At 10:30 PM 11/8/2008, Kathy Dopp wrote:
Abd ul,
From what I can tell, having read all of the affidavits and responses
of the plaintiffs (but not being an attorney), the case against IRV is
only in very small part based on BvS, and is based more on the
requirements of the US and Minnesota constitutions that IRV/STV
violate.
Here is the problem they face: the matter has been tested many times.
The only state which has found, to my knowledge, preferential voting
to be unconstitutional, per se, is Minnesota, through Brown v.
Smallwood. STV has been in long use. Instant Runoff Voting has been
in long use.
The plaintiff argues rights that only Brown v. Smallwood previously
found. They also argue a totally new right, the "right to associate"
with a candidate, and they raise issues of ideology, which likewise
have no foundation in constitutional law and are entirely new, as far
as I know.
The only grounds they have of any reasonable likelihood of prevailing
is that IRV is preferential voting and Brown v. Smallwood explicitly
outlawed preferential voting, not merel the specific method used in
Duluth, Bucklin voting.
The rights the plaintiffs are asserting, quite simply, don't exist,
or at least there is no legal precedent for them, except for Brown v.
Smallwood.
"The case against IRV" which is being presented is essentially that
it is a punk method, that it is hard to audit, etc. These are issues
which are normally resolved, in the absence of specific legislation,
by deliberative bodies or procedures. I.e., the judge is either the
elected representatives of the people, or the people themselves in
the initiative process. The courts will not second-guess the
decisions of those, discarding them in favor of invented or newly
discovered rights. There are exceptions, where courts have
reinterpreted previous constitutional rights to include new
territory. Same-sex marriage. Privacy rights. Etc.
However, that's not the rule. Brown v. Smallwood, which likewise
invented a new right, the right of a voter to vote for the candidate
of the candidate's choice, without "interference" from votes from
other voters, was idiosyncratic and not confirmed by any other court
in the many years that have elapsed. Preferential voting has been
used in many places. The only other example I know of it being
terminated by an unconstitutionality decision was Oklahome, where the
decision hinged not on the concept of preferential voting, but on the
fractional vote values they assigned to lower preferences.
There is a superficial resemblance in the Oklahoma decision to the
vote fractions used in multiwinner STV, but they are really entirely
different. The fractional votes in Oklahoma had the effect of giving
those who preferred a minor candidate less say in the "real
election." Whereas STV uses fractional votes to preserve the value of
the voter's vote while not being unfair to others. That is, STV
fractional votes make it happen that a voter more commonly exercises
one full vote in the election that actually has an effect. This is
opposite to the Oklahoma case.
It may be very likely that BvS could be overturned, yet IRV/STV still
declared unconstitutional on grounds that would *not* apply to most
other alternative voting methods.
It's highly unlikely. Either BvS will be confirmed (which is a loss
for election reform) or it will be entirely discarded and IRV will be
allowed, as it has been allowed everywhere else. There is a
possibility, though, that, if FairVote arguments prevail, BvS will be
confirmed, but considered not to apply to IRV because of its Later No
Harm compliance. That would be bad law. BvS did not depend or hinge
on Later No Harm. The possible mention of it was dicta, not central,
and not repeated in the restatements of the grounds for the decision.
Other statements made it clear that the very idea of a voter voting
for one, faced with other voters voting many alternate preferences,
was rejected by the court.
Don't mistake this for an opinion that the BvS court was correct. It
wasn't, it was a travesty of a decision. But it is law in Minnesota,
until and unless overturned.
I read the plaintiff's arguments carefully. They are defective and
mostly are claims that IRV has this or that supposedly bad
characteristic -- or, for that matter, really bad characteristic --
but such problems don't make the method unlawful. The Court, to find
IRV unconstitutional, would have to find Plurality and Top Two Runoff
unconstitutional -- unless it relies on the BvS precedent, in which
case it would continue to prohibit all forms of preferential voting.
Note that the BvS court said that election method performance, or the
superiority of preferential voting -- which it practically
acknowledged -- wasn't the issue. The issue was that a change like
that involved in bringing preferential voting was, to them, a
constitutional change requiring a constitutional amendment. The court
challenged the Bucklin supporters to go through that process. And,
apparently, the reformers didn't. I've seen no record of any effort
to try. But it was a long time ago.
Pigs may fly, and legal surprises come even more frequently, but the
best reason I can give why I expect that a new basis for prohibiting
STV isn't going to be found in Minnesota is that STV has been used
in, according to Wikipedia, 22 American cities, mostly in the first
half of the twentieth century. See the articles:
http://en.wikipedia.org/wiki/History_and_use_of_the_Single_Transferable_Vote#United_States
http://en.wikipedia.org/wiki/List_of_US_cities_that_have_used_STV
There was long opportunity to challenge it. IRV was challenged in
Michigan, when it was implemented in Ann Arbor, and the challenge was
rejected. The various implementations of preferential voting, which
include the Bucklin form as well as IRV and STV, were lost not
because of legal problems, usually, but because of political action.
In Ann Arbor, the Republicans, understandably upset that IRV had
allowed a Democrat to win the mayor's office, whereas they had been
accustomed to enjoying the benefits of vote splitting due to the
Human Rights Party, ran an initiative to can IRV and prevailed. Was
it a coincidence that the initiative election was scheduled while
students, a big part of the electorate that, and particular of the
Human Rights Party membership, were out of town? Probably. Surely a
reputable political party like the Republicans would not stoop to an
anti-democratic trick like that....
STV, for proportional representation, provides far better democratic
access to election than existing systems. Ruling it unconstitutional,
on the basis of real or asserted flaws, would be perverse, just as
the original Brown v. Smallwood decision was perverse. The example
election clearly showed how Bucklin worked, assembling a majority for
the winner. The only reason the plaintiff's candidate didn't win is
that supporters of Smallwood, some of them, had a different favorite.
Under Plurality, usually, most of these would have voted for
Smallwood, I suspect. People understand that our voting systems don't
reward naive vote-for-your-favorite, end of question. It's entirely
possible that if the method hadn't been Bucklin, there would have
been fewer candidates. Clearly Smallwood would have prevailed in a
two-candidate election. So why should the existence of other
candidates cause Smallwood to lose?
The reason that the Minnesota court gave was pretty frustrating to
this reader. They first noted that what mattered was the number of
voters, not the number of marks on the ballot. Then, in examining the
Duluth election, they noted that the number of marks exceeded the
number of voters, and obviously they considered this a problem.
Smallwood was supported by the most voters, period. That should have
been the end of it. Instead the Smallwood court invented an entirely
new right to be free of interference from the second or subsequent
choices of other voters. Instead of considering the voting process as
a means of determining what candidate is supported by the most voters
(i.e., would prevail in a contest with all others, pairwise), they
seem to have decided that it was a means for individual voter
expression, a "freedom" of some kind. There was an excellent dissent
written, it's well worth reading the entire decision, you can find it
by googling "Brown v. Smallwood" -- a copy is hosted by rangevoting.org.
Apparently the large weight of legal opinion at the time, in
Minnesota, was that preferential voting was constitutional. The court
explicitly disregarded that. They also explicitly disregarded the
precedents of other courts.
So, now, the plaintiffs suing the City of Minneapolis are, you think,
likely to prevail against such weight of opinion? It still exists.
There is lots of precedent in other states. To me, the mystery is why
Brown v. Smallwood has lasted for so long.
It might be because Top Two Runoff is actually a pretty good method.
It has one obvious flaw, but it also has some excellent
characteristics, largely overlooked by voting systems theorists. As a
potentially two-stage method, it brings more voter information and
intelligence to the process. And if write-ins are allowed, a
moderately awakened electorate can use Top Two Runoff to find
Condorcet winners, providing that preference strength is sufficient
to warrant the effort. As I've been mentioning, simply because the
fact seems to be little known, the mayor of Long Beach was re-elected
in a runoff election where the mayor, plurality in the primary, was
still prohibited from being on the runoff ballot (I'd say that was
bad law!), then gained a plurality again in the runoff. (A majority
was not reached because there was a second write-in candidate who got
significant votes, enough to keep the mayor just below a majority.)
And the flaws of Top Two Runoff could be fixed. The basic idea is to
attempt, at least, to require a majority for election. This, for
starters, takes the method outside of the realm of Arrow's Theorem.
If a majority is absolutely required, in fact, and if write-ins are
allowed, the method will never elect anything other than a Condorcet
winner, practically by definition. If not, *the reasons are
political, not due to the election method itself.*
But probably completing an election in a reasonable period of time,
even though in majority-required elections -- this is the norm for
Robert's Rules -- long series of ballots are rare, would be
considered more important than absolute insistence on a majority.
Using, then, advanced voting methods in the primary and possibly in
the runoff, methods which are more likely to find a majority, could make sense.
For example, Bucklin finds majorities more efficiently than Instant
Runoff Voting, which finds them more efficiently than FPTP
(Plurality). Requiring full ranking always finds what the Australians
call an "absolute majority," but it really only does this by coercing
votes, on pain of one's vote being disregarded as informal.
Bucklin could be used for a primary. If no majority is found, the top
two candidates, after all ranks have been pulled in, could be on the
ballot in a runoff, but the runoff could be Approval. This would
allow voters to vote for a write-in *without risk*, if they prefer a
candidate that was eliminated in the primary (or that appeared late).
But, of course, these are all forms of preferential vote. Even
Approval is a kind of alternative vote. ("If not A, then B," at the
same time as the voter is saying "If not B, then A." (The voter gains
flexibility, but loses the discrimination between A and B. So you
don't vote this way if the difference between A and B seriously
matters to you and you think your favorite might win.)
Voting is dangerous.
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