The Ballot Bulletin: March 2018

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In The Ballot Bulletin, Ballotpedia tracks developments in election policy at the federal, state, and local levels. To shed light on these developments, each issue will include an in-depth feature, such as an interview or event timeline. We will also discuss recent prominent events relating to electoral and primary systems, redistricting, and voting provisions.

This month's edition: This month, we will update you on the status of ranked-choice voting implementation in Maine and Memphis, Tennessee (and, for international context, we speak with Darren Hughes of the Electoral Reform Society on the use of RCV in New Zealand). We will also bring you fully up to speed on recent developments surrounding Pennsylvania's congressional district map, which has been the subject of ongoing litigation. Finally, we'll spotlight electoral systems, primary systems, and redistricting legislation in the states.

Veto referendum makes the ballot in Maine, clearing the way for implementation of ranked-choice voting in June primaries for federal and state office

See also: Maine Question 1, Ranked-Choice Voting Delayed Enactment and Automatic Repeal Referendum (June 2018)

• What's the story? On March 5, 2018, Secretary of State Matthew Dunlap (D) announced that a sufficient number of signatures had been submitted to place the Maine Ranked-Choice Voting Delayed Enactment and Automatic Repeal Referendum on the ballot on June 12, 2018, clearing the way for the implementation of ranked-choice voting (RCV) in this year's primaries for federal and state office. The Committee for Ranked Choice Voting launched the veto referendum campaign in response to LD 1646, a bill delaying implementation of RCV pending voter approval of a constitutional amendment that would allow for the use of RCV. The legislation provides for the repeal of the RCV law if no amendment is adopted by December 1, 2021. Now that the referendum has been approved for the ballot, LD 1646 will be suspended pending the outcome of the referendum vote. If the referendum is approved, LD 1646 will be repealed outright.
• What brought us here?
  • November 6, 2016: Voters approved Question 5, which provided for the use of RCV in both primary and general elections for United States senators, United States representatives, the governor, state senators, and state representatives. The initiative was approved by a vote of 52.12 to 47.88 percent. This made Maine the first state to adopt RCV at the state level.
  • February 2, 2017: The state Senate voted 24 to 10 to ask the Maine Supreme Judicial Court to review the initiative and issue an advisory opinion on its constitutionality.
  • May 23, 2017: The Maine Supreme Judicial Court issued a unanimous advisory opinion finding that the law violated the state constitution.
  • May and June 2017: In response to this finding, state lawmakers introduced two separate bills: LD 1624 and LD 1625. The former proposed amending the state constitution to provide for RCV. The latter proposed to repeal the law. Both bills ultimately failed to clear the legislature.
  • October 23, 2017: During a one-day special session, the state legislature approved LD 1646.
• RCV comes to Maine … what does RCV look like overseas? Ranked-choice voting systems extend beyond American borders. RCV is used in varying capacities in Australia, Malta, New Zealand, Northern Ireland, the Republic of Ireland, and Scotland. For further insights on the use of RCV in other countries, we spoke with Darren Hughes, the chief executive of the Electoral Reform Society and a former member of New Zealand's parliament.
  • Ballotpedia: Describe how ranked-choice voting is used in New Zealand (e.g., to what offices does RCV apply, how does the process work from a voter's perspective, etc.).
  • Darren Hughes: Across New Zealand, ranked-choice voting is used to elect members of District Health Boards (DHBs), bodies which are responsible for providing or funding the provision of health services. The particular system used is called single transferable vote (STV), which is characterized by multi-member seats. Voters number a list of candidates: one for their favorite, two for their second-favorite, and so on. Parties will often stand more than one candidate in each area. For a candidate to be elected, they must reach a set number of votes. Once a candidate reaches this quota, any surplus votes are redistributed based on the voter's list of preferences. If no one reaches the quota, the least popular candidate based on first preferences is removed from the running and these votes are redistributed in the same way. Crucially, the system creates results which are proportional — the strength of the parties matches the strength of their support in that area. At the same time, elected members have a direct link with their district, the absence of which is a criticism often leveled at other proportional voting systems. STV is also used in eight of New Zealand's local authority areas.
  • BP: When was RCV first used in New Zealand? What was the transition process like, both for voters and for candidates?
  • Hughes: RCV was first used in DHB elections in 2001 and has been used for some local authority elections since 2004. Of the eight local authority areas, some adopted STV following referendums and some were adopted by the authority following a public consultation. The transition period was not without difficulties — initial counts took too long and there were mistakes. That is why it is important to ensure those conducting elections under a new system are robust in their processes and a solid plan is in place. Any confusion can undermine the new system. For voters, the switch did not pose any great problems, mainly because a new proportional system had been introduced for Government elections less than a decade prior. This meant people in New Zealand were used to change. And for candidates, the system actually made very little difference. At each election, the way politicians have to conduct their campaigns changes every time anyway depending on a whole host of factors including the current economic climate and social norms. A change to the voting system merely added a further consideration. Where it has had a bigger impact is on political culture, with elected representatives needing to work together constructively to get things done.
  • BP: How does the RCV system used in New Zealand differ from that generally used in the U.S.?
  • Hughes: The main difference is that RCV in New Zealand is used to elect multiple politicians for each area or district, rather than just one. In this way, it creates a proportional result where seats match votes. Instant runoff voting (IRV) is, however, used in New Zealand's mayoral elections (as just one mayor is elected for each area). This has not only impacted the results of elections, requiring the winner to have majority support, but also the political culture. This was exemplified in the case of former Wellington Mayor Kerry Prendergast – a Tory representing a center-left city. The nature of IRV required her to change the way she looked at particular issues, taking the interests of all into account, to ensure she had the required support for her three electoral victories.
• What's going on in the rest of the country? The map below identifies states in which electoral systems and primary systems bills are being considered in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about electoral systems legislation, see this article. For full details about primary systems legislation, see this article.

Electoral systems legislation as of March 1, 2018

Primary systems legislation as of March 1, 2018

Redistricting in Pennsylvania: What's going on, and how did we get here?

See also: Redistricting in Pennsylvania

On February 19, 2018, the Supreme Court of Pennsylvania voted 4-3 to adopt a new congressional district plan for the state after having invalidated the existing plan, which was approved by the state legislature in 2011, on the grounds that it constituted an illegal partisan gerrymander. State Republicans quickly petitioned both a federal district court and the Supreme Court of the United States to stay the state supreme court's order pending appeal. These actions are only the most recent in a series of events involving Pennsylvania's congressional district plan. To bring you up to speed, we'll take you back to December 2017 and identify the key events that got us here.

• December 29, 2017: On December 29, 2017, the Commonwealth Court of Pennsylvania issued its "Recommended Findings of Fact and Conclusions of Law" in League of Women Voters of Pennsylvania v. the Commonwealth of Pennsylvania (in which the plaintiffs alleged that the 2011 map gave an unfair advantage to Republicans over Democrats in violation of state and federal law). Judge Kevin Brobson penned the document, which was not itself a binding legal decision. In it, Brobson said that the plaintiffs had failed to identify an enforceable standard by which to assess partisan gerrymandering claims. The case moved to the state supreme court, which heard oral argument on January 17, 2018.
• January 10, 2018: On January 10, 2018, a three-judge panel of the United States District Court for the Eastern District of Pennsylvania issued a 2-1 ruling in a separate case finding that Pennsylvania's congressional district map had not been subject to unconstitutional partisan gerrymandering. Judges Edward G. Smith and Patty Shwartz comprised the majority, with Judge Michael Baylson dissenting.
• January 22, 2018: The Pennsylvania Supreme Court ruled 4-3 to strike down the state's congressional district map, finding that the map "clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania." The court set a deadline of February 9, 2018, for the state legislature to submit a remedial plan to the governor; the court set a deadline of February 15, 2018, for the governor to submit that plan to the court. The court did not issue a full opinion at this time.
• January 25, 2018: State Republicans requested that the Supreme Court of the United States stay the state supreme court's January 22, 2018, ruling pending an appeal. Attorneys for Republicans argued that the state supreme court overstepped its authority in striking down Pennsylvania's congressional district plan. The petition was filed with Associate Justice Samuel Alito, who reviews emergency appeals from Pennsylvania.
• January 26, 2018: The state supreme court issued an order appointing Nate Persily, a Stanford University law professor, "to assist the court in adopting, if necessary, a remedial congressional redistricting plan."
• February 5, 2018: Alito denied Republicans' request for a stay.
• February 7, 2018: The state supreme court released the majority opinion explaining its January 22, 2018, order in League of Women Voters of Pennsylvania v. the Commonwealth of Pennsylvania. The majority opinion was penned by Justice Debra Todd (D) and joined by Justices Kevin M. Dougherty, David N. Wecht, and Christine Donohue. Chief Justice Thomas Saylor (R) and Justices Sallie Mundy (R) and Max Baer (D) dissented.
• February 9, 2018: Senate President Pro Tempore Joe Scarnati (R) and House Speaker Mike Turzai (R) filed a remedial congressional district plan with Governor Tom Wolf (D). The plan was not approved by the legislature as a whole.
• February 13, 2018: Governor Tom Wolf (D) announced that he would not submit the remedial congressional district plan drafted by Senate President Pro Tempore Joe Scarnati (R) and House Speaker Mike Turzai (R) to the state supreme court.
• February 15, 2018: Parties to the suit and state political leaders submitted their proposals to the court. Wolf, Lieutenant Governor Mike Stack (D), House Democrats, Senate Democrats, the petitioners in the suit (i.e., League of Women Voters of Pennsylvania, et al.), and the intervenors (i.e., a group of Republican candidates, party officials, and activists) all submitted proposals.
• February 19, 2018: The state supreme court voted 4-3 to adopt the remedial congressional plan drafted by Nate Persily. The first image below depicts the remedial map drawn by Persily and adopted by the state supreme court. The second image below depicts the map drawn by the state legislature in 2011. District locations and numbers differ between the two maps. The map adopted by the state supreme court split 13 counties; the 2011 map split 28 counties. Had the 2018 map been in place during the 2016 presidential election, Donald Trump (R) would have won 10 districts and Hillary Clinton (D) would have won eight. In 2016, at which time the 2011 map was in place, Trump carried 12 districts to Clinton's six. The court also established an amended filing calendar for congressional candidates.

The remedial map adopted by the Pennsylvania Supreme Court on February 19, 2018.
Click the image to enlarge.

The map adopted by the state legislature in 2011.
Click the image to enlarge.

• February 22, 2018: Pennsylvania State Senate Majority Leader Jake Corman (R), Senate State Government Committee Chairman Mike Folmer (R), and Republican congressmen Lou Barletta, Ryan Costello, Mike Kelly, Tom Marino, Scott Perry, Keith Rothfus, Lloyd Smucker, and Glenn Thompson filed suit in the United States District Court for the Middle District of Pennsylvania, seeking an injunction against implementation of the state supreme court's remedial congressional district plan. The plaintiffs requested that a three-judge panel of the court be convened to consider the case. On February 23, 2018, this request was granted; judges Kent Jordan, Christopher Conner, and Jerome Simandle were appointed to the panel. That same day, the court denied the plaintiffs' request for a temporary injunction and set an expedited schedule for review.
• February 27, 2018: Turzai and Scarnati petitioned the Supreme Court of the United States for a stay of the state supreme court's February 19, 2018, order pending appeal. The petition was filed with Associate Justice Samuel Alito, who reviews emergency appeals from Pennsylvania. Alito asked that responses to the request be filed by 3 p.m. Eastern on March 5, 2018.
• What's going on in the rest of the country? The map below identifies states in which redistricting legislation has been introduced in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about redistricting legislation, see this article.

Redistricting legislation as of March 1, 2018

City council approves veto referendum on ranked-choice voting in Memphis

See also: Electoral systems in Tennessee

• What's the story? On February 6, 2018, the Memphis City Council voted 11-2 to schedule a referendum vote on the use of ranked-choice voting (RCV) in city council elections. The following question will be presented to voters on November 6, 2018: "Shall the Charter of the City of Memphis, Tennessee be amended to provide that in any municipal election held as required by law, the candidate receiving the largest number of votes shall be declared the winner thereby eliminating run-off elections?"
• What brought us here?
  • November 4, 2008: Voters approved Referendum No. 5, which provided for the use of RCV in municipal elections by a vote of 71 to 29 percent. The transition was slated to take place "prior to the next municipal election unless the Election Commission certifies that voting machine limitations make its implementation in time for that election unfeasible."
  • July 20, 2017: The Shelby County Election Commission announced plans to implement RCV for city council elections in Memphis beginning in October 2019. According to Elections Administrator Linda Phillips, the change was not implemented earlier because the commission did not think it had the equipment necessary. Phillips said that the city's existing "equipment can capture the voter’s intent, but cannot do the actual tabulation of votes," thereby requiring manual counting of votes; still, Phillips said that RCV would be "much cheaper and less trouble than holding a separate runoff election.” The commission announced plans to run a mock election to test the system. The commission also announced that additional ordinances must be passed to address specific policy questions, such as whether RCV will apply only to the seven single-member election districts or to all 13 districts.
  • September 26, 2017: Tennessee Elections Coordinator Mark Goins sent a letter to Phillips informing her that RCV is not permissible under state law. Goins said, "The process of manually distributing votes and having multiple rounds of reallocating votes to determine the winner is not authorized by any of the current statutes in Tennessee law."
  • October 17, 2017: The Memphis City Council voted unanimously to "instruct its attorney … to draft an ordinance that, if approved, would force another referendum vote in 2018 on whether to repeal" RCV for city council elections.
• What are the reactions and what comes next?
  • In November 2017, Memphis City Council member Edmund Ford, Jr., an RCV opponent, said that he would continue advocating for a repeal referendum and questioned whether county election administrators were attempting to circumvent state law: "It seems that the Shelby County election commission and others have known for over two years that instant-runoff with two opinions is not permitted without a change in state law. Which leads me to my question of conscious disregard for the law."
  • Former Shelby County commissioner and RCV proponent Steve Mulroy said that September 26 letter did not have the force of law and that implementation should proceed: "It’s not a binding court order that forbids the elections administrator from continuing. Unless or until there is a competent authority that orders here to cease and desist implementation will continue."

See also

• Election policy on Ballotpedia
• Electoral systems legislation at the state and city levels in the United States, 2018
• Primary systems legislation at the state and city levels in the United States, 2018
• Redistricting legislation at the state and city levels in the United States, 2018
• Federal redistricting legislation in the United States, 2017-2019 (115th Congress)