Would Use of Ranked Choice / Instant Runoff Voting Violate the Nevada Constitution?

When the Nevada Election Modernization and Reform Act (NEMRA) was filed as Bill Draft Request (BDR) 1149 for the 2015 session of the Nevada Legislature, the Legislative Council Bureau (LCB) issued the following opinion:

“After researching the constitutionality of the BDR, we believe that the "instant runoff" system violates: (1) Section 4 of Article 5 of the Nevada Constitution, which requires that candidates "having the highest number of votes" be declared elected; and (2) Section 14 of Article is, which provides that a candidate wins an election by receiving a "plurality" of votes (rather than a majority of votes). The proposed instant runoff system violates these provisions because it prohibits a candidate who receives the highest number of votes from being declared the winner unless the candidate receives a majority (i.e., 50 + 1) of votes. (According to our research, a number of municipalities nationwide have implemented instant runoff systems, while other states have implemented instant runoff systems only in limited circumstances. In each of those instances, the constitutions for the states do not have analogous provisions that would have prohibited instant runoffs in the municipalities or in the limited circumstances that the states were using instant runoff for. California's original constitution from 1849 had a provision similar to the "plurality" provision of Section 14, Article is, but that provision was not retained when California adopted a new constitution in 1879.)”

This opinion resulted in the bill, SB 499, being introduced as a modified top-two non-partisan open primary. Following a hearing before the Senate Legislative Operations and Elections Committee, the original language of the bill was replaced with language extending the candidate filing deadline for minor party and independent candidates. That language was passed by both chambers of the legislature and approved by the governor. But does Ranked Choice / Instant Runoff Voting (RCV / IRV) violate the two referenced sections of the state Constitution? Probably not.

Section 4 Article 5 of the Nevada Constitution addresses the transmittal and canvassing of votes of the general election.  RCV / IRV is a process used to determine the candidate with the highest number of votes. The question is what constitutes a “vote”. According to a former director of the Legislative Counsel Bureau, language in the bill stating the ranking of candidates constitutes a “vote” for the purpose of Section 4 Article 5 and that the candidate who is determined to have the highest number of votes under the process is determined to have the highest number of votes under the meaning of Section 4 Article 5 should resolve the constitutional question.

Section 14 Article 15 is one sentence; “A plurality of votes given at an election by the people, shall constitute a choice, where not otherwise provided by this Constitution[.]” The constitutionality of RCV / IRV is being questioned because it is a common belief that RCV / IRV requires the eventual winner of an election to have received a clear majority of the total votes cast. This is not correct. Because ballots become exhausted before the final round of tabulation or some voters do not mark a second choice, RCV / IRV is in fact a plurality voting system.  The winner does have a majority of votes counted in the final round but not necessarily a majority of the total votes cast. This can be seen in the results of the 2014 election for Mayor in Oakland, California (63.2% final, 46.5% total votes cast) and the 2011 elections for Mayor in San Francisco, California (59.8% final, 43.4% total votes cast) and Portland, Maine (55.8% final, 45.9% total votes cast). A 2003 opinion by the Attorney General for the state of Texas also supports that RCV / IRV is not a majority voting system. Texas law requires winners of an election receive a majority of the total votes cast. The opinion prevented a city from implementing RCV / IRV because it does not meet this requirement.

I am currently working on getting NEMRA, either in its original form or slightly modified, back before the Nevada legislature in 2017. An important part of that process is addressing the concerns of the LCB. The above facts represent the start of that process.

2004 and 2012 – Milestone Years In The Migration Away From The Major Parties

I was asked what the trend of Nevada voters leaving the Democratic and Republican Parties looked like over an extended period of time. When did the migration start? Here’s the answer going back to December, 2000.

In 2004, the Independent American Party (IAP) almost doubled in registrations jumping from 17,707 in December 2003 to 33,219 at the end of 2004. The IAP continued to increase registration, mostly to the detriment of the GOP. Was this an attraction to the more conservative platform of the IAP or were voters drawn by the words “Independent” and American? The answer really is not important. What is significant is that voters no longer identified with one of the major political parties.

Then in 2012, Non-Partisan increased by almost 33 percent over 2011 to 227,863. Migration away from the Democratic and Republican Parties continued. The GOP fell below 40 percent registration in 2008 and in 2014 the Democratic Party experienced the same fate.

2016 is a presidential election year. As the eventual nominees become known, it will be interesting to see if the trend away from the major political parties continues; note the changes in 2008 and 2012.

As 2016 Campaigns Start, Democratic and Republican Parties Loose Percentage of Registered Voters While Non-Partisan Grows

With the first GOP presidential primary debates only days away, how will the campaign landscape impact voter registration? If the just released July, 2015 numbers from the Nevada Secretary of State’s office are any indication, the trend of voters leaving the two major political parties will continue.

Nevada’s active voter rolls increased by 8,098 over June, 2015. However, while all categories showed an increase in raw numbers, only Non-Partisan increased its percentage share. Of the 8,098 new voters, 37.2 percent chose not to affiliate with either the Democratic or Republican Party. (29.4% Non-Partisan / 7.8% minor parties) That number is greater than either the percentage who registered as Democratic (33.4%) or Republican (29.7%).

In Clark County, the increase in Non-Partisan registration far out-paced that of either of the two major parties; 1.11 percent versus 0.65 Democratic and 0.77 GOP. Non-Partisans now compose over 20 percent of Clark County active registered voters. Adding in minor party registrations, over 26 percent of active voters in Clark County choose not to affiliate with either major party.

Registration numbers in Washoe County show an even greater increase of Non-Partisan versus major party registration; 0.78 percent Non-Partisan, 0.4 percent Democratic, 0.3 percent Republican. 26.5 percent of active Washoe County voters (19% Non-Partisan, 7.5% minor party) now choose not to affiliate with the major parties.

A new demographic I’ll start tracking is the trend in the rural counties. Since January, 2015, growth of voters registered as Non-Partisan or to a minor political party is quadruple that of the Democratic or Republican party. Over this period Non-Partisan registration increased 2.9 percent and now represents 17 percent of the rural voter registration. Minor party registration also increased 2.5 percent. The Democratic party lost four voters and the GOP increased only 0.57 percent. Just under 25 percent of rural voters do not affiliate with either major party.

In the 18 – 34 year old demographic, the month over month increase of active voters registered as Non-Partisan or in a minor party doubled the growth of either the Democratic and Republican party; 1.8 percent (1.18% Non-Partisan, 0.62% minor party) as compared to 0.81 and 0.92 respectively. Just under 30 percent of voters in this group are now registered as Non-Partisan and the total not affiliating with either major party is approaching 40 percent.

Similar growth was also recorded in the 55 and over age group. Non-Partisan registration grew by 0.88 percent. Minor party registration in this age group increased 0.85 percent. Comparatively, Democratic registration increased by only 0.54 percent and GOP registration by only 0.6 percent. 19.2 percent of voters in this group, almost 44 percent of all active voters in Nevada do not affiliate with either of the two major political parties.

As the 2016 campaigns shift to high gear and voters’ interest increases, it will be interesting to see if voters continue to distance themselves from the two major political parties. Check back each month to find out.