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Can Cities in South Dakota Adopt “Ranked Choice Voting”?
What is Ranked Choice Voting? Is it fair? Is it legal in S.D?

Ranked Choice Voting is a new idea being explored in several states currently. Ranked Choice is a form of voting that gives voters more direct democracy. Now, Ranked Choice Voting is being circulated through South Dakota, by those who favor the idea.

Former Attorney General Jason Ravsnborg, published written legal opinion 2022-01, in response to a special request by Janet Brekke, the former Chair of the Sioux Falls City Council. Brekke, on behalf of citizen lobbyist Jeanell Lust, asked the A.G to determine whether or not Ranked Choice Voting is legal for the City of Sioux Falls to implement, as a "home rule charter."

The purpose of Ranked Choice Voting, according to those who support such a method, is to "cancel out, and protect the voters from block voting." It allows voters to vote for their first, second, third and so on, choice of candidate regardless of party affiliation, or district.

Similar to current voting, if a candidate in the general election wins more than 50% of first-choice votes, they win the race outright. However, if no candidate wins more than 50% of the vote, Ranked Choice eliminates the candidate with the least amount of first-place votes and then redistributes votes to the candidates with the most first and second place votes. Then the scores would be recalculated, over and over again, until one of the candidates finally won a majority as the second, third, or even fourth choice of voters.

In the end, a voter’s ballot might wind up being cast for the candidate he ranked far below his first choice. A candidate, for example, that the voter might have strong political objections to, and for whom they would not have voted for in a traditional voting system.

For example, during the 1992 Presidential election between Bill Clinton (D), George Bush Sr.(R), and third party Independent candidate Ross Perot, voters would have been asked to vote for all three candidates ranked by first, second and third choice. Being that Ross Perot only brought in 18.9% of the vote, he would have been eliminated under a Ranked Choice system, with his 19.7 million votes redistributed between his supporter's second choice candidate. If, for example, 10 million people had Bill Clinton as their second choice, and the other 9.7 million had George Bush Sr. as their second choice, those votes would have been redistributed towards the overall totals for Clinton and Bush.

Those in favor of ranked choice, argue that downed ballot candidates dilute the voting power of one partisan candidate over the other. In a ranked choice setting, candidates would instead benefit from voters who backed a third party candidate, getting those votes if the third party didn't get the majority vote. However, others argue that this is another tactic by reformists, to rig the system and disenfranchise voters.



In 2016, Democratic Governor Jerry Brown vetoed a bill to expand ranked choice voting in his state, saying it was “overly complicated, confusing” and “deprives voters of genuinely informed choice.” Brown added that such a system would present many opportunities to rig the electoral system.

In 2018, the first-ever general election for federal office in our nation’s history was decided by Ranked Choice Voting in the Second Congressional District of Maine. Jared Golden (D) was declared the eventual winner, even though incumbent Bruce Poliquin (R) received more votes in the first round. There were two additional candidates in the race, Tiffany Bond and William Hoar. However, the Maine Secretary of State, Matt Dunlop, “exhausted” or threw out a total of 14,076 ballots of voters who had not ranked all of the candidates. see Baber v. Dunlap

A study published in 2015, reviewed 600,000 votes cast using ranked choice voting in four local elections in Washington State and California. The study found that “the winner in all four elections receive[d] less than a majority of the total votes cast.” This is due to a phenomenon known as "ballot exhaustion," where voters only list their top two or three candidates, particularly when there are candidates on the ballot for whom they would never even consider voting. Thus, if a voter only ranks two of the five candidates and those two are eliminated in the first and second rounds of tabulation, their choices will not be considered in the remaining rounds of tabulation. This ballot exhaustion leads to candidates being elected who were not the first choice of a majority of voters, but only a majority of “all valid votes in the final round of tallying.” Thus, “it is possible that the winning candidate will fall short of an actual majority,” eliminating the influence of many voters over the final outcome.

As of July 2022, 55 cities, counties, and states are projected to use RCV for all voters in their next election. These jurisdictions are home to over 11 million voters, and include 2 states, 1 county, and 52 cities. In addition, military and overseas voters from six states are set to cast RCV ballots in the next federal election runoff.

In Alaska, voters approved a measure titled "Alaska Better Elections Implementation," as a statewide method of conducting public elections. As of August 23, 2022, the process of electing a replacement for Congressman Don Young's term (Alaska's lone U.S House Seat) will not be concluded until election officials finalize the transitioning vote counts from the other candidates to the remaining candidates, until 50% plus-one can be determined.

As it takes extra time to go down each ballot and reapply votes,
it's possible Alaskan voters will not know who won the special House election for awhile. On election night, and for the 15 days after, the state will only report first-choice results. If none of the three candidates, running to serve the remainder of Young's term have exceeded the 50% threshold, the state will apply the ranked choices, eliminating the last-place candidate and redistributing their ballots. State officials have said they will report the results on, or about Aug. 31, nearly two weeks after the election date.

The topic of Ranked Choice Voting has been brought up in South Dakota on numerous occasions. Most recently, Jeanell Lust of Sioux Falls brought the issue before the City Council's Charter Revision Commission on December 8, 2021, asking that it be placed on the agenda.

As part of her proponent testimony, Lust highlighted the fact that the city is a "home rule charter" form of government, which allows the executive, and legislative branch to adopt any such legislation it deems necessary, in order to self govern. In Lust's expressed opinion, the law allows the city to adopt Ranked Choice, because by law the people have the right to 'express' themselves, and establish any such electoral method, that voters approve.

Lust went on to highlight the 2010 City Election, where Mike Huether and Kermit Staggers did not get more than 26% of the vote, while four other candidates shared in the remaining balance, providing evidence that none of the candidates had a clear majority. She also pointed out that run-off elections can cost city residents up to $80,000 dollars per occurrence. Commissioner Carl Zylstra inquired about previous research done on this topic and whether or not state law already addressed ranked choice voting in the past. Soon after, Commissioners quickly voted to not move forward with the proposal, electing instead to ask the Attorney General for a legal opinion.

On May 04, 2022, that legal opinion was issued.

"In your response to your inquiry, I find that both ranked choice voting and approval voting present electoral systems that lead to the candidate with the highest number of votes – as cast according to the voting requirements of each system – declared the winner of the election. This is in accord with the provisions of SDCL 9-13-25. Further, I have determined that approval voting, as described in this opinion, does not conflict with state law concerning municipal elections found in SDCL 9-13-25 through 9-13-27.1. A home-rule-chartered municipality may adopt approval voting for its municipal elections. However, it is my opinion that ranked choice voting conflicts with the statutory requirements concerning runoff elections found in SDCL 9-13-26.1 and 9-13-27.1. I conclude that home-rule-chartered municipalities may not adopt ranked choice voting in that it conflicts with state law." - Legal Opinion #22-01

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--Mike Zitterich

Post Date: 2022-08-29 08:40:13Last Update: 2022-08-28 22:07:40


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