Instant runoff voting gets Supreme Court hearing

Curtis Gilbert // Published May 13, 2009 in Minnesota Public Radio
St. Paul, Minn. — Even though the state Supreme Court hasn't ruled yet, the instant runoff voting opponents already predict they'll appeal to the U.S. Supreme Court.

Andy Cilek, who's leading the charge against instant runoff voting in Minneapolis, didn't see many hopeful signs at today's hearing.
"Isn't there a burden of confusion on the voter going into the booth trying to figure out just how this works?"
- Chief Justice Eric Magnuson

"As of right now, it doesn't look good for us," said Cilek, the executive director of the Minnesota Voters Alliance.

Cilek's group argues instant runoff voting violates the constitutional principal of "one person, one vote." They also say it undermines equal protection of the law and freedom of association. But Cilek got the feeling the justices on the Minnesota Supreme Court weren't buying those arguments.

"Based on the questions that they were asking, some of the justices seemed really confident in where they were going, when it's clear to me that they didn't understand how this works," Cilek said.

Minneapolis voters approved instant runoff voting in 2006. It applies only to city offices like mayor and city council, and is scheduled to take effect this year. A lower court ruled the system constitutional, but opponents appealed that decision to the state Supreme Court.

During the oral arguments, Justice G. Barry Anderson pointed out that changes to voting procedures are not necessarily unconstitutional.

"We all assume that the secret ballot is inviolate," Anderson said. "But in fact, that's a fairly recent development. For many decades, there was no such thing. So how is this principle here different than some of these other election procedures we've had over our history?"

"Heretofore, every time that someone votes, the ballot is counted as a numeric one, an indivisible whole," Kaardal replied.

On an instant runoff ballot, a voter gets to indicate a first choice candidate, a second and a third. Election officials begin by tallying all the first choice votes, and if no candidate has a majority, then the candidate with the fewest votes is eliminated. Those votes get redistributed to the voter's second choice.

The process is repeated until one candidate gets more than 50 percent of the vote. In multiple-seat races, like park board, there is an additional step that involves redistributing fractions of votes to second and third choices.

That part of the process concerns Justice Lorie Gildea.

Attorney Erick Kaardal

"If you're taking who I voted for and changing it into a vote for somebody else, how is that not giving my vote less effect than the vote on somebody else," Gildea asked.

"The voting officials, your honor, are not changing your vote for somebody else," Minneapolis City Attorney Susan Segal said. "You have cast that second-choice ballot."

Instant runoff voting advocates argue the system leads to elections that better reflect the will of the voters, because it takes into account more information about their political wishes.

"This allows you to go in and mark your ballot so the ballot is read: 'Look, I want to support candidate A for as long as he's viable. And if he's not viable, then I want to support candidate B, but not candidate C. This is not a burden at all," said James Dorsey, a lawyer for the group FairVote Minnesota.

Opponents argue the burden comes if voters don't want to make a second or third choice. In those cases they could have less voting power than someone who does want to rank the candidates. And Chief Justice Eric Magnuson pointed out there's another potential burden.

"Isn't there a burden of confusion on the voter going into the booth trying to figure out just how this works?" he asked.

"There is a risk of confusion to the voters and that's exactly why the city of Minneapolis will be, and is undertaking, a large voter education outreach program," Segal said.

Justice G. Barry Anderson called instant runoff voting "enormously complex" and said he's skeptical that voters will understand the program.

But Anderson also said: "Let's assume that this is really bad election policy. How is it unconstitutional?"

In 1915, the Minnesota Supreme Court struck down another alternative voting system. The city of Duluth used ballots that also asked voters to rank the candidates. But Duluth used a completely different system for tallying the votes. The Supreme Court must decide whether the Minneapolis system poses the same constitutional problems.

Minneapolis has asked for a ruling by June 11, so it has time to prepare for the election. But instant runoff opponents have vowed to bring their case to the U.S. Supreme Court if they lose in Minnesota.