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Wednesday, June 18, 2008

Instant Runoff Voting Not Constitutional says St. Paul MN City Attorney - not obligated to place the proposed IRV charter amendment on ballot

June 18, 2008. St. Paul Minnesota.

A proposed amendment to require St. Paul to conduct local elections using instant runoff voting is not constitutional, according to John Choi, City Attorney for Saint Paul. The City Council may put the amendment on the ballot but it is not recommended.

At issue is a petition that is deemed to have sufficient signatures on it. Joseph Mansky, the Ramsey County Elections Manager expressed five issue of concern with the petition's substance.

City Attorney Choi answers in a letter today to City Council President Cathy Lantry, some excerpts below:

Questions presented:

1. Does the City Council have the legal authority to not submit a charter proposal to the voters?
2. Is whether the recently filed petition for a charter amendment that proposes Instant Runoff Voting (IRV) constitutional and without any legal defects?
3. As the City's chief legal officer, please share with us any legal advice about best managing the City's liabilities and other legal considerations that you may deem important for the City Council to consider in determining whether to put the proposed IRV petition on the 2008 Ballot.


This office has anticipated these questions and over the past eighteen (18 months has thoroughly researched, reviewed and considered all of the legal issues associated with IRV. During that time, I enlisted the resources of two assistant city attorneys and the deputy city attorney of the civil division for independent analyses of IRV's legality. Although it is impossible to predict with absolute certainty the judicial response to IRV, all three attorneys independently concluded that IRV is more likely than not to be determined unconstitutional and suffering from other legal defects by a reviewing

...I am keenly aware that voters in the City of Minneapolis recently approved IRV and the parallel that plays regarding the extraordinary effort put into gathering the petition signatures to place IRV on the ballot in Saint Paul. I am also aware of the intense local public interest in IRV in Saint Paul. It is, however, not this office's role to consider the policy wisdom or popularity of IRV but only to answer the legal question you have presented.

Accordingly, it is the professional opinion of the City Attorney's Office that for the reasons stated herein, IRV is more likely than not to be determined by a reviewing court to be in violation of the Minnesota Constitution. In addition, a reviewing court would likely rule that the City is precluded by Minn. Stat 205.02 from enacting IRV as its voting system. If the City Council so chooses, the City is not obligated to place the proposed IRV charter amendment on the ballot. ... Case law, however has long recognized a city's right to refuse to place a manifestly unconstitutional charter amendment on the ballot.

Legal considerations the Council may deem important to consider in determining whether to put the proposed IRV petition on the 2008 Ballot:

The Council is faced with two permissible options: to place the IRV petition on the ballot; or to refuse to place it on the ballot. While most petitions are placed on the ballot as a matter of course, the Minnesota Supreme Court has repeatedly recognized a city's legitimate need to avoid"a futile election and a total waste of taxpayer's money." Davies, 316 N.W.2d at 504.

This concern is particularly compelling for two reasons: First, as described in Mr. Mansky's letter, IRV's cost is particularly high; and second, the City of Minneapolis is currently in litigation over the validity of an IRV provision adopted by its voters. That case, likely to be appealed regardless of the outcome at the district court level, should resolve the question of IRV's legality and constitutionality. The Council could reasonably conclude to wait for a decision in that case before placing the IRV petition on the ballot....


Based on the foregoing, we answer your questions as follows: The City is not obligated to place the proposed IRV charter amendment on the ballot. The City is expressly precluded from enacting IRV as its voting system by Minn. Stat 205.02 and it is not impliedly authorized by the Minnesota Constitution. The Council, to avoid "a futile election and a total waste of taxpayer's money", could wait to act until it knows the outcome of the pending litigation regarding IRV.

A group of citizens called the Minnesota Voters Alliance is currently challenging the constitutionality of IRV. They are prepared to take the issue to the US Supreme Court.

IRV has been promoted heavily by Fair Vote in North Carolina, but a recent pilot program had meager participation, ballots were difficult to count, and the pilot program expired. More information about the IRV experiment in North Carolina at the website of the NC Coalition for Verified Voting, NC Voter.