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Ranked-choice voting proposal faces legal, legislative questions after May election

Friday, April 2, 2021 by Chad Swiatecki

There are two questions at play for Proposition E, which would seek to create ranked-choice voting in city elections. One of those questions will be decided by voters in May, while a larger one will likely play out between city administrators and lawmakers at the Capitol over whether the election format is legal in Texas.

The theory behind the ranked-choice system is fairly straightforward: In elections with more than two candidates, voters would select their first, second, third choices and beyond. If no candidate wins a majority, then the candidate with the fewest votes has their first-choice votes eliminated from the pool, with the second-choice votes from those ballots then taking precedent.

That thinning and recalculating of votes continues until a majority is reached, with the net effect of eliminating the need for runoff elections that historically result in far lower turnouts to decide City Council or mayoral seats.

Prop E is one of the slate of proposed city charter amendments pushed by Austinites for Progressive Reform. That group’s chair, Andrew Allison, said the intent of the change is to increase voter turnout in decisive city elections and shift the tenor of local campaigns so candidates find the best way to earn high rankings instead of facing an all-or-nothing ballot scenario.

“With ranked-choice voting we’re able to increase turnout substantially in city elections and make sure turnout is larger and more representative of our diverse community than it is today,” he said. “In ranked choice you want people to rank you number one, but if they’re not going to rank you number one you also want them to consider you for their second or third choice so candidates don’t attack each other as personally or aggressively. There tends to be more focus on the issues and elections feel more cordial.”

What would happen after a possible vote in favor of Prop E is unclear since the city’s legal staff is of the view that the practice is not allowed under state law.

Asked about the legality of ranked choice and what would happen if the ballot measure is passed and added to the charter, a city spokesman said via email: “As acknowledged by the individuals who drafted the charter amendment, ranked-choice voting is currently not allowed under the Texas law. The Election Code has specific provisions for how the ballot must be set up, instructions on the ballot (vote for none or one), and how to vote for write-in candidates.

“The Texas Election Code (Sec. 275.002) provides that in cities with a population of 200,000 or more, a candidate must receive ‘a majority of the total number of votes received by all candidates for the office’ in order to be elected to office. The term ‘majority’ is understood as more than 50 percent of the original un-reassigned votes, according to Secretary of State Election Law Opinion HC-1 … Since ranked-choice voting is in conflict with state law, ranked-choice voting would not be implemented in Austin until or unless the state legislature amended the Texas Election Code to allow it.”

The legal question surrounding the ranked-choice format could be clarified somewhat at the state level during the current session of the Legislature. A pair of bills being considered would make the practice allowable in primary elections and available as a ballot option for military and overseas voters.

City Council Member Leslie Pool said she wants the issue decided for the state before the city presses forward.

“I support RCV as a ‘one and done’ in primaries, but not in the general election. With multiple races competing for attention in the general election, runoffs can provide the opportunity to learn more about the candidates vying to represent you,” she said via email. “To avoid confusion between local jurisdictions, I prefer that the legislature make the change so that it’s adopted statewide and is standardized.”

Allison said the May election could help encourage state lawmakers to approve ranked choice throughout Texas, with the goal of the 2022 city elections using that format.

“We should pass this now because it will show that cities want to use ranked-choice voting and it will kick-start momentum for the conversation that is happening at the Legislature on this issue,” he said. “This will be a tool organizers can use to pass ranked-choice voting at the state level if that is necessary, but we also believe the city doesn’t need to wait for that and can move forward now. ”

Photo made available through a Creative Commons license.

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