[Election-Methods] Fwd: FYI - FairVote MN Responds to Lawsuit Against IRV

[Abd ul-Rahman Lomax]

At 12:12 AM 12/23/2007, Kathy Dopp wrote:
>-
>What do you think of this lawsuit?
>Kathy

I've done a fair amount of study on Brown v. 
Smallwood, and it's worth reading. Google it; 
there is a copy of the decision on rangevoting.org.

>FairVote Minnesota Responds to Lawsuit Against Instant Runoff Voting
>
>Minneapolis, MN (December 20, 2007)—FairVote Minnesota, a nonprofit,
>nonpartisan organization leading the effort to institute instant runoff
>voting in Minnesota, is issuing a response to news of a lawsuit brought
>against the City of Minneapolis and various elected officials by an Eden
>Prairie-based organization that is opposed to the pending use of instant
>runoff voting (a.k.a. single transferable vote or ranked choice voting) in
>the City of Minneapolis.

The lawsuit was inevitable. It might be premature, however.

>The lawsuit alleges that instant runoff voting (IRV) is unconstitutional
>and violates the principle of “one person, one vote.† Additionally, the
>plaintiffs contend that voters won’t understand how to vote using instant
>runoff voting.

They probably also allege that it will cause 
dandruff. That's all fluff. There is a real legal 
question in Minnesota, and all the hand-waving by 
FairVote is not going to make it go away.

FairVote wrote a legal opinion before, similar to 
what's in this release. It may have been what was 
used to convince Minneapolis authorities to go 
ahead in spite of legal opinions given to the contrary.

>FairVote Minnesota presents the following facts as guidance in the
>discussion of this lawsuit.

Ah, I must say that I'm tempted to use the term 
"lies," when opinions, perhaps even weak 
opinions, are presented as fact. Some of what is 
said will be arguments, and some facts will be stated as well.

>1. IRV has been upheld on the principle of "one person, one vote" in legal
>challenges following its adoption in Cambridge, Mass. (Moore v. Election
>Commissioners of Cambridge (1941) and in Ann Arbor, Mich. (Stephenson v.
>Ann Arbor Board of Canvassers (1975).

Yes. Different states. Further, the court in 
Brown v. Smallwood was aware that it was 
contradicting precedent in other states.

>Sources:
><http://www.rwinters.com/docs/moore.htm>http://www.rwinters.com/docs/moore.htm;
>http://www.fairvote.org/library/statutes/legal/irv.htm

Lesson One: don't rely on legal advice from people with a conflict of interest.

>2. No legal challenges are threatening instant runoff voting anywhere it's
>in use—San Francisco, Calif.; Cambridge, Mass.; Burlington, Vermont; Takoma
>Park, Maryland and Cary and Hendersonville, North Carolina.

I'll be a little surprised if a challenge doesn't 
arise in San Francisco, though a lot depends on 
details. IRV is sold as a replacement for top-two 
runoffs, and top-two runoffs are only employed 
where it is considered desirable to have a 
majority result. In San Francisco, there are 
elections being won with, I think, less than 40% 
of the vote. As any parliamentarian would know, 
you can't create a majority by discarding ballots 
with legal votes on them, merely because they did 
not vote for the top two. This *might* be the 
basis of a challenge to IRV, though, more likely, 
the IRV implementation superceded the majority 
requirement, which may not have been absolute.

When IRV has been proposed for the election of 
governor in Vermont, it has been quite clear that 
exhausted ballots still counted, and that the 
election would still go to the legislature if the 
winner did not get a majority, as required by the 
Vermont constitution: the legislature is to 
choose from among the top three candidates.

Now, this makes a lie out of the ballot 
instruction that has been proposed in that 
Vermont legislation: that adding a lower ranked 
preference cannot hurt your first preference. It 
can. Odd, don't you think, that such a thing would escape notice?

>3. Election exit polls in cities using IRV all show voters in overwhelming
>numbers not only understand IRV, but prefer it to the old way of voting.
>The share of voters indicating they understood IRV well or very well the
>first time using IRV: San Francisco ­ 87%, Burlington ­ 89%; Takoma Park ­
>88%; 8%; Cary ­ 95%; Hendersonville ­ 86%.
><http://www.fairvotemn.org//sites/fairvotemn.org/files/Exit%2520Survey%2520Summary_2007_FINAL.doc>http://www.fairvotemn.org/sites/fairvotemn.org/files/Exit%20Survey%20Summary_2007_FINAL.doc

The claim that voters would not understand IRV is 
of no legal significance. By the way, FairVote 
takes two polls, with mixed results, and presents 
them as if the results are "overwhelming." Is it 
important if 10% of voters say they don't 
understand the system? I'd think so. But it is not legally relevant.

Takoma Park always amuses me. That's where 
FairVote staff live. Small town, mostly unopposed 
elections. Not a place where IRV was needed.

>4. As discussed in an opinion piece in the September 30, 2007 Star Tribune
>by attorney and professor David Schultz, the 1915 legal case cited in the
>lawsuit, Brown v. Smallwood, was not about instant runoff voting.

Impressive. True. Misleading.

David Schultz is on the Board of FairVote Minnesota.

For an independent opinion, see
http://www.ci.minneapolis.mn.us/council/charter-commission/docs/06_January_3_2006_Legal_Analysis_to_Ch_Commission.pdf

>  It was
>about a voting method that effectively gave Duluth citizens two votes in
>some situations, a clear violation of both the Minnesota and United States
>constitutions.

That's a ... lie. Under no situation in Duluth 
did voters have two effective votes. The method 
was Bucklin. Simple summary: three-rank ballot. 
It's a form of instant runoff, but not using 
sequential elimination. In the first rank, you 
could vote only for one candidate. Same for the 
second rank. Third rank, you could vote for as 
many as you like. This was essentially instant 
runoff Approval. That is the votes were added, no 
candidates were eliminated. Now, the majority 
legal opinion at the time, and a dissenting 
justice on the Brown v. Smallwood court, clearly 
thought that Bucklin was constitutional.

(At first glance, to some, it appears that 
Approval -- and Bucklin -- give voters more than 
one vote. But, just as with IRV, only one vote is 
actually effective; the difference between 
Approval and IRV is that alternative votes are 
simultaneously considered in Approval and 
sequentially in IRV. The sequential dropping of 
candidates, and thus of the votes for them, is 
what makes IRV such a poorly-behaved system, 
quite capable of electing a candidate even though 
a majority of voters preferred someone else. See 
Robert's Rules on preferential voting. In the 
end, only a vote for a winner is effective; all 
other votes could be erased from the ballots 
without changing the result. Cumulative voting is 
a system which actually allows more than one 
vote, but cumulative voting is itself not 
unconstitutional for some elections, particularly multiwinner elections.)

FairVote analysts have taken a piece of the 
Smallwood decision and have treated it as if it 
were the entire opinion. In fact, however, if the 
entire record is read and, in particular, the 
response to a request for reconsideration, the 
court was objecting to any kind of alternative vote.

>  The concern of that decision was based on what the courts
>now call the "one person, one vote" standard. IRV does not violate this
>standard because it does not give anyone two votes. It simply allows voters
>to rank their preferred candidates.

Smallwood talks about marks on the ballot. With 
IRV, a voter may make more than one mark on the 
ballot. Sorry, the Smallwood reasoning *does* 
apply to IRV. Only one small part of that 
reasoning seems to be about the simultaneous 
consideration of votes for more than one 
candidate, the thing that IRV avoids by 
sequential elimination. However, there is no 
serious expert opinion that Approval violates one-person, one-vote.

>5. Schultz further explained that since 1915 American democracy has
>matured. The political process now seeks to provide more choices for voters
>than it once did, as evidenced by numerous ballot access court decisions
>that have made it possible for third party candidates such as Jesse Ventura
>to run for office. The courts, mindful of voters’ demands for more
>options when voting, have properly responded to the demand of citizens in
>interpreting election laws to empower and not limit options on election day.

Eh? Is this supposed to be relevant? The problem 
in Minnesota is that the Supreme Court of the 
State decided that alternative votes were 
*unconstitutional*. That court specifically and 
explicitly avoided considering whether or not 
Bucklin was an improvement, they noted that those 
who wanted this improvement should act to amend the constitution.


>6. The lawsuit’s plaintiffs advocate to keep low-turnout municipal
>primaries and to make them partisan to ensure all parties are represented
>on the ballot. However, IRV shares the goal of ensuring choice on the
>ballot. In fact, it makes sure that all candidates appear on the general
>election ballot, regardless of party. With IRV, no candidate can be
>eliminated in a low-turnout election whose chances might be different in a
>general election.

Again, this is not relevant.

Brown v. Smallwood is the current law of 
Minnesota, it is a standing precedent. I would 
argue that it was a totally defective decision, 
not on the self-serving basis served up by 
FairVote, but because the arguments in it were 
clearly corrupt. Bucklin was working, all you 
have to do is look at the election of Smallwood 
that was overturned. IRV would also have chosen Smallwood.

I wrote an analysis of the decision which is on 
the rangevoting.org web site. You can find it by 
googling "Brown v. Smallwood." FairVote has 
extensively misrepresented what is in that decision.

As to what will happen to the challenge, this 
case is not likely to be resolved without a state 
supreme court decision. Good chance that the 
lower courts will toss out the Minneapolis law 
based on Brown v. Smallwood, but, regardless, 
expect it to end up at the top. There, I see three possibilities:

1. Brown v. Smallwood is upheld and applies to IRV. That would be unfortunate.
2. Brown v. Smallwood is upheld but applies only 
to Approval-type alternative vote. That would 
*also* be unfortunate, and would be the first 
time that such a decision is explicitly made. 
Approval supporters should, in particular, 
attempt to avoid this outcome by filing friend-of-the-court briefs.
3. Brown v. Smallwood is reversed. This is the ideal outcome, in my view.