[EM] New MN court affidavits etc. (correction)

[Abd ul-Rahman Lomax]

At 02:07 AM 11/11/2008, Kathy Dopp wrote:
>On Mon, Nov 10, 2008 at 7:26 PM, Abd ul-Rahman Lomax
> >
> > Here is the problem they face: the matter has been tested many times. The
> > only state which has found, to my knowledge, preferential voting to be
> > unconstitutional, per se, is Minnesota, through Brown v. Smallwood.
>
>What other cases are there that have previously established its
>constitutionality and had IRV declared constitutional?
>
>Are they already listed in defendants' docs?

I have not reviewed the defendant's documents. Can you link to the 
court records? However, a relatively recent case would be in 
Michigan, with regard to Ann Arbor, which used IRV in one election. I 
thought I recall seeing a court case on this. 
http://www.migreens.org/hvgreens/aa-irv01.htm mentions a review by 
the Michigan Attorney General which found it lawful, assuming proper 
implementation. There have been *many* adoptions of IRV at various 
times in the U.S., it is not a new reform. It's likely that had there 
been easy constitutional arguments to use against it, it would have 
been found unlawful. When success is considered slim, cases won't 
even be filed.

Fairvote notes some cases in 
http://www.fairvote.org/media/press/burlington/constitutionalconcernsshorter.doc

Specifically, Andrew Moore vs. Election Commissioners of Cambridge, 
309 Mass. 303, 35 N.E.2d 222 (1941). (re Cambridge STV)

As for Ann Arbor, my memory was correct:
"Under the "M.P.V. System", however, no one person or voter has more 
than one effective vote for one office. No voter's vote can be 
counted more than once for the same candidate.  In the final 
analysis, no voter is given greater weight in his or her vote over 
the vote of another voter, although to understand this does require a 
conceptual understanding of how the effect of a "M.P.V. System" is 
like that of a run-off election. The form of majority preferential 
voting employed in the City of Ann Arbor's election of its Mayor does 
not violate the one-man, one-vote mandate nor does it deprive anyone 
of equal protection rights under the Michigan or United States 
Constitutions." Stephenson v. Ann Arbor Board of City Canvassers, 
File No. 75-10166 AW Michigan Circuit Court for the County of Jackson

In New Jersey:
Orpen v. Watson, 87 N.J.L. 69, 93 A. 853, affirmed 88 N.J.L. 379, 96 
A. 43 the court wrote "as it is only the choice votes which go to 
make a majority that are counted as effective votes, and as no voter 
can vote for the same person but once in expressing his different 
choices, he can in no way cast more than one vote which can be 
counted for each office to be filled, because none of his other 
choice votes enter into or influence the result" Page 73, of 87 
N.J.L., page 855 of 93

In New York:
the Court of Appeals of the State of New York in Johnson v. New York, 
274 N.Y. 411, 430, 9 N.E.2d 30, 38 in upholding the use of 
preferential voting in New York City wrote that "We must always be 
careful in approaching a constitutional question dealing with 
principles of government, not to be influenced by old and familiar 
habits, or permit custom to warp our judgment.  We must not shudder 
every time a change is proposed."

The longer version of the FairVote document contains this claim:

>No courts have found a problem with the principles or logic of the 
>single transferable vote used in IRV.  The only cases of courts 
>rejecting preferential voting due to the nature of the voting system 
>itself, deal with variants of Bucklin voting, an inferior system 
>that does not utilize the single transferable vote used in IRV.  The 
>Bucklin preferential voting system added all second choices to first 
>choice totals, creating undemocratic and bizarre outcomes, and is 
>not relevant to the form of preferential voting proposed for 
>Vermont.  See for example 1915 Minnesota Supreme Court decision, 
>Brown v. Smallwood, 130 Minn. 492   (153 N.W. 953, L.R.A. 1916B, 
>931, Ann. Cas. 1917C, 474).

I think it is true, i.e., I know of two rejections: Brown v. 
Smallwood, re Duluth Bucklin, and a case in Oklahoma (which used 
devalued lower preference votes, thus reducing the voting power of 
voters who did not name a frontrunner as first preference, defeating 
one of the purposes of preferential voting and, indeed, treating 
voters unequally. I've seen recent writers on the Internet suggest 
similarly devaluing Approval votes. Really, really bad idea.) 
However, what FairVote doesn't tell us is that the Brown v. Smallwood 
court roundly rejected all forms of preferential voting, using 
language that clearly did not merely apply to Bucklin. I've read a 
lot of material on Bucklin, (most of it comes from FairVote, it's 
really necessary to get some more historical research on this), and 
I've seen no Bucklin election outcomes that were "undemocratic and 
bizarre." Bucklin is, quite simply, "Instant Runoff Approval," 
considering lower preferences, just like IRV, only if counting of the 
first preferences doesn't find a majority. If we look at the case 
involved in Brown v. Smallwood, it is blatantly obvious that IRV 
would have produced the same result. Smallwood was the runner-up in 
the first round, so would not have been eliminated. FairVote would 
claim that Bucklin would discourage voters from adding lower 
preferences, but ballot truncation is very common in Australia where 
they use Optional Preferential Voting. In practice, there are only a 
few differences between IRV and Bucklin: Bucklin is much easier to 
count. Bucklin is far less likely to eliminate a Condorcet winner, 
because it does not do candidate eliminations. Because of its 
sequential amalgamation, Bucklin satisfies the Majority Criterion. I 
would argue, though, that voters should be free to vote for more than 
one in the first rank, which will cause it to technically fail, but 
not in a way that harms voter interests. Bucklin, like IRV, should 
resolve the spoiler effect, but unlike IRV, it doesn't lose this 
capacity when the third party becomes strong enough that it might 
win. (IRV becomes quite dangerous under those conditions, which are 
rare, but the magnitude of the "mistake" could be great.)

So, really, we are left -- unless someone can find something else -- 
with Brown v. Smallwood standing out as the unique case where 
preferential voting, per se, was rejected. And there are a number of 
cases where it was found constitutional, plus, even if there are no 
more cases in higher courts, there were many implementations that 
went on for years, and there were enemies of the method, disturbed, 
as in New York, by the results -- which we would now generally 
consider good -- who would have used legal means to dump it if they 
could. Brown v. Smallwood notes that the prevailing legal opinion of 
the time, by a large margin, was that Bucklin was constitutional.

It is, in my view, barking up the wrong tree to argue the 
unconstitutionality of IRV or STV. IRV, in particular, is a poor 
method, but adopting poor methods is not unconstitutional. Or 
Plurality would be unconstitutional.

It's true that Plurality is better than most experts think, because 
of real-world considerations that improve its performance. However, 
IRV is really a tweaked Plurality, and the problems that IRV suffers 
from exist also, the same or worse, as in Plurality. It is merely 
that IRV leaves some major problems in place. Center Squeeze will 
cause a Condorcet winner to lose in Plurality just as in IRV. The 
lower preference votes that plaintiffs in Minnesota are complaining 
are not counted are certainly not counted in Plurality, they are not 
even recorded on the ballot, or, if they are, the ballot is 
discarded. Plurality is monotonic, to be sure, whereas IRV is not, 
but real situations where IRV exhibits its non-monotonicity have 
never been shown to be sufficiently common to worry about; if that 
were the only problem, I'd be far more supportive of IRV. Center 
Squeeze is not uncommon. (The same phenomenon occurs in Top-Two 
Runoff, and if write-in votes are not allowed in the runoff, it is 
not remediable. So we have the Lizard vs. Wizard election that 
Poundstone describes, and the French election where Jospin made it to 
the runoff, instead of the probable Condorcet winner.)

"Bad" is not a synonym for "illegal" or "unconstitutional."


>I have no time for the legal arguments and only for the mathematical
>and logical ones.

Sure. But you have submitted an affidavit in a legal case where the 
"mathematical and logical" arguments are moot. Waste of time. And for 
the plaintiff's counsel to submit the same, as part of a motion for 
summary judgment, was likewise a waste.

There was hope for summary judgment on the simple grounds of Brown v. 
Smallwood as a precedent. The defendant would argue that IRV wasn't 
the same as the "preferential voting" that BvS rejected. However, BvS 
is clear enough about what it was rejecting that *maybe* the court 
would say that it would be unnecessary to argue it, that the only 
basis for allowing IRV would be if the Supreme Court were to reverse 
Brown v. Smallwood.

However, by raising issues that clearly would need to be argued and 
resolved in court, they shot their motion for summary judgment in the 
foot. The judge might choose to disregard that, but politically, this 
was a terrible way to encourage the judge to rule in their favor.

I.e., say there is a contract between me and you that I am to pay you 
$1000 for your car. You acknowledge that the contract exists, and 
there is no dispute over what it says. You also agree that I've paid 
you the $1000. The terms of the contract clearly state that when the 
price is paid, the car is to be delivered to the purchaser.

So, as plaintiff, I might move for summary judgment. Instead of 
simply pointing to the contract, the payment, and clear law on the 
subject, suppose I argue that the car isn't worth $1000. As part of 
my motion. That's a judgment, and not a fact unless judicially 
determined. I also allege that you are willfully withholding delivery 
in order to spite me. Likewise, this is not something clear from 
uncontested evidence and documents. It would be a bad idea to make 
these allegations as part of a motion for summary judgment, when the 
hope of summary judgment (which can save a lot of money) is a speedy 
decision based on crystal clear fact and law.

That monotonicity failure makes a voting method unconstitutional is 
quite the contrary to precedent, everywhere except Minnesota, and, 
even there, it was not the basis for Brown v. Smallwood. I've called 
the FairVote or defendant arguments about all methods failing 
"Arrow's Theorem" preposterous, but they do have a point. All methods 
have some characteristic or other which can be used to criticize the 
method. That such a negative characteristic exists, by itself, does 
not prove that the method is so poor as to be unconstitutional, given 
that the fault might be a gnat, and the fault of a clearly 
constitutional method, a camel.

I think there is little realistic hope that the Minnesota courts will 
reject IRV, unless they simply rely upon Brown v. Smallwood. At the 
lower level, there is a good possibility of that, and we saw 
independent legal counsel opine that, due to BvS, IRV was 
unconstitutional. However, when this reaches the Supreme Court in 
Minnesota, all bets are off. There is a very good chance that the 
court will reverse Brown v. Smallwood, which was idiosyncratic and 
quirky, in its own time.

My *only* concern about the Minnesota case is that the courts will 
follow FairVote reasoning, and allow IRV while continuing to reject 
methods that fail Later-no-Harm, thus preventing the application of 
methods which most voting system theorists consider superior to IRV, 
with Later-no-Harm being a quite questionable criterion, as the 
inventor of it, Woodall, notes. My own comment is that it is inimical 
to voting system simulation of the negotiation process that is 
crucial to deliberative democracy. It is IRV compliance with LNH that 
makes it fail Condorcet, because to find a Condorcet winner, you have 
to look at all the preferences, not just the top ones, or top remaining ones.

> > The plaintiff argues rights that only Brown v. Smallwood previously found.
> > They also argue a totally new right, the "right to associate" with a
> > candidate, and they raise issues of ideology, which likewise have no
> > foundation in constitutional law and are entirely new, as far as I know.
>
>I didn't notice any ideological issues raised.

Search the documents for the word "ideology." It's prominent.

> > The only grounds they have of any reasonable likelihood of prevailing is
> > that IRV is preferential voting and Brown v. Smallwood explicitly outlawed
> > preferential voting, not merel the specific method used in Duluth, Bucklin
> > voting.
>
>I disagree with you.

You are, of course, free to do so.


> >
> > The rights the plaintiffs are asserting, quite simply, don't exist, or at
> > least there is no legal precedent for them, except for Brown v. Smallwood.
>
>The right to equal treatment under any laws is a fundamental right and
>it certainly does exist. Re-read the US constitution.

Sure, rights to equal treatment exist. However, IRV has been found, 
explicitly, to apply that. The rights I was referring to were the 
right to "associate" with a most preferred candidate and the same 
restated with the word "ideology" being used.

>Abd ul. Reread the US constitution or case law based on it.  There are
>rights that have been long established that apply very clearly to this
>case.

Kathy, read your local phone book. You will find enlightenment there.

Show one example of such a right, applying "very clearly" to this 
case. Aren't you aware that novel arguments are being raised, or, in 
the other direction, old and rejected ones?

>I'm not an attorney though so I can't argue legally with you.

You certainly are arguing legally. We are talking about 
constitutional law, the constitutionality of IRV, not its 
mathematical or logical properties. When you talk about "rights," you 
are talking, not about mathematics or logic, but about law (or 
principles underlying law).

> > However, that's not the rule. Brown v. Smallwood, which likewise invented a
> > new right, the right of a voter to vote for the candidate of the 
> candidate's
> > choice, without "interference" from votes from other voters,
>
>That is interesting. Hard to say what exactly is meant by that. Seems
>a little imprecise.

Sure. Have you actually read BvS?


> > was
> > idiosyncratic and not confirmed by any other court in the many years that
> > have elapsed. Preferential voting has been used in many places. The only
> > other example I know of it being terminated by an unconstitutionality
> > decision was Oklahome, where the decision hinged not on the concept of
> > preferential voting, but on the fractional vote values they assigned to
> > lower preferences.
>
>Hmmm. What was the name of that case?

I forget. It's not hard to find. I gotta go out to a meeting. It's 
not important. The basis for rejection of fractional Bucklin was an 
unusual aspect of that method (not the same as the fractional votes 
in STV, which I explained.)

>Abd ul, Just for the sake of argument,
>
>Would you be happy if BvS were overturned but STV/IRV were declared
>unconstitutional?

That would depend on the basis for rejection. I don't see a 
constitutional basis for rejection of STV that isn't based on BvS. 
But if a good one were found, perhaps. I consider that highly unlikely.

I'm also not thrilled at the idea of preventing people from choosing 
their election methods. There had better be a compelling interest. I 
don't see one.

>If I understand you right, that would be your preferred result but you
>don't think that this case could result in that right?

No. At this point, my preferred outcome is that the lower court finds 
IRV unconstitutional on the basis of BvS. This is appealed, and the 
Supreme Court overturns BvS and finds IRV constitutional.

My preferred outcome is the one I consider most likely. But the other 
possibility, which I dislike, is that BvS is upheld. The *worst* 
outcome is that the FairVote arguments prevail, i.e., BvS is 
supposedly confirmed, but IRV is, against all decent logic, found to 
be exempt from it.


> >
> > I read the plaintiff's arguments carefully. They are defective and mostly
> > are claims that IRV has this or that supposedly bad characteristic -- or,
> > for that matter, really bad characteristic -- but such problems don't make
> > the method unlawful.
>
>Some of the bad characteristics do definitely make IRV/STV unlawful IMO.

Specifically? Remember, what is not prohibited is lawful. So, what 
law prohibits the characteristic?



> > The Court, to find IRV unconstitutional, would have to
> > find Plurality and Top Two Runoff unconstitutional --
>
>Disagree.

Sure. At your own responsibility.


> > unless it relies on
> > the BvS precedent, in which case it would continue to prohibit all forms of
> > preferential voting.
>
>Well that would still leave range and approval voting wouldn't it? Or
>not? I haven't studied BvS.

No. It would prohibit Approval Voting. More accurately, it would 
continue to prohibit it. Range is a more sophisticated Approval. (My 
summary of Range is that it is Approval with fractional votes allowed.)

Really, Kathy, have you read BvS? I advise reading it, and *carefully*.

> > Note that the BvS court said that election method performance, or the
> > superiority of preferential voting -- which it practically acknowledged --
> > wasn't the issue. The issue was that a change like that involved 
> in bringing
> > preferential voting was, to them, a constitutional change requiring a
> > constitutional amendment. The court challenged the Bucklin supporters to go
> > through that process. And, apparently, the reformers didn't. I've seen no
> > record of any effort to try. But it was a long time ago.
>
>I do agree with you that Bucklin is superior to IRV/STV.
>
>How many of these cities gave up using STV or IRV?
>
>How many of them still use it?

I wrote about that, I think, but the articles certainly state it. 
Only one city still uses STV. Of the old implementations of IRV, none 
are left. None were eliminated by legal action, as far as I've found. 
They were politically eliminated. In some cases I know the political 
history. In New York, STV was eliminated based on a red scare and 
racism. It was electing, horrors, socialists and blacks, though, 
naturally, in small numbers. In Ann Arbor, it was eliminated because 
the Republican Party mounted a successful initiative to remove it. 
(It had been adopted by initiative with broad participation, I think. 
The rejection was scheduled in a manner to encourage low turnout, 
students were out of town, is the way I've seen it stated. And the 
proponents, principally the Human Rights Party, didn't have the 
political will or clout to recover, to fight back, they were losing 
their ground for other reasons. The Democratic Party may have stood 
aside. They liked winning the mayor's office, I'm sure, but election 
reform could be contagious and the last thing the major parties want 
is more success for third parties. They might get uppity. That mayor, 
by the way, was the first African-American mayor of Ann Arbor, it's 
not impossible that this likewise played a factor.

Politics. (IRV, in fact, doesn't successfully challenge two-party 
hegemony, but the major parties don't necessarily know that.)







>If I have to go to a hearing ever, I'll make sure to read it first.
>Thanks.  I still don't know exactly who Brown and Smallwood were, who
>won under IRV vs. plurality and I'm tired and still have lots of work
>to do tonight. Sigh.

You need to know. I think I gave a link to the text. It's not that long.


> > For example, Bucklin finds majorities more efficiently than Instant Runoff
> > Voting, which finds them more efficiently than FPTP (Plurality). Requiring
> > full ranking always finds what the Australians call an "absolute majority,"
>
>I am not convinced of that fact with the Minneapolis STV counting
>method. You may not be correct.

When it's used single-winner, it certainly would. That's because 
there are no exhausted ballots. But the Minneapolis system doesn't 
require full ranking. Nor should it. Bad idea.


> > but it really only does this by coercing votes, on pain of one's vote being
> > disregarded as informal.
> >
> > Bucklin could be used for a primary. If no majority is found, the top two
> > candidates, after all ranks have been pulled in, could be on the 
> ballot in a
> > runoff, but the runoff could be Approval. This would allow voters to vote
> > for a write-in *without risk*, if they prefer a candidate that was
> > eliminated in the primary (or that appeared late).
>
>I am currently focused on comparing IRV/STV with plurality elections
>primary/general.

Plurality is lousy for producing democratic representation. 
Multiwinner STV is much, much better for that. It's single-winner 
STV, i.e., IRV, that's more problematic. Still, we should realize, 
IRV and Plurality will usually find the same winners. The deviation 
comes with IRV and Top Two Runoff, which apparently does a better 
job. TTR is real election reform, it has been for a long time. The 
opposition? Cost, usually. Bad tradeoff.

I estimate that one election out of ten will go to a winner that 
would lose in a direct face-off with the runner-up, under plurality 
and IRV. Now, that study was with nonpartisan races. IRV may do a bit 
better in partisan races, because vote transfers are more biased. (In 
nonpartisan races, it turns out, the lower preferences of voters 
don't depend much on their first preference. I.e., if all voters vote 
40% for A and 30% for B and 20% for C, and you eliminate C, the C 
voters will rank A and B in the same proportional preferences as the 
rest of the voters, 40:30. Thus the vote transfers have little effect 
on the relative position of A and B. And the victory goes to the 
first preference leader. That phenomenon is known in Australia, that 
the vote transfers don't change the preference order very often. 
Exceptions seem to occur with partisan elections where an eliminated 
candidate was the candidate of a party with a strong ideological 
basis leading to very clear vote transfers preferentially to one 
candidate, the runner-up, who then might win. Thus Ann Arbor in the 
single IRV election held there. If there are four parties, though, 
with one being on the left and one on the right, this effect might 
largely disappear.


There are precinct-summable, non-STV methods for proportional 
representation, such as Proportional Approval Voting or Reweighted 
Range Voting. But we aren't close to that, they have no track record.