Is IRV unconstitutional in Minnesota? You Be the Judge


Is IRV unconstitutional in Minnesota? You be the judge.

Here is how the case comes before you.

On December 20, 2007, a group filed a lawsuit in Hennepin County, file number 27-CV-08-35, asking for a declaratory judgment that IRV is unconstitutional.

■ The plaintiff claims that the IRV process is unconstitutional. How do you evaluate that claim?

■ Look at the federal Constitution. There is nothing there that specifically addresses voting methods. Then look at the cases decided by the Supreme Court and other federal courts on IRV--there are none. How about the Minnesota Constitution? Nothing in it mentions voting procedures. And there are no Minnesota cases that specifically address the IRV voting process.

■ Without any direct guidance from the constitutions, or case law directly on point, you the judge must assume that the IRV process is constitutional. In our country, the courts give great deference to the legislatures, city councils, and the electorate. It is your job as the judge to find IRV constitutional if you can. It is only if you have analyzed the process from every angle and concluded that it cannot possibly be constitutional that you should make that decision.

■ The argument made by the plaintiff is as follows: the Minnesota Supreme Court in 1915 found a preferential voting system used in Duluth for a judicial election to be unconstitutional in the Brown vs. Smallwood case. The plaintiff says:

• A preferential voting system was found unconstitutional.
• IRV is a preferential voting system.
• Therefore, IRV is unconstitutional.

Are you convinced by that argument? Or do you need to delve a bit deeper into the comparison?

■ You must delve deeper. It is your duty to try to respect the Minneapolis charter and distinguish IRV from the voting method used in the Brown case. If the constitutional flaws in the Brown system do not exist in IRV, then you need to find IRV constitutional.

■ Read the Brown case. What were the flaws in that system that caused the Minnesota Supreme Court to find it unconstitutional?

■ Was it the ranking of candidates? Nowhere in the Brown decision does it say that ranking candidates is inherently unconstitutional.

■ What were the constitutional flaws? Unfortunately, the court did not provide a clear list of the specific flaws that they found. We can read the decision and infer what the flaws were.

■ The Court seems to be troubled by the fact that in the Brown system a voter’s second choice diminishes the value of his first choice. That’s because in the Brown system if no candidate has a majority of first choices then all the voters’ second choices are added to the first. This is very different than IRV. In IRV, your vote stays with your first choice unless your candidate is eliminated. Therefore, your second choice does not harm your first, and you have every incentive to make a second and third choice.

■ The court also complains that in the Brown system there are “infinite” possibilities. This is because the Brown system does not methodically reduce the field of candidates through a process of elimination as does IRV.

■ The Court notes that although there were only 12,000 voters in Duluth, there were ultimately 18,000 votes counted to decide the election. But in IRV, there are never more votes than voters. Second choices replace the first choices of eliminated candidates; they are not added to the total. Consequently, IRV maintains the principle of one-person, one-vote.

■ Without a process of eliminating candidates, the Brown system has no rational basis. But just as a series of primary elections which eliminated only one candidate at a time would pass constitutional muster, so would IRV, which does the same thing by allowing voters to project how they would vote if those subsequent primary elections took place.

■ This analysis is called “distinguishing” the case. It is the duty of you, the judge, to find distinctions if you can, in order to support the will of the people. Since the flaws in the Brown process do not exist in IRV, you must find that IRV is constitutional. It’s not about whether you, the judge, like IRV or think it’s a good system or not. The analysis of constitutionality is not unlike the criminal law standard of reasonable doubt. You cannot convict a person of a crime unless the proof is beyond a reasonable doubt, and you cannot find a law to be unconstitutional unless it is unequivocally so.

■ The voting process used in the Brown case is called the Bucklin system. It is not currently used in any city, state, or country in the world to my knowledge. It is considered a flawed system by political scientists. By comparison, IRV has been used in Ireland and Australia for decades, and the people of those countries are unwilling to change to the American system. These are two of the best governed countries in the world. Many political scientists consider Single Transferable Vote (which includes IRV) to be the best electoral system ever invented. It would be strange indeed for a court in our country to find unconstitutional a system that is considered superior in countries such as Ireland or Australia and is considered by scholars one of the best ever conceived.

■ Why did Duluth use the Bucklin system if it was so bad? There were no automated voting machines. Votes had to be counted by hand. It is much more time consuming to do an IRV count than a Bucklin count. With Bucklin you just add the second choices to the first choices. With IRV, you have to examine each ballot individually to identify which have votes for eliminated candidates, and then only count the second choices from those ballots. Minnesotans in those days did not want to go to that much trouble. Now we will have voting equipment that will do all the counting for us.

■ Only one case in America evaluates the constitutionality of IRV. The Stephenson case is from Ann Arbor, Michigan, from the 1970s. The judge very clearly states that IRV is constitutional. As you read the case, you can see that his argument is well thought out. As a district court decision from another state, this decision would not be binding on the Minnesota court. But because the voting system is the same as IRV, the courts might put more weight on this opinion than they do on Brown vs. Smallwood, which is an entirely different voting process.

Have I missed something in my analysis? Do you see where the Brown court has identified constitutional flaws that also exist in IRV? If so, please email me at the address below to share your thoughts.

Thank you for considering this case. I hope you see that it is easy to spout that something is unconstitutional, but much harder to convince a court to adopt that view and strike down the will of the people.

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