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Prop E approval OKs ranked-choice voting, with legal questions ahead

Monday, May 3, 2021 by Chad Swiatecki

Austin voters came out in favor of a new system for conducting local contested elections beginning in 2022, though how or if that change will be made appears unclear.

Proposition E was approved 87,516 to 63,510 on Saturday, with nearly 60 percent of voters showing support for a switch to ranked-choice voting for City Council and mayoral elections. The amendment to the city charter is intended to eliminate runoff elections, which typically have far lower voter turnout than general elections, via a process of throwing out candidates with the lowest vote totals and counting second-, third- and subsequent-place votes until a majority winner is reached.

The practice is gaining popularity in cities across the country, but some election officials and city staffers question whether ranked-choice voting is allowed under Texas state law.

Before the election, a city spokesperson told the Austin Monitor that state election law specifies how ballots must be set up to allow voters to support an official candidate or write-in option.

“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.”

Jim Wick is the campaign manager for Austinites for Progressive Reform, the group that pushed for Prop E as well as several other propositions decided over the weekend. He said state law doesn’t explicitly prohibit ranked-choice voting, which would give Austin the ability to implement the change in time for the 2022 City Council and mayoral elections.

“I hope city staff will take another look at that and consider the will of the voters, because with state law there are several attorneys that feel state law does not address ranked-choice voting since it is not mentioned. I’m not sure how someone could think something is illegal under state law when it isn’t mentioned,” he said. “Because we are a home-rule municipality, if state law doesn’t specifically forbid something then we’re allowed to do it, and I hope all parties would respect the will of the voters who spoke pretty loudly that they don’t want elections decided in runoffs and they want ranked-choice voting.”

APR and other proponents of ranked-choice voting point to the elimination of runoff elections and the ability to support more than one candidate as the two clear benefits of the change. The belief is that voters would have to consider a candidate’s overall electability in their voting decision, which would put more attention on the issues and opinions at play among various names on the ballot.

“Every voter has an experience with the problems that ranked-choice voting solves … they know how inconvenient runoff elections are and how low-turnout those elections are and understand the challenge of trying to choose between your heart and your brain on the ballot where you want to vote for someone who has a message that resonates with you, but you are also concerned about electability,” said Andrew Allison, chair of APR.

Allison said his group would be willing to get involved in any legal argument with city administrators over the question of the legality of ranked-choice voting.

“Nowhere in state election law is ranked-choice voting mentioned. We hear that ranked-choice voting is illegal, but the city manager and staff cannot point to a provision of state law or a case in the Texas courts that says RCV is illegal … essentially they’re taking Greg Abbott’s word for it,” he said.

“We would say we are a home-rule city and voters overwhelmingly passed RCV last night and voters expect their government to enforce the laws that they passed. City government should listen to the voters and do everything in its power to expeditiously bring RCV to Austin as nearly 60 percent of voters demanded. If they don’t, then we’ll be there to hold them accountable.”

Photo by Larry D. Moore, CC BY-SA 3.0, via Wikimedia Commons.

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