versions of RCV that serve their purposes, and that's a different branch raising different issues than instant runoff.
I know that sounds complicated, but it's just worth keeping in the back of your mind. Ranked-choice voting has been increasingly popular in its instant runoff form in recent years, and I'm going to venture a theory as to why that is. In the background is probably the idea that the American political system is showing some strands. It's showing strands of candidate quality, it's showing strands of public acceptance, of the fairness of things. But there's a practical reason why it has particularly come forward in cities that are often one party cities or in places like Montgomery County, Maryland near where I live, that are essentially one party readouts, which is in those places, the elections that matter for mayor, county executive are decided in the Democratic primary. Now Montgomery County, which is an extreme case of somewhere where it seems almost everyone was class president for their high school and everyone wants to run for office. They've had 21, 27, 31 people all running for single offices. And of course, the more that happens, the more danger you are in of someone slipping through because they've got a highly-organized faction behind them who in fact is not the candidate most pleasing to a wider coalition.
So that I think more than a particular left-right ideology, which I'll touch on in a moment, I know we'll talk more about it, but I think that's one reason why the San Franciscos, the Minneapolis, the Seattles, the Portland, Oregons have been drawn to this is that they have often seen - and just to touch a bit on the ideology - they often find that it's the most ultra-progressive side that is most ultra-organized and gets its person through because they have message discipline as far as only running one candidate. We'll talk later about all the other possible ideological implications. They are rich and they deserve to be talked about. But that's one explanation of why when we now talk about new adoptions of rank choice voting, we're often talking about progressive kinds of places, the Burlington, Vermonts and whatnot. I think I'm probably done with my time or do I have more?
Maya Noronha: Ms. Dixon?
Lisa L. Dixon: Well, thank you to the Federalist Society for having this forum on ranked-choice voting. It seems like it's an issue that's popping up everywhere recently, as Walter said, so we'll I'm sure talk more about some of the benefits and disadvantages, but I want to run through some of the concerns and problems that localities and states need to wrestle through as they think about whether they're going to adopt a ranked-choice voting system. The biggest problem with ranked-choice voting is so-called "exhausted ballots" or ballots that are not counted in subsequent rounds of counting. Any voter that doesn't rank every candidate on the ballot, whether for reasons of conscience or confusion or lack of information, or simply lack of time filling out the ballot, that voter risks having their ballot "exhausted" or removed from counting in rounds after the first round. And so that ballot doesn't figure into the final tally of votes.
Now, there are studies showing that ballots of minority, elderly, young, and lower educated voters are exhausted at higher rates than those of white, middle-aged higher educated voters. This is for a variety of reasons, but this is a serious problem for RCV to wrestle with. It diminishes the electoral influence of those groups that we generally want to ensure are protected in our electoral system to ensure their participation. Now of course, ballot exhaustion can be the result of voter choice. They're simply choosing not to rank every voter, or excuse me, every candidate in the election. And just like under a plurality system, a voter may choose to vote for a candidate who has no reasonable chance of winning, but consistently the rate of ballot exhaustion is higher with ranked-choice voting elections than the rate of votes for hopeless or no-chance candidates in our normal plurality system.
Some of this ballot exhaustion is not the result of voter choice. There's a higher risk of ballot error, ballot marking error, in ranked-choice voting ballots because the ballots are just more complicated and the time to complete a ballot will make more people want to vote by mail. And when voters vote by mail, there's not a chance for - or there's a limited chance - for ballot correction, whereas at a polling place, the counting machine will often spit it back out at you and you can fix your ballot right there in the polling place. And then also one concern with exhaustion is one thing that ranked-choice voting advocates say is that this creates - this system of voting creates a broader coalition, a better majority of people to come together to actually form a consensus around one candidate or group of candidates. But because some ballots are exhausted - taken out of those final rounds of counting - the majority created can be a faux majority, generally between 3 and 27% of ballots are discarded.
So the final winner has 50% plus one at least of the remaining ballots, which more often than not is not a plurality of the original number of ballots cast. Everyone likes to talk about the Alaska Special Congressional election in terms of rank choice voting, where Democratic candidate Mary Peltola won with just 48.4% of the total votes cast - 11,222 ballots were exhausted after the first round of tabulation - and so, Peltola won 51.5% of the remaining votes. And there are some other issues we can get into in Q&A, but I think that's the biggest issue with ranked-choice voting, and something that the legislative and representative bodies of states or localities considering this have to really wrestle with. And how do they mitigate these problems? How do they educate their voters? And one thing we've seen also with rank choice voting is a lot of the implementation is often delegated to the election official - the administrative agencies - to work out these problems. So there's less accountability in the case there are problems with the implementation. So I'll turn it back to you, Maya.
Maya Noronha: Thanks. So today in May 2024, why is ranked-choice voting such a big issue? Why are states and localities implementing it or passing bans on it and suing over it? So Walter, how would you respond?
Walter K. Olson: Well, first I'm glad that Lisa Dixon brought up something that I had completely omitted in my talk, which is the hopes of many advocates of RCV that it will change the style of campaigning, that it will change the approach to politics and perhaps bring in new candidates who will campaign differently. And I want to just touch on that for a moment and then I'll get to some of the concerns. Part of an RCV campaign typically involves the candidate's awareness that they would like to get second choice votes or anything but last choice votes from the candidates who are not in their corner, who are primarily committed to someone else. And that encourages two things - that encourages campaigning across communities, so that even if a particular part of town or a community is known to be locked up by its favorite candidate, you still want to go there, shake hands, get to know people's concerns in order to try to get second choice votes from that community.
The other thing is that in the relationships between the candidates, you might not want to come out and blast that other candidate in the most negative possible way because that's one of the ways in which you might lose their followers and get them mad enough to not give you second choice votes. And some of this also ties in - and I'd love to pursue further the question of exhaustive ballots - why people - sometimes by accident - but very often purposely don't vote for all the positions. They think, okay, I can live with numbers one and two, I refuse to cast even a third place vote for number three. That definitely happens. It contributes very much to the issue of exhausted ballots. I would just say to sketch out my response that it's traditional in regular voting too. If you see in a runoff, for example, a lot of people who supported the third place candidate just don't show up.
It's one of many reasons why runoff turnout is very often just terrible, and why traditional runoffs - in-person runoffs - are far worse as far as participation levels go because they often have such a sharp dropoff from the primary itself. So things to keep in mind. But as far as moves to ban it, there is no getting around the fact that an issue that even a few years ago was not particularly polarized and politicized in red-blue terms. It was certainly a political issue, but it was not one where people had chosen red-blue sides. It has increasingly become one, and I won't go by every stop on the train that got us here. Certainly the Alaska race in which Sarah Palin lost was a key stop and some point to the earlier main experience with the house seat, although I find most people don't particularly know about that but do know about the Sarah Palin one. I wish it weren't this way for many reasons, but it is how it has turned out. And so you wind up with our RCV along with some other election reforms being more "left coded", and I sit here being amused because if there is anything that I have never been in my life, it's left wing.
(Laughs) And yet there is this kind of, "Hey, choose teams. Pick your team." Well, no, I think in a way that it brings us full circle because part of the idea of ranked-choice voting is that there are gradations. When I look at a ballot, a ranked-choice voting ballot, which I've never had a chance to actually use for anything more serious than cookies - we did a rank the cookies party simulating it - but when I look at it, I think this does force me to accept the idea that some of the candidates I generally disagree with are still closer to me than others. Some of them I have to admit are competent - even if they would never ever be my first choice or second choice - and it gets you to think about the fact that your opponents are not a unified camp. Some of them are in fact closer to where you could see yourself getting along okay if they were the ones elected. I find that very constructive. And so I regret the fact that we are getting more polarized every month on this.
Dr. Martha Kropf: And it is very interesting as well that exhausted ballots is something that a lot of people talk about, but there's always going to be someone who either chooses not to vote in a particular contest, and sometimes that can be very racially-driven or driven for a variety of reasons that we might say are inequitable, but the fact is somebody loses in a contest and we could argue that those are not losing ballots. I mean, I do think that you're absolutely right that the idea of exhausted ballots is something that we need to pay attention to. One thing though, that there is a concentrated effort on is making the ballots easier to use. I think that you've seen some of the ballots probably, and there's been research on ballots. I myself have done research on ballot design. You'd be shocked at the number of things that make it difficult to use a ballot, and there's an organization called the Center for Civic Design that basically says usability, It's a big democracy issue because we want to make sure that people are casting ballots for whom they really want to choose, and sometimes the ballot complications can make that difficult. So I mean, I think in those terms that's something that has been improved and can continue to be improved.
Lisa L. Dixon: I think one reason we're seeing the efforts to ban RCV in a lot of states is because of the example of Maine and Alaska, and that's elevated it in the public interest and public discourse. Some localities have used it for a hundred years at this point, but people on one side of the country don't necessarily care about a local election on the other side, but a statewide election, members of Congress, people pay attention to that, and they saw - to go back to Alaska - people have seen that in Alaska, it costs a lot of money to implement that, and that's something that people are very concerned about in election spending, having money to spend on election administration, it costs over $11 million to implement RCV and to educate the public. Alaskans have actually put it on the ballot this fall to repeal RCV, I think largely because of that large expenditure and seeing the process of implementation. Now, I think Walter's right that most people don't pay as much attention to Maine where it wasn't - I think it was adopted a lot more smoothly than in Alaska - but even there, Maine sent an 18-page voter guide to the voters to help them understand the new system. So there's definitely a learning curve for voters as they start voting in an RCV system.
Walter K. Olson: I think there's a lot of consensus among the three of us that the public education element, especially at launch, makes a big difference. Now after a round or two, I think there is survey evidence to indicate that even in the places where it initially created some confusion by the second cycle, people are generally, but that first cycle is all the more important for that reason. You do have people, and this is leaving aside possible language barriers for example, or people who might be familiar with - might have encountered other voting systems - but simply something like, well, they're both my favorite. I mean, imagine if someone asked you your favorite kid, "No, I love them both equally. Let me put them both at one." Well, that of course is an error that will get your ballot thrown out at least for that race. And so simple mistakes that you might be surprised how many people are tempted to make them, you want to educate against at the beginning. That said, the general survey experience, even after first adoptions in cities around the country is that people don't want to go back to the old way - that they enjoy the additional choice and they feel they understand the system, but again, they -
Dr. Martha Kropf: They understood the system, right? The survey data does show that.
Walter K. Olson: Well, you want people to understand the system before they fill out their ballot, not just realize afterwards, "So that's how it worked. I'm glad that I didn't blow it that badly", but yeah, that makes a difference in satisfaction and it can make a difference in tabulation. It can generally make a difference in the success with which it's launched.
Dr. Martha Kropf: Walter, let me throw out a point that I think that people who advocate for this aren't thinking very much about, and that is the local election officials that are required to implement this. Generally speaking, the research is not encouraging for how, I don't know excited, that they are about this, and I think part of the problem is that the people that have to explain these decisions and the process after the ballots are cast to the public aren't as articulate as you are or aren't able to explain to the public why this works or doesn't, one, but two, there's also simply administering it is a little more difficult. It requires some changes to voting equipment. I mean, there will be startup costs as Lisa definitely mentioned, and as you really supported, I mean at first you really do have to educate people, but what about the election officials that have to implement it?
Walter K. Olson: And Lisa, if you want to jump in at any point, please do. Otherwise I'll answer because this has been very front of mind for me. I've been involved with the recommendations by a charter review committee in Frederick, Maryland near where I live, to have the city adopt it, and the election administrators in fact are the most influential voice saying, go slow. Not necessarily don't adopt it, but phase it in slowly with plenty of time, so that training of our people training - so that relationships with vendors can be worked out very considerably in advance. Now, if there's anything we know about reformers, and I'm afraid sometimes this even includes reformers like me, it's that we don't want to wait.
Dr. Martha Kropf: (Laughs)
Walter K. Olson: We don't want to wait a couple cycles until all the little logistics are worked out as far as are the vendors able to serve this system accurately, have all the volunteers been trained and so forth. We want it now, and I urge as part of the general humility, which I find myself urging every 10 minutes for reformers generally, please understand that you're going to get the best chances of having it work well if you listen closely to your election administrators and probably allow at least twice as much time as you hoped it would take.
Lisa L. Dixon: One thing building off of that, another big concern for election officials at all levels right now is how long it takes to get election results out because that's a concern of the general public and they get a lot of heat if we don't. Well -
Dr. Martha Kropf: But those are the questions they already get, right?
Lisa L. Dixon: Right. And ranked-choice voting can delay election results. It doesn't necessarily have to, but we saw results took two weeks in Alaska, the Alaska special Congressional election. It took a whole month in the 2021 New York City Democratic primary. So the larger the jurisdiction, the greater chance that there will be some kind of tabulation issue that will delay results or the more rounds of counting you have to go through, the longer it takes sometimes - especially for a statewide use of RCV - ballots have to be counted at the local or precinct level, then sent up to a central tabulator to run the ranked-choice voting calculation, then sent back down if there's another round. And that can go back and forth and all of that takes time. Sometimes the machines need to be recalibrated for additional rounds. There are all kinds of issues like that that can delay the results and that I know it's definitely of concern to election officials. They want to get accurate results out quickly so that the public knows who won the election.
Walter K. Olson: This is something that I also urge people to look at because it is true that in two of the best known implementations, Alaska and New York City where ranked-choice voting was adopted, those were two painfully slow - and in New York City's case - painfully dysfunctional systems to start with, and Alaska for cultural reasons of its own - often related I think, to the fact that they have the greatest wide-open spaces of anywhere - Alaska was already at the very, very, very liberal end of allowing ballots to drift in days if not weeks later, and not enforcing deadlines tightly the way a state like Florida does. Now, it happens that I'm a hawk - if you want to call it that - on speed. I like the Florida system. I think that it's important as an ideal and achievable as a reality that we all, not just Florida, get most of our results by election evening.
And so if I were there in the room with Alaska and New York City, of course they wouldn't listen to me, but if by some miracle they listened to me, I would've said, "Ranked-choice voting is a good idea, but lest it make your slow performance even worse, please learn from some of the other states. Take advantage of technologies if necessary, be a little bit less permissive about the deadlines by which people have to get in certain formats of voting." It's not what you're going to hear from our progressive friends who want everything, all the different dials to be set at the most liberal setting, but that doesn't work well anyway, totally aside from RCV, and if you put them over at a setting that will get you prompt results, then yes, as we know from some of the implementations of it, you can also get those RCV results same night if you've set the dials correctly in favor of promptness and what I call "voter responsibility", which is that the voter should recognize that it's in the interest of the public not to wait until the very last minute and pop the envelope into the mail on election morning or something. It just isn't in the public interest.
Maya Noronha: Well, I encourage our listeners to enter in questions and answers. We already have a lot appearing, so I'm excited to turn to them. So would rank choice voting help create more choices for voters if polls show that they don't want either of the party-endorsed candidates from our two party system? What does the research say? Dr. Kropf?
Dr. Martha Kropf: It does create more choices and some research even indicates that it allows more diversity of candidates to appear. It's definitely a system that's been used to try to allow more representation in terms of it's, it's definitely a system that helps with that, and I think Walter probably has some things to say about that, but you could also see in some races, so say Minneapolis in what, 2013 or so, they had something like 36 different candidates. That was a lot of choice, but of course the problem with having that much choice is that there is a certain point where there's too much choice. Now, certainly some of the surveys that Walter referenced were done in Minneapolis and some of the places where they've had many candidates on the ballot and people were still happy and didn't think it was that difficult, but it can be. And perhaps one thing that we could do is more stringent ballot entrance requirements to try and keep from 30-some candidates being on the ballot and not overwhelming.
Sometimes there's too much choice and certainly some of my research has shown that over time, looking at Florida, and when we were talking about how bad punch-card ballots were, well, it turned out my research was showing that there's a certain amount of candidates that's too many candidates and then people start rolling off or doing residual votes, and I'm sure the same thing could happen - that is where they mess up their ballot or they fail to vote for the contest or have some sort of problem because there were too many candidates on the ballot - and that can be a problem and maybe it's something we need to consider going forward with ranked-choice voting.
Walter K. Olson: Yeah, I would add to that the question kind of invites being broken down into a couple of sub-questions as far as the additional choices that you make at the first, and one of the simplest questions is ranked-choice voting going to change the result very often or is the same person going to win? And the first best guess is that it doesn't seem to be changing who wins very often. Now, it doesn't rule out that it may be having other effects, effects on who runs, effects on how they campaign. Someone who is smart enough to win under plurality first-past-the-post may adopt a slightly different strategy and also come through first under ranked-choice. So it leaves somewhat unresolved the question of whether not having many first place finishers overtaken, which is what they find, not many first place finishers are overtaken.
It still might be changing how politics works in those places. So that's one thing to remember. Second thing is, is it changing the voice that people have? And I will speak up here as someone who has cast more than a couple of third party votes over his adult life, and I suspect the Federalist Society is probably overrepresented in people who have chosen to cast third party votes. And let's face it, we knew in essentially every case that a third party candidate wasn't going to win. We wanted to send a message that Gary Johnson, or whoever it was, was closer to representing our views. Now, I think that ranked-choice voting in many ways is wonderful for people in the frame of mind of being tempted by third party candidates because it really does allow them to register the message by voting their first choice for the Gary Johnson or whoever it is, without losing their voice in the resolution of the contest between the major party candidates.
Not everyone may feel that way, but it seems to me to be a harmless way to allow them to register the fact they aren't fond of the major choices of people who are almost certain to win.
And so it's that kind of choice I value. But exactly as Professor Kropf was saying, the crowding on the ballot - especially if it's a one round process - now, there is, and we won't get into all the political science literature, but there really is a pretty serious case for having two rounds just in order to address this problem. A winnowing round, if you want to call it. And this gets us to the Alaska system where the really radical departure is not in the RCV, but in the fact that they have a universal all party first winnowing round that everyone can vote in, that you don't have to declare what party you're in and you can just go into that first primary round, everyone votes for anyone, and then the top four finishers, or in Nevada, it would be the top five, advance. If you agree, and I think there's a pretty plausible case here that bewilderment can set in with a field of 31, whereas focus can be brought forward with a field of four or five, then there's a real function that that's serving even though you have to reserve all the voting places a second time and so forth. So I would just throw that out there, which is there are ways of addressing this that do not derive directly from whether you're doing RCV or not.
Lisa L. Dixon: I think one thing that highlights is that while it does give the individual voters some more options in expressing their views on the ballot, it also dilutes the power and influence of the parties, the two major parties I should say. So some people might consider that a good thing - I think Walter might be in that camp, but I think there is some literature that shows that our two party system, for all of its flaws, does give us some more stability and help give voters a more stark choice. And that's kind of the stated intent in some places of proponents of ranked-choice voting is to undermine the two major party system. And whether that's for good or for ill, I'll leave for Dr. Kropf and the others to (unintelligible.)
Walter K. Olson: If I could just - no, go ahead.
Dr. Martha Kropf: Well, so one of the problems that I think that too many political scientists have observed is this increasing polarization between the parties and an inability to talk about problems and compromise over our major societal problems. And let's take this on a municipal level that this is also happening. And so ranked-choice voting, one argument in favor of it is that it moderates the candidates. They're forced to say, oh, well, "Walter's a good guy. He might work at this very conservative agency, but he's a great guy. You should put him as second choice." And for him to say "That Martha might work for a university, but she's okay, she's not a crazy liberal.", when we're actually talking about and coming to solutions it is said to, and there's some mixed evidence, but great survey evidence as Walter mentioned, that the campaigns are more civil and that we're actually moderating the candidates. So Walter, go ahead.
Walter K. Olson: Well, no, I love a question that Lisa Dixon raised about what it will do to the parties, because this is something that in America, because nearly all of the experience until recently has been municipal just didn't really come up all that much as an issue. Now we are beginning to see states that have it. And my question when there was a panel discussion on Alaska a couple months ago in Washington was specifically "What has this done to the role and the power of the parties?" And I think first I'll say the jury is out, I'm not entirely sure I know, but I'll just make a couple of points about that. First, the power of the parties had already taken torpedoes amidship, for one thing by the development of primaries, in which it doesn't matter necessarily who the party establishment favors, the primary comes in and inserts a different candidate that a different group defining itself as the base wants. Campaign finance law has also had its role, I think probably a baneful one in undercutting the importance of the parties. Two general points.
For the first 15 minutes that I thought about ranked-choice voting, I thought that it might subvert the two party system and give us a multi-party system. And then I woke up and realized that one of the most robust findings that there is in political science is that the other set of procedures - and I really am convinced even if you overlay RCV on top of it, so long as you're not changing the other things - you are going to get a two party system more or less congruent with the one that we have now, the only way you get multi-party systems is if you adopt things like proportional representation. So again, if you adopt that branch of RCV, then yes, expect multi-parties, but if you're just doing the instant runoffs, runoffs themselves don't produce third parties. In fact, runoffs efficiently screen out third parties. So that's part of it.
The second thing is that we have not seen all of the ways in which parties interact with rank choice voting yet in both, certainly in Alaska, also in Nevada, both parties establishments opposed ranked-choice voting and tried to keep it from being adopted, and were somewhat bewildered about how to behave as parties once it's there. But parties have some important power, even in the Alaska universal primary system in potentially being able to say, "We consider this person or these two people to be representatives in good standing of what our party stands for." And this other person, even if they might come from our party background to not make the cut, certainly as a libertarian, I believe political parties ought to be able to intervene with their own recommendations on how to vote that way - they should not legally be bound to any neutrality - I guess that depends on their bylaws. That gives them a role. Now, how important a role is it given that they can't control primaries under the conventional system now, would simply an endorsement system make much difference? Again, I don't want to say for sure until we see more about how states like Maine, Alaska, and Nevada work out.
Lisa L. Dixon: I think one thing that was interesting in Alaska recently, a Republican state senator testified in Illinois before their commission considering ranked-choice voting for Illinois. And she said the point of RCV in Alaska was to eliminate the extremes of both parties, but also to ensure that conservatives can no longer win statewide office in Alaska. Of course, Alaska has that strong moderate Republican strain so they were explicitly trying to keep out conservatives from winning, which was interesting.
Walter K. Olson: I have no doubt someone said that - the version I hear nearly always is that "Interest was sparked by the fact that Lisa Murkowski, specifically as an individual, had a much brighter political future." And she of course is the quintessential absolute moderate of the Senate, a very balanced figure. The actual Alaska results, they reelected their very conservative governor - Republican governor - in the legislative races, Republicans as Republicans did fine. But it does seem that there was some move from the most base-oriented Republicans to, as you say, more moderate Republicans. I caution people against thinking that there is some sort of universal rule at play here. By the way, I follow debates on the left, and there are a lot of progressives that deeply, deeply distrust RCV because they see themselves as having the road to control a lot of big cities through their discipline and primaries, and they see it moving over toward much squishier liberals who are not going to be movement-oriented.
And again, you can point to some evidence from actual elections, all of that having been said, I caution people not to imagine that there's going to be ushered in some greater age of the moderates because when I think historically about the candidates who have been great at reaching across and picking off independents, and even quite a few members of the opposite party, I think, well, Bernie Sanders, yes, Ronald Reagan, but Donald Trump has been great at that. Bernie Sanders has been great at that. Ronald Reagan was also great at that, although he was distinctly more conservative than the people like Romney and Gerald Ford who were not so good at it. So again, there's always more complications in psychology and human nature. We are going to get some extreme candidates. Appeals will go on surprising us, and I try to calm down my moderate friends who imagine that this is a skeleton key to getting moderate results, watch out for human nature.
Dr. Martha Kropf: Well, right, and I actually think it would be interesting to look into some of the meetings that are being held in these ranked-choice voting communities to see if they compare to other communities in terms of how moderate, or conservative, or progressive they are, right? But of course, we haven't really done that yet, as far as I can see. A lot of it is anecdotal evidence.
Maya Noronha: Well, how does ranked-choice voting affect specialized voters, the military voters, the overseas voters, voters with disabilities who vote differently, who vote by mail rather than in person?
Walter K. Olson: Anyone want to answer?
Lisa L. Dixon: I can start. Well, I think for military voters, that's one of the few areas where I might support having ranked-choice voting ballots because there's simply - in a state that has a runoff system, for example - there's simply not time to often to get the military voter their ballot, have them return their regular ballot, then get them the runoff ballot, runoffs are very condensed timewise. So I think that's the one situation where it might make some sense. But as far as other voters with specialized needs, people with disabilities, the ranked-choice voting ballots are generally very complicated. As Dr. Kropf noted, they're trying to get better, but when you increase the number of candidates there, you have a ranking system. We've all seen those online reviews that say, "This is the worst product ever, five stars." Anything like that increases complexity and makes it more difficult for voters with special needs or disabilities. So that's something that jurisdictions have to consider. And how are they going to help those voters and educate them and make sure that they can actually complete the ballot and make sure that the ballot actually reflects their genuine choice in the election and they haven't made a mistake along the way?
Dr. Martha Kropf: Well, I would say that for any typical disabled person who has a disability, this is not any harder or easier. I mean, the fact is if you put a ballot with bubbles of any kind, plurality or whatever in front of a person who has very serious arthritis, it's not going to be an easy thing to do. Right? That's why we have equipment in every precinct that is designed so that people with arthritis or a movement disability, or visual disability, or a hearing disability, they're able to vote equally and on their own and privately if possible, right? There's no particular reason to think - though there could be some people with some neural disabilities that could have some problems with that - but I think that there could be, you could say the same thing is true for plurality ballots, having steady ballot usability and having studied disability and voting, I don't know that that's necessarily the issue.
And I think the real thing that we need to be doing is spending some money, at least at the start, to educate voters. And I mean, to be quite honest, we should be spending more money on elections all the way around. I mean, it's kind of shameful that our election officials are using PVC pipe for whatever they need in some sort of crazy situation. It's a story I heard once, but there's just simply not enough resources unless the case, we need to actually educate the voters, in which case, people need to pump money into it. And that's a serious issue. And disability voting is a serious issue, but they're sort of separate in some ways. I mean, the fact is a runoff election, the recent runoff in North Carolina, we don't have the exact dollar amount yet, but not enough people even voted. They had to blank out some of the precincts so people's identity - what they voted for - wouldn't show up. So in other words, a lot of people weren't voting in that runoff election, and that's a problem also.
And to open, say all 195 precincts in Mecklenburg County, that was I'm sure very expensive. And to staff them and getting poll workers is a problem. Having early voting open, having by mail voting open, I mean, I think that there are some serious problems in our election system that we don't want to combine with ranked-choice voting and say it's the ranked-choice voting's fault. I think there's some things that we have to think about as you very well, you put it very well at the beginning. There's some things that we have to consider and work out, the election officials being one of the top ones, making sure that they can all explain it to people, because at the end of the day, they're the ones that are going to get challenged, the people who are running the elections. And we already have a serious problem with that right now, that people are doing very hard work doing their best for democracy, Republicans, Democrats, Independents, and they're still getting a lot of blow back over elections. And that's something that RCV right now can sort of make worse. Right now, not always in the future.
Walter K. Olson: In Georgia, certainly, and I think this has happened in other states that have runoffs, it has been put as a direct policy choice. Georgia has been discontented with runoffs, with traditional runoffs for a number of reasons, and it has been pointed out, given the discontent with the sinking turnout between the first run and the runoff, given the discontent with the high cost of the physical runoff, wouldn't it be easier to, if I could put it this way, to give all Georgians what Georgians overseas in the military already enjoy, and save all of the facilities and volunteer and staff input in the second physical primary?
Maya Noronha: So there have been a number of lawsuits challenging ranked-choice voting. So how have those courts ruled on the legal arguments? Let's turn to Lisa.
Lisa L. Dixon: So yes, there have been a number of legal challenges. RCV has been challenged under the Equal Protection Clause of the 14th Amendment, and opponents have argued that it violates the one person, one vote principle. There's been challenges saying it is violating substantive due-process by not allowing voters to know who is standing for the final election at the time they cast their ballots, it's violating the Voting Rights Act and is violating the party's First Amendment associational rights. And courts have largely just dismissed the challenges. They found that not enough evidence was presented to raise the level of scrutiny above rational basis. So they've all been decided under rational basis. State courts have decided as well - ruled on state constitutional grounds - the main supreme court ruled that RCV in its original form violated the Maine constitution, but otherwise, courts have largely allowed ranked-choice voting to proceed and ruled that it falls within the permissible realm of regulation for how election officials set up their election administration. So one thing we at the Center for Election Confidence did is fund a study earlier this year kind of looking at the impact of ranked-choice voting on minority voters because I think the Voting Rights Act challenge has not been addressed on the merits. And so if future legal challenges are going to be successful, there needs to be a body of evidence about the disparate negative impact on some of the protected groups of voters to get courts to apply a higher standard of scrutiny.
Walter K. Olson: I would second that, my advice is always watch out for your state constitution because you never know what language is going to be in a state constitution or how courts might choose to interpret that language, even if it's similar language to what is in the federal. The federal courts have pretty consistently given a green light as far as ranked-choice voting, not violating US Constitutional provisions. We could have a whole Federalist Society webinar and probably have, on the dangers of VRA litigation based on disparate impact of neutrally stated and non-discriminatory-on-their-face procedural rules. Maybe that can be the next in this series, because it's a rich subject. I do think the lack of general evidence of bad motivation together with the general - I'm not going to say this is universal - but the general phenomenon that once minority political communities have gotten a look, they've been okay with RCV in most places. I'm not going to say that's a universal rule, I think it diminishes the odds. I wish I could say that the federal judiciary stuck to a perfectly principled way of addressing disparate impact claims, but even though I'm a fan of the federal judiciary, I'm not going to claim that. They are swayed by things like whether or not there's a lot of local discontent or whatever the other things are that might provide atmospherics. Is that too cynical?
Maya Noronha: Are there different ways to implement ranked-choice voting, different algorithms, and do the voters understand those? If you put a blank at the top of a ballot, how is it counted in rank choice voting?
Dr. Martha Kropf: You mean if you don't vote for a number one candidate or but you vote for a number two candidate and number three candidate? I haven't seen research on that or even seen what the rules are on that to be honest with you, but I'd imagine-
Walter K. Olson: Rules vary from place to place, - I'm sorry to interject.
Dr. Martha Kropf: No. Please, please.
Walter K. Olson: This issue came up and I realized talking with people who work on these issues all the time that resolving questions like that, "Is a ballot spoiled if it includes no first choice vote?" is something typically within the discretion of whoever's drawing up the rules. So they specify beforehand how ballots of that sort and several other types of possible gray area ballots and some places will in fact treat it as a spoiled ballot and others will say 'It's an obvious error that will be ignored, and we will treat the second choice as being the first one." Not all the issues of voter misunderstanding can be handled by making rules in advance, but that one, I think can.
Dr. Martha Kropf: That's another thing we could look at - ballot images - to see how often that really happens too though, right? And there've been a number of studies on ballot images.
Walter K. Olson: If I could switch also to what I took to be a different part of Maya's question when she mentioned, I think, was it formulas or algorithms or something? We haven't talked much about the multi-C proportional representation type, but that's where you get into the application of actual formulas and algorithms that would leave us scratching our heads, because they can be very complicated. They evolved in many cases because these things have been discussed for a hundred years or more. Sometimes as political compromises - like between Protestant and Catholic negotiators in Ireland - sometimes for other reasons, they have the durability in parts of the world like that. In part, I believe because they are seen as effectively neutral between the various major factions and parties. Even though, and again, every time I get a chance, I ask Irish people and Australia and people, "Hey, does anyone of these regular voters actually understand the algorithm?" And the answer, again, is often "Well no, but the fact that neither party complains about it and no candidate has complained about it in a long time means that people just say, it must be okay. It's a block box, but it seems to work well enough." We are off on a sea of theory as to whether or not we should be satisfied with a situation. Those two countries appear to be practically satisfied.
Lisa L. Dixon: I think one thing, even though ranked-choice voting used in the US - or being contemplated in the US - is relatively simple. It doesn't require the complicated chart that some of the overseas systems do. I think to the average voter, it can still seem a little bit opaque, especially the computer is kind of doing the different rounds of tabulation. And I think there's a real need for states and localities that use it to build trust in the system by educating voters about how that works, how the process is run, what happens in subsequent rounds, so it doesn't seem like a black box to the voters, but they really understand what's going on, what the computer is doing, and there need to be ways for election officials to detect where something has gone wrong if something does. There was the school board race in Oklahoma, or excuse me, California, where an error was detected in the ranked-choice voting system two months after the winner was certified. And so things like that really can drive a lack of voter trust in the system. And so there needs to be checks in place to detect things like that and ensure voters that this isn't a black box that just spits out the answer, but to really make sure everyone understands how it works.
Maya Noronha: Well, thank you so much to our three speakers. I'm sure we could keep discussing this for a lot more time, but our webinar is at a close, so back to you, Chayila.
Chayila Kleist: I'll echo those thanks. I know we could go on for another hour. We've had a lot of audience interests, but we do need to wrap it here. Really appreciate you all joining us today and lending us this portion of your days as well as your expertise. Thank you also to our audience for joining and participating. Welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.