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

Kathy Dopp kathy.dopp at gmail.com
Tue Dec 25 09:11:47 PST 2007

Thanks for your comments Abd ul-Rahman Lomax (what name should I call you?)

 I do find that ballots (2nd choices) of some, but not all
voters is considered with IRV, and hence my opinion is that it does
not treat all voters' ballots equally and should be considered illegal
under any law that requires the ballots of all voters to be treated

I find there to be many scenarios where IRV voting makes a candidate a
winner who is not supported by the most number of voters and I do not
support it and in fact I oppose IRV.

There must be better methods.


On Dec 24, 2007 11:25 PM, Abd ul-Rahman Lomax <abd at lomaxdesign.com> wrote:
> 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.


Kathy Dopp

The material expressed herein is the informed  product of the author
Kathy Dopp's fact-finding and investigative efforts. Dopp is a
Mathematician, Expert in election audit mathematics and procedures; in
exit poll discrepancy analysis; and can be reached at

P.O. Box 680192
Park City, UT 84068
phone 435-658-4657


History of Confidence Election Auditing Development & Overview of
Election Auditing Fundamentals

Vote Yes on HR811 and S2295

Voters Have Reason to Worry

"Enlighten the people generally, and tyranny and oppressions of body
and mind will vanish like evil spirits at the dawn of day," wrote
Thomas Jefferson in 1816

More information about the Election-Methods mailing list