by Hugh McQuaid CTNewsJunkie
A ranked-choice voting policy in elections for positions like governor or state legislator would be unlikely to survive a challenge under the Connecticut Constitution, Attorney General William Tong concluded in a formal opinion released Tuesday.
Ranked-choice voting – otherwise known as an instant run-off election – is an electoral system intended to boost the viability of third parties and increase civility among candidates by allowing voters to order their choices by preference rather than choosing just one. If their top choice is eliminated, a voter’s ballot is cast for their number two pick until one candidate reaches 50%.
State lawmakers considered, but declined to pass, five separate ranked choice bills during last year’s legislative session. Proponents hope to advance the issue during the session that begins on Feb. 7.
However, in an 11-page letter to the House speaker, Tong found that, depending on the election, ranked-choice voting “would likely not survive a constitutional challenge.”
“This is a close call,” he wrote. “But I must conclude that legislation implementing RCV in state general elections would not pass constitutional muster absent a constitutional amendment.”
Tong’s opinion does not apply to elections for federal or municipal offices nor does it examine primary elections. Those questions were beyond the scope of the opinion, he said. Rather, it pertains to general elections in state legislative races as well as for constitutional officers like the governor or the state comptroller, for instance.
In an interview Tuesday, Rep. Josh Elliott, a Hamden Democrat and supporter of ranked elections, called the opinion disappointing, but said it would not impede his plans to advance a proposal allowing the system in presidential primary elections as well as a municipal option.
“If people decide after we’ve implemented these things that they would like broader implementation, then we can look at changing the state constitution,” he said. “The opinion is narrowly tailored and leaves plenty of opportunity for advocates of ranked-choice voting such as myself to be able to continue on the path undeterred.”
After years of trying, advocates of early voting succeeded in the complicated process of amending the constitution in 2022. Lawmakers adopted a policy during the last session, which takes effect this year.
Tong said the constitutionality of ranked-choice voting under Connecticut law was a “complex and novel question, which no Connecticut court has examined.”
Although the state constitution does not expressly prohibit a ranked-choice voting system, Tong pointed to problems, which he said may be used to prohibit it.
For instance, Tong said other states had wrestled with the question of whether RCV violated a “plurality provision,” which generally means that the candidate who earns the greatest number of votes wins the election.
That provision comes into play because, under a ranked system, election officials continue to retabulate results based on voter preference until a candidate achieves a majority, rather than a plurality.
Because the framers of amendments to Connecticut’s constitution did not expressly permit RCV when framers in other states had, Tong reasoned they did not wish to allow it.
“[S]ignificantly, the framers of the 1901 amendment might well have known about RCV—which was then part of the public policy discourse—but, unlike the Oregon framers in 1908, declined to explicitly authorize it,” he wrote. “I must conclude that RCV would likely not be constitutional under Connecticut’s Plurality Provisions.”
Tong also pointed to another provision of the constitution that requires that votes be counted and declared in an open meeting.
It was unclear, Tong said, how that process would play out in a multi-town election under an RCV system, where a voter’s final choice hinges on a run-off process that turns on the selections of other voters.
“This is not just a (significant) logistical concern,” Tong wrote. “Logistics here are bound up with the background assumptions that underlie our elections system. The framers and amenders of our constitution wrote with a specific type of election infrastructure in mind. It seems relatively unlikely that they left the door open for a kind of election that would be at the very least impracticable given the localized election system they knew was in place across the state.”