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.