{"id":4093,"date":"2024-11-05T18:37:21","date_gmt":"2024-11-05T23:37:21","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4093"},"modified":"2025-12-31T13:40:21","modified_gmt":"2025-12-31T18:40:21","slug":"the_alaska_model_for_democracy_in_elections","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/11\/05\/the_alaska_model_for_democracy_in_elections\/","title":{"rendered":"The Alaska Model For Democracy In Elections"},"content":{"rendered":"

Senator Cathy Giessel [*]<\/a> & Senator Bill Wielechowski [**]<\/a>\u00a0<\/span><\/strong><\/p>\n<\/p>\n

I. Introduction<\/span><\/p>\n

Democracy in the United States depends on constitutional cornerstones such as the First Amendment, from a political candidate\u2019s freedom of expression in conveying and defending positions, to a private citizen\u2019s freedom of association with any political party (or none whatsoever), to a voter\u2019s ultimate choice at the ballot box. While at times uncomfortable to bear witness to, the contentious, vitriolic, emotionally charged nature of the 2024 U.S. presidential election cycle positively affirms America\u2019s ingrained acceptance of the principles of our First Amendment freedoms. Surely a democracy founded on such sound and necessary precepts as those enabled by the First Amendment should embrace open public discourse in the election realm, even as imperfections may manifest during such exchanges.<\/p>\n

But on July 13, 2024, polarized political angst of citizens was acted on, to the shock of our nation. The shooting of presidential candidates has occurred before in our history. Each time it has happened, our nation was startled into its senses and became motivated to address the frustrations that created the chasm between extreme political positions.<\/p>\n

In the U.S., political policy makers and candidates at every level of public service should not fear speaking their opinions or sharing their ideas. Likewise, voters must be confident that their participation in choosing policy leaders is maximally impactful, respected, and foundational to the process. Frustration with the binary choices, set forth by a minute fraction of partisan participants in choosing candidates for public office through restricted primary elections, often results in a sense of futility and frustration. It is important for policy leaders to consider reasonable reforms that could alleviate citizen dissatisfaction and mistrust, lead to abatement of political violence while preserving the integrity of our democratic systems, and encourage peaceful, if passionate, discourse.<\/p>\n

In recent years Alaska has served as a laboratory of democracy through election reform intended to temper extremes and to hear the voices and choices of voters. In Alaska, the 2022 emergence of open primary elections and utilization of ranked-choice general elections pursuant to a 2020 voter-approved ballot initiative has opened doors for more diverse candidates running for state elected office, effected a toning down of political attacks and hateful rhetoric, and enabled broader voter choice, resulting in higher voter satisfaction.<\/p>\n

Alaska is geographically unique in several ways, making it a challenging venue in which to conduct accessible and fair elections. It is the U.S. state with the largest land mass, more than twice the size of Texas, with more coastline than the rest of the United States put together. Yet, spread across this massive area, our population is the second smallest among the states. Twelve distinct indigenous Alaskan Native groups live throughout the state, many on their original tribal lands in remote towns and villages or on native allotments provided by an act of Congress and administered through Alaska Native corporations. One of Alaska\u2019s school districts is comprised of among the most diverse student populations in the United States, which includes the three top-most diverse high schools in the nation, and amongst its students, 20% of them originally learned to speak in foreign and Alaskan Native-languages.1<\/a><\/sup>Matt Tunseth, Anchorage Public Schools Lead Nation in Diversity<\/em>, Anchorage Daily News<\/span> (2016), https:\/\/www.adn.com\/education\/article\/anchorage-melting-pot-diversity\/2015\/05\/24\/#:~:text=Farrell%20said%20the%20nation’s%2019,like%20this%2C%22%20Farrell%20said [https:\/\/perma.cc\/9D3Y-K82M].<\/span> With this great size and diversity come widely diverse policy viewpoints. Nearly 60% of Alaskans do not affiliate with either the Democratic or Republican Party.2<\/a><\/sup>Alaska<\/em>, Independent Voter Project<\/span> (2023), https:\/\/independentvoterproject.org\/voter-stats\/ak [https:\/\/perma.cc\/PZU7-H4JB].<\/span><\/p>\n

The Alaska Republican Party got an initiative on the August 2002 ballot to establish ranked-choice voting (\u201cRCV\u201d), recognizing its benefits, but that initiative failed.3<\/a><\/sup>Alaska Ballot Measure 1, Ranked-Choice Voting Initiative<\/em>, Ballotpedia (<\/span>August 2002), <\/span>https:\/\/ballotpedia.org\/Alaska_Ballot_Measure_1,_Ranked-Choice_Voting_Initiative_(August_2002) [https:\/\/perma.cc\/PN3T-VREV].<\/span> Since 2004, across the nation, between state and local races, there have been over 500 elections and tens of millions of ballots cast using RCV.4<\/a><\/sup> Research and Data on RCV in Practice<\/em>, Fair Vote (2024) <\/span>https:\/\/fairvote.org\/resources\/data-on-rcv\/ [https:\/\/perma.cc\/3374-ZKLZ]. <\/span><\/p>\n

Through the 2020 citizens\u2019 initiative, Alaska enacted an innovative state election process that allows voters to express their relative preferences more fully among several potential candidates. The procedure applies to legislative races\u2014House and Senate district elections\u2014as well as the statewide elections of the governor, lieutenant governor, and U.S. congressional seats, and even to the general election of the U.S. President.5<\/a><\/sup>There are no primary elections conducted in Alaska for presidential candidates. Instead, the recognized political parties select presidential and vice-presidential candidates as provided by their bylaws, which is usually by a process of caucusing. Election Information<\/em>, State of Alaska Division of Elections (2024)<\/span>, https:\/\/www.elections.alaska.gov\/election-information\/#presidential [https:\/\/perma.cc\/G7DA-XQBN] (explaining presidential party nomination procedures). Delegates of each party are sent to their national party convention to join other states\u2019 delegates to formally vote and nominate their party\u2019s candidate for U.S. President and Vice President. Id.<\/em><\/span><\/p>\n

In this essay, we will reflect on the opposition proffered by state legislators in the ten states that have enacted a ban on the use of ranked-choice general elections. We will respond to misinformation, misunderstanding, and faulty data. We will bring to the reader\u2019s attention the research that has been done, the experiences of other jurisdictions utilizing nonpartisan primary elections and ranked-choice general elections, and the major judicial findings related to constitutional questions. Foremost, we will share the positive experiences of Alaska in which efficient, transparent, and trustworthy elections are a key to representation for a diverse population over a very large geographic area.<\/p>\n

II. Background & History<\/span><\/p>\n

A. <\/span>History of Open Primaries in Alaska<\/em><\/p>\n

For most of its post-statehood history, Alaska conducted some form of open primary elections, where voters were not restricted in whom they could vote for by party affiliation, to select the party nominees for state and federal elections who would advance to the general election. In 1947, while it was still a territory, Alaska adopted an open primary system where voters could vote for candidates without regard for party affiliation.6<\/a><\/sup>Alaska\u2019s Primary Election History<\/em>, State of Alaska Division of Elections (2024) [<\/span>hereinafter Primary History], <\/span>https:\/\/www.elections.alaska.gov\/research\/primary-election-history\/ [https:\/\/perma.cc\/QCL9-E4J6].<\/span> In 1960, the first state legislature modified this system to require voters to choose a single party and only vote for candidates from that party, but in 1967 the legislature removed this requirement at the urging of Governor Walter J. Hickel.7<\/a><\/sup>Id.<\/em><\/span> Open primaries were briefly suspended for the 1992 and 1994 election cycles after the Republican Party of Alaska adopted rules prohibiting members of other parties from voting for Republican nominees,8<\/a><\/sup>Id.<\/em>; see generally<\/em> Memorandum, Enforcement of Republican Party Prior Registration Requirement<\/em>, from Steven Slotnick, Ass\u2019t Att\u2019y Gen. Gov\u2019tal Affairs \u2013 Juneau to Charlot Thickstun, Dir., Div. of Elections, Off. of the Lt. Gov\u2019r, at 1\u20132 (Oct. 27, 1992) [hereinafter Slotnick Analysis], https:\/\/law.alaska.gov\/pdf\/opinions\/opinions_1992\/92-044_663930079.pdf [https:\/\/perma.cc\/TH4W-PJLM] (referencing Republican Party\u2019s adoption of policy preventing non-registered Republicans from voting in Republican primaries).<\/span> but they were restored after the Alaska Supreme Court ruled in O\u2019Callaghan v. State<\/em> that Alaska\u2019s open primary system was constitutional.9<\/a><\/sup>The Alaska Republican Party sued the State in federal court to enforce its closed primary rule, and the State agreed to stipulate that the U.S. Supreme Court decision in Tashjian v. Republican Party<\/em> gave the party the right to close its primary. Primary History, supra<\/em> note 6; Slotnick Analysis, supra<\/em> note 8, at 5; see also<\/em> Tashjian v. Republican Party, 479 U.S. 208, 229 (1986). The State adopted regulations to conduct a closed Republican primary for the 1992 election, but the legislature did not repeal the open primary statutes. Primary History, supra<\/em> note 6; O\u2019Callaghan v. State, 914 P.2d 1250, 1253 (Alaska 1996) (referencing that the 1992 and 1994 primaries were conducted under the State\u2019s regulations). In O\u2019Callaghan<\/em>, the Alaska Supreme Court determined that the open primary statutes were constitutional and ordered the State to conduct open primaries in accordance with the statutes. O\u2019Callaghan<\/em>, 914 P.2d at 1264.<\/span><\/p>\n

Under the open primary system Alaska used from 1960 to 2000, all candidates from recognized parties for each office appeared on a single ballot. Although the Alaska Division of Elections would report election results and percentages as if all candidates were competing against each other, only the highest vote-getter for each party would advance to the general election. Nonpartisan candidates and those from unrecognized parties could petition onto the general election ballot by gathering enough signatures from registered voters.<\/p>\n

Alaska stopped conducting open primaries in 2000 after the state attorney general advised that they were unconstitutional in light of the U.S. Supreme Court\u2019s decision in California Democratic Party v. Jones<\/em>, which held that an open primary system enacted by California was unconstitutional.10<\/a><\/sup>Primary History, supra<\/em> note 6; California Democratic Party v. Jones, 530 U.S. 567, 586 (2000); State of Alaska<\/span>, Dep\u2019t of Law<\/span>, Op. Att\u2019y Gen. No. 2<\/span>, at 8 (Aug. 22, 2000), available at<\/em> https:\/\/law.alaska.gov\/pdf\/opinions\/opinions_2000\/00-021_663000218.pdf [https:\/\/perma.cc\/67D9-JA4Q].<\/span> The state adopted emergency regulations for closed party primaries for the 2000 election, and in 2001, the legislature permanently repealed the open primary statutes in favor of party primary elections.11<\/a><\/sup>Primary History, supra<\/em> note 6.<\/span> In the 2022 case Kohlhaas v. State<\/em>, the Alaska Supreme Court succinctly summarized how these partisan primary elections functioned:<\/p>\n

Before [the 2020 election reform initiative was enacted], Alaska used a system of political party primary elections to determine which candidates for office would advance to the general election. The Alaska Division of Elections oversaw and administered these partisan primary elections. Each political party determined through its bylaws who was eligible to vote in the party\u2019s primary election and who was eligible to run as a candidate. The Division established polling places and furnished election supplies. The winner of each party\u2019s primary election for a particular elective office\u2014that party\u2019s nominee for the office\u2014advanced to the general election . . . Aspiring candidates had another path to the general election ballot: submitting a nominating petition with the requisite number of signatures from registered voters.<\/em>12<\/a><\/sup>

\nKohlhaas v. State, 518 P.3d 1095, 1101 (Alaska 2022).<\/span><\/p>\n

Since each party could set its own rules for who could vote in its primary, Alaska\u2019s primary system was in considerable flux from 2002 to 2020. In 2002, there were six separate primary ballots for the Democratic, Republican, Alaska Independence, Green, Libertarian, and Republican Moderate parties.13<\/a><\/sup>See generally<\/em> Cards Cast Report State of Alaska 2002 Primary Election (Aug. 22, 2002), https:\/\/www.elections.alaska.gov\/Core\/Archive\/02PRIM\/data\/cards.pdf [https:\/\/perma.cc\/V23F-QCN3].<\/span> In 2003, the Green Party sued for the right to hold combined primaries, arguing that election laws disallowing it were unenforceable, and the Alaska Superior Court ruled in favor of the Green Party.14<\/a><\/sup>See<\/em> State v. Green Party of Alaska, 118 P.3d 1054, 1057 (Alaska 2005). The Republican Moderate Party was also a plaintiff in this lawsuit. Id.<\/em> The Alaska Supreme Court agreed with the Green Party on appeal. Id.<\/em><\/span> In 2004, because of differing party rules, there were three separate primary ballots: one ballot with Republican candidates that only registered Republicans, nonpartisans, or undeclared voters could use; one ballot with Libertarian, Green, and Alaska Independence candidates that any voter could request; and one ballot with Democratic candidates and candidates from the Libertarian, Green, and Alaska Independence parties that any voter could request except registered Republicans.15<\/a><\/sup>See <\/em>Primary History, supra<\/em> note 6.<\/span> From the 2006 through the 2020 election cycles, all qualified parties except for the Republican Party agreed to have their candidates appear on a single combined ballot.16<\/a><\/sup>Id.<\/em><\/span> Of the parties\u2019 primary ballots available between 2004 and 2020, only the Republican Party limited its permissible voters to only those registered as members of the party or who were registered nonpartisan or undeclared.17<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The state\u2019s partisan primary system and confusion over application of its differing rules may have affected the outcome of a State House election in 2016 when election workers in one Alaska village allowed voters to vote using both the Republican primary and the combined-primary election ballots.18<\/a><\/sup>See<\/em> Nageak v. Mallot, 426 P.3d 930, 941\u201342 (Alaska 2018).<\/span> In that election, the Division of Elections certified one candidate as the winner of the Democratic nomination, but in an election contest the Alaska Superior Court declared the other candidate the winner.19<\/a><\/sup>Id. <\/em>at 936\u201337.<\/span> On appeal, the Alaska Supreme Court reversed that ruling, finding that the method of statistical analysis used by the superior court was legally invalid, and that the Division of Election\u2019s original certification of results was appropriate.20<\/a><\/sup>Id.<\/em> at 948\u201351.<\/span> Since there were no other candidates running for that seat, the primary election effectively controlled the outcome of the race altogether\u2014unlike what would have occurred had Alaska utilized an open primary system at the time.21<\/a><\/sup>See<\/em> 2016 Primary Election Summary Report Official Results August 16, 2016 (Oct. 17, 2016), https:\/\/www.elections.alaska.gov\/results\/16PRIM\/data\/PostCourt\/results-1.htm [https:\/\/perma.cc\/4NM5-DKFB].<\/span><\/p>\n

B. Ballot Measure 2 and The Alaska Model<\/em><\/p>\n

In 2020, Alaska voters adopted Ballot Measure 2 (\u201cBM 2\u201d), which restructured Alaska\u2019s election system to restore an open primary except that, instead of choosing one nominee from each party, the four candidates who receive the most votes in the primary would advance to the general election that is conducted using RCV.22<\/a><\/sup>Alaska Ballot Measure 2, Top-Four Ranked-Choice Voting and Campaign Finance Laws Initiative (2020)<\/em>, Ballotpedia <\/span>(2024) [<\/span>hereinafter Ballotpedia BM 2],<\/span> https:\/\/ballotpedia.org\/Alaska_Ballot_Measure_2,_Top-Four_Ranked-Choice_Voting_and_Campaign_Finance_Laws_Initiative_(2020) [https:\/\/perma.cc\/ERT9-5HFJ].<\/span> The three primary sponsors of this ballot initiative were a Republican voter, a Democratic voter, and an independent voter, and in their official public statement of support, they described the initiative as ensuring \u201cthat every Alaska voter has the right to have their voice heard and vote counted, regardless of whether they think of themselves as Republican, Democrat, or independent.\u201d23<\/a><\/sup>Bonnie L. Jack, Jason Grenn & Bruce Botelho, Ballot Measure No. 2, An Act Replacing the Political Party Primary with an Open Primary System and Ranked-Choice General Election, and Requiring Additional Campaign Finance Disclosures, Statement of Support<\/em>, https:\/\/www.elections.alaska.gov\/petitions\/19AKBE\/19AKBE%20-%20Statement%20in%20Support.pdf. [https:\/\/perma.cc\/69ET-ZMZF].<\/span><\/p>\n

Under BM 2, a \u201cpick one\u201d open primary allows all registered candidates vying for a certain seat to appear on a single primary election ballot.24<\/a><\/sup>See<\/em> An Act Replacing the Political Party Primary with an Open Primary System and Ranked-Choice General Election, and Requiring Additional Campaign Finance Disclosures<\/em>, https:\/\/www.elections.alaska.gov\/petitions\/19AKBE\/19AKBE_Ballot_Summary_FINAL.pdf [https:\/\/perma.cc\/A2FZ-B25M].<\/span> The top four primary vote-getters then proceed to the ranked-choice general election in which, after iterations of eliminating lowest-voted candidates and retabulating ranked selections, the first candidate receiving over 50% of the vote\u2014or \u201c50%+1,\u201d just one vote over to gain a majority\u2014is the winner.25<\/a><\/sup>See<\/em> id.<\/em><\/span> The type of RCV used in Alaska\u2019s general elections is also known as \u201cinstant runoff voting\u201d (\u201cIRV\u201d).26<\/a><\/sup>See<\/em> Ballotpedia BM 2, supra<\/em> note 22.<\/span> The Alaska Supreme Court in Kohlhaas<\/em> concisely described how general elections under RCV contrast with the previous system:<\/p>\n

Under the previous general election regime, each voter cast a vote by choosing a single candidate for each office. The total number of votes for each candidate was tallied and the candidate receiving the greatest number of votes was victorious.<\/em><\/p>\n

[Ballot Measure] 2 adopts ranked-choice voting\u2014also called \u201cinstant-runoff\u201d voting\u2014which permits voters to rank candidates for each office in order of preference and instructs the Division of Elections to tabulate these preferences in a series of rounds. The Division \u201cshall initially tabulate each validly cast ballot as one vote\u201d for the highest-ranked candidate on that ballot. If after this tabulation one candidate has more than half of the votes, voting is complete and that candidate is declared the winner. If no candidate has more than half of the votes, the candidate with the fewest votes is eliminated. Each ballot initially counted for the eliminated candidate is reassigned to that voter\u2019s second choice marked on the ballot. If the ballot does not rank a second-choice candidate, it is considered \u201cinactive\u201d and is not counted in further rounds of tabulation. The process repeats until only two candidates remain, when the \u201ctabulation is complete\u201d and the candidate \u201cwith the greatest number of votes is elected.\u201d <\/em>27<\/a><\/sup>Kohlhaas v. State, 518 P.3d 1095, 1102 (Alaska 2022).<\/span><\/p>\n

RCV and nonpartisan primary elections are not new. RCV was developed in 1850s Europe and perfected by an MIT professor in the 1870s.28<\/a><\/sup>History of RCV<\/em>, Ranked Choice Voting Research Center (2024)<\/span>, https:\/\/www.rcvresources.org\/history-of-rcv [https:\/\/perma.cc\/2M92-MSV2].<\/span> Today, RCV is used in jurisdictions around the world, including Australia, Malta, Ireland, Northern Ireland, New Zealand, Fiji, Papua New Guinea, and Scotland.29<\/a><\/sup>Ranked Choice Voting: An Explainer<\/em>, Rock the Vote (2024)<\/span>, https:\/\/www.rockthevote.org\/explainers\/ranked-choice-voting-an-explainer\/ [https:\/\/perma.cc\/Y9ZX-RT25]; Ranked Choice Voting Information<\/em>, Fair Vote (2024)<\/span>, https:\/\/fairvote.org\/our-reforms\/ranked-choice-voting-information\/#utah-rcv-pilot-program [https:\/\/perma.cc\/HP27-3N7E].<\/span> RCV first appeared in use in U.S. municipalities in the 1910s.30<\/a><\/sup>Chris Hughes, Ranked Choice Voting in US Goes Back More than a Hundred Years<\/em>, Fair Vote<\/span> (July 2, 2018), https:\/\/fairvote.org\/ranked_choice_voting_in_us_goes_back_more_than_a_hundred_years\/?gad_source=1&gclid=Cj0KCQjw6oi4BhD1ARIsAL6pox2J34LWFbwM9_v7vqbLQu5kH2yrM75MDcc3R1qXQwO6sL5vHs7LWAMaAugCEALw_wcB [https:\/\/perma.cc\/WDE3-XCYF].<\/span> Nebraska passed an initiative creating nonpartisan elections in 1934, and Washington and California adopted open primaries in 2004 and 2010 respectively.31<\/a><\/sup>See<\/em> The History of the Open Primaries Movement<\/em>, Open Primaries<\/span>, https:\/\/openprimaries.org\/history\/ [https:\/\/perma.cc\/9Y97-U65N].<\/span><\/p>\n

While open primaries and RCV are not unique to Alaska, Alaska is the only jurisdiction that uses this system of open primaries and top-four RCV general elections, which we will refer to as \u201cthe Alaska Model\u201d throughout this essay. In their official statement of support, the sponsors of BM 2 described this new election system as \u201ca simple change that gives voters more freedom to choose the candidate that best reflects their positions.\u201d32<\/a><\/sup>Jack et al., supra<\/em> note 23.<\/span><\/p>\n

A court challenge followed the passage of Alaska\u2019s citizens\u2019 initiative.33<\/a><\/sup>See <\/em>Kohlhaas v. State, 518 P.3d 1095, 1100 (Alaska 2022).<\/span> The Alaska Supreme Court sustained the legality of the Alaska Model.34<\/a><\/sup>See<\/em> id.<\/em><\/span> In 2022, the first election conducted under the Alaska Model was a special election to fill a vacancy caused by the death of Alaska\u2019s lone U.S. Representative, with the special primary election held on June 11 and the special election held concurrently with the regularly-scheduled August 16 primary election.35<\/a><\/sup>See<\/em> Aaron Navarro & John Woolley, Ranked-Choice Voting Debuts in Alaska Special Election, where Sarah Palin is Fighting for a Seat in Congress<\/em>, CBS News<\/span> (Aug. 17, 2022), https:\/\/www.cbsnews.com\/news\/sarah-palin-congress-ranked-choice-alaska-lisa-murkowski\/ [https:\/\/perma.cc\/KYE2-QZ94].<\/span><\/p>\n

When adopted, BM 2 passed by a slim margin of votes\u201450.55% to 49.45%.36<\/a><\/sup>State of Alaska, 2020 General Election Summary Report<\/span> (Nov. 30, 2020), https:\/\/www.elections.alaska.gov\/results\/20GENR\/data\/sovc\/ElectionSummaryReportRPT24.pdf [https:\/\/perma.cc\/VUZ9-H37K].<\/span> It is not surprising that following Alaska\u2019s experience with open primaries and RCV in 2022 that naysayers would persist and attempt to dismantle the Alaska Model\u2019s innovative system of reforms. At the 2024 general election, Alaska voters will be confronted with a ballot measure, brought by the public initiative process, to repeal the election procedures provisions of the Alaska Model.37<\/a><\/sup>See generally<\/em> Petition Status<\/em>, State of Alaska Division of Elections<\/span>, https:\/\/www.elections.alaska.gov\/petitions-and-ballot-measures\/petition-status\/?initiative_id=22akhe#is81213 [https:\/\/perma.cc\/9M8A-K662] (displaying information on 2024 initiative to repeal open primary and RCV).<\/span> But as will be discussed later in this essay, an exit poll conducted by Patinkin Research during the November 2022 general election largely found that voters felt the new voting system to be \u201csimple\u201d and that elections were more competitive under it.38<\/a><\/sup>See<\/em> Polling Shows Alaskan Voters Received Clear Instructions on the System, Found Ranking to be \u201cSimple,\u201d and saw more Competitive Races<\/em>, Alaskans for Better Elections<\/span> (Nov. 15, 2022), https:\/\/www.alaskansforbetterelections.com\/polling-shows-alaskan-voters-received-clear-instructions-on-the-system-found-ranking-to-be-simple-and-saw-more-competitive-races\/ [https:\/\/perma.cc\/D9SV-54G4] (providing Patinkin Research Strategies exit poll results on Alaska\u2019s second use of RCV in a regular general election).<\/span><\/p>\n

C. \u201cDark Money\u201d in Alaska\u2019s Political System<\/em><\/p>\n

Improving on transparency and voter confidence in our elections system, BM 2 also included a provision aimed at eliminating so-called \u201cdark money,\u201d where political donors use intermediaries to hide the true source of money spent on electoral campaigns.39<\/a><\/sup>See<\/em> Caleb P. Burns & Hannah J. Miller, Alaska Ballot Measure Targets the \u2018True Sources\u2019 of Dark Money<\/em>, wiley <\/span>(Mar. 2021), https:\/\/www.wiley.law\/newsletter-Alaska-Ballot-Measure-Targets-the-True-Sources-of-Dark-Money [https:\/\/perma.cc\/CH7P-2LML].<\/span> In Alaska, candidates for office are required to file campaign disclosures revealing who their campaign contributors are and the amounts given.40<\/a><\/sup>See<\/em> Alaska Stat. \u00a7 15.13.040(a) (2024).<\/span> However, before BM 2, entities contributing to independent expenditure groups were not required to reveal the sources of their funds.41<\/a><\/sup>See<\/em> Burns & Miller, supra<\/em> note 39 (\u201cBallot Measure 2 seeks to combat the role of \u2018dark money\u2019 with rigorous disclosure, imposing 24-hour reporting obligations on both entities engaged in independent expenditures and their contributors\u201d).<\/span> Alaska Statute \u00a7 <\/strong>15.13.400(5), enacted by BM 2, defines \u201cdark money\u201d as \u201ca contribution whose source or sources, whether from wages, investment income, inheritance, or revenue generated from selling goods or services, is not disclosed to the public,\u201d and BM 2 amended AS \u00a7 <\/strong>15.13.074\u2014which banned making contributions anonymously, under a fictitious name, or the name of another\u2014to also prohibit entities from accepting $2,000 or more worth of dark money.42<\/a><\/sup>See<\/em> State of Alaska, Alaska\u2019s Better Elections Initiative<\/em><\/span>, https:\/\/www.elections.alaska.gov\/petitions\/19AKBE\/19AKBE-TheBill.pdf [https:\/\/perma.cc\/5VXM-6Y4Z].<\/span> This new provision further required that, once a person makes contributions of more than $2,000 in a year to an entity making independent expenditures in candidate elections, that entity must report the contribution and any subsequent contributions received from that contributor within twenty-four hours of receipt and must report and certify the true sources of contributions and any intermediaries.43<\/a><\/sup>See id. <\/em>at 4.<\/span><\/p>\n

Ballot Measure 2 contained uncodified findings explaining the rationale for these provisions:<\/p>\n

The people of Alaska have the right to know in a timely manner the source, quantity, timing, and nature of resources used to influence candidate elections in Alaska. This right requires the prompt, accessible, comprehensible, and public disclosure of the true and original sources of funds used to influence these elections, and is essential to the rights of free speech, assembly, and petition guaranteed by the First Amendment to the United States Constitution and shall be construed broadly.<\/em>44<\/a><\/sup>

\nSee<\/em> id.<\/em> at 2.<\/span><\/p>\n

III. Discussion<\/span><\/p>\n

A. <\/span>Despite the Successes of the Alaska Model, Ten States have Banned RCV Relying on Flawed or Misleading Policy Rationales<\/em><\/p>\n

In 2022, state legislatures began taking preemptive steps through enactments of law to prevent implementation of RCV in their state and local elections.45<\/a><\/sup>In November 2024, though, the voters of four states will consider RCV-supportive ballot measures. Oregon, Nevada, and Colorado voters will be asked to approve of RCV election systems, while Idaho voters could repeal its legislatively established RCV ban. See, e.g.<\/em>, Becky Bohrer, Ranked-Choice Voting that has Rocked Alaska Politics Faces November Tests Across the Nation<\/em>, The Associated Press<\/span> (May 29, 2024), https:\/\/alaskapublic.org\/2024\/05\/29\/ranked-choice-voting-that-has-rocked-alaska-politics-faces-november-tests-across-the-nation\/ [https:\/\/perma.cc\/7P3D-VUCK]. Still yet, the Missouri legislature has placed a question before the electorate whether to ban RCV, while, as explained earlier in this essay, adversaries of Alaska\u2019s RCV election system are also pursuing its repeal. See<\/em> id.<\/em><\/span> By May of 2024, ten states had banned RCV systems of elections from operation at all levels of government within state jurisdiction: Tennessee, Florida, Idaho, South Dakota, Kentucky, Montana, Oklahoma, Alabama, Mississippi, and Louisiana.46<\/a><\/sup>See Where is Ranked Choice Voting Used?<\/em>, Fair Vote<\/span>, https:\/\/fairvote.org\/our-reforms\/ranked-choice-voting-information\/?gad_source=1&gclid=CjwKCAjwgfm3BhBeEiwAFfxrGyLa6ElV69GjUgAbyIlI42mSA7whjcKDY21KtRWAK2P3_gH1gBoEIxoCV6cQAvD_BwE#where-is-ranked-choice-voting-used [https:\/\/perma.cc\/PDR3-9XJF]. Among the states legislatively banning RCV, each bill was signed into law by the state\u2019s respective governor except Kentucky\u2019s, where Democratic Governor Andy Beshear vetoed HB 44 containing the ban for stated unrelated reasons. See, e.g.<\/em>, McKenna Horsley, Beshear Vetoes Bill that Outlaws Ranked-Choice Voting<\/em>, Kentucky Lantern<\/span> (Apr. 11, 2024), https:\/\/www.kentuckynewera.com\/ep\/news\/article_9c497535-93e2-5946-b204-40ddc2f408e1.html [https:\/\/perma.cc\/PX5V-N7VG]. Beshear\u2019s veto was later overridden by the Republican-controlled Kentucky legislature. See also <\/em>Kentucky General Assembly<\/span>, House Bill 44 Actions<\/em>, https:\/\/apps.legislature.ky.gov\/record\/24rs\/hb44.html [https:\/\/perma.cc\/WF22-7YRS].<\/span> While both Democrats and Republicans allege defects in this model of election reform,47<\/a><\/sup>See <\/em>Scott Shackford, Florida, Tennessee Ban Ranked-Choice Voting Despite Citizen Support<\/em>, Reason<\/span> (Apr. 28, 2022), https:\/\/reason.com\/2022\/04\/28\/florida-tennessee-ban-ranked-choice-voting-despite-citizen-support\/ [https:\/\/perma.cc\/4NMP-DABR] (\u201cThere\u2019s a lesson here on how some of the resistance to certain election reforms is actually about entrenched political interests protecting themselves from electoral consequences\u201d); see also<\/em> Matt Vasilogambros, As Ranked Choice Voting Gains Momentum, Parties in Power Push Back<\/em>, Alabama Reflector<\/span> (Aug. 21, 2023), https:\/\/alabamareflector.com\/2023\/08\/21\/as-ranked-choice-voting-gains-momentum-parties-in-power-push-back\/ [https:\/\/perma.cc\/5E82-SUUQ] (\u201cSometimes, when we see party opposition, that can be a reflection of elected officials who know how to campaign, know how to win under the old system, not quite ready to want to throw that system out yet\u201d) (statement of Deb Otis, Dir. Res. and Pol\u2019y, FairVote).<\/span> the state legislatures so far banning RCV are all controlled by Republican majorities.48<\/a><\/sup>See<\/em> State Partisan Composition<\/em>, NCSL (last updated Aug. 6, 2024),<\/span> https:\/\/www.ncsl.org\/about-state-legislatures\/state-partisan-composition [https:\/\/perma.cc\/M54Q-JYC5] (demonstrating the ten \u201cred\u201d RCV-banning states via map depiction). <\/span><\/p>\n

Sarah Palin\u2019s failed bid for Alaska\u2019s sole U.S. congressional seat under Alaska\u2019s first election utilizing RCV in 2022 brought widespread attention to the Alaska Model and spurred conservative politicos and national opposition organizations to act, decrying RCV as a flawed and \u201crigged\u201d system invented to help Democrats win and citing the Palin loss as proof.49<\/a><\/sup>See<\/em> Yareth Rosen, North to the future? Alaska\u2019s ranked choice voting system is praised and criticized nationally<\/em>, Alaska Beacon<\/span> (Sept. 19, 2023), https:\/\/alaskapublic.org\/2023\/09\/19\/north-to-the-future-alaskas-ranked-choice-voting-system-is-praised-and-criticized-nationally\/ [https:\/\/perma.cc\/JV5G-SEZW] (indicating that Arkansas Republican Senator Tom Cotton attacked RCV as \u201ca scam to rig elections\u201d and that Texas Republican Senator Ted Cruz said the Alaska Plan was \u201cdesigned to rig the election\u201d and to \u201cmake it incredibly difficult to elect a conservative,\u201d adding, \u201cI gotta say it sucks for Sarah Palin\u201d); see also<\/em> Emily Brooks, Republicans Rage Against Ranked Choice Voting After Alaska Election<\/em>, The Hill<\/span> (Sept. 1, 2022), https:\/\/thehill.com\/blogs\/blog-briefing-room\/news\/3624553-republicans-rage-against-ranked-choice-voting-after-alaska-election\/ [https:\/\/perma.cc\/TT8V-6L3A]; Republican Nat\u2019l Comm., Res., Officially Oppose Ranked-Choice Voting<\/em>, https:\/\/prod-static.gop.com\/media\/2-RESOLUTION-TO-OFFICIALLY-OPPOSE-RANKED-CHOICE-VOTING-ACROSS-THE-COUNTRY.pdf?_gl=1*wbwnwe*_gcl_au*MjA5NzkzODI4MC4xNzIyNjE3NjU0&_ga=2.163867578.448389808.1723150752-444379071.1722617654 [https:\/\/perma.cc\/M939-ATYV]; The Heritage Foundation<\/span>, Ranked Choice Voting Should Be Ranked Dead Last as An Election Reform<\/em>, Factsheet No. 242 (Jan. 27, 2023), https:\/\/www.heritage.org\/sites\/default\/files\/2023-01\/FS242.pdf [https:\/\/perma.cc\/XN44-T3S4].<\/span> The Palin election loss further fueled Republican-led legislatures to enact RCV prohibitions.50<\/a><\/sup>Two states banned RCV during 2022 legislative sessions, while eight more states adopted bans following the Palin election loss. <\/span> During her campaign, the former Alaska governor and 2008 vice presidential candidate publicly and harshly criticized RCV, calling it \u201ccockamamie\u201d and, days before her election fate was sealed, declared it \u201cthe weirdest, most convoluted and most complicated voter suppression tool that Alaskans could have come up with.\u201d51<\/a><\/sup>Nathaniel Herz, Rank Choice Voting, in First Test in Alaska, is Already Under Attack<\/em>, Anchorage Daily News<\/span> (Aug. 17, 2022), https:\/\/www.adn.com\/politics\/2022\/08\/17\/ranked-choice-voting-in-first-test-in-alaska-is-already-under-attack [https:\/\/perma.cc\/HBY4-PD6A]; Iris Samuels, Palin First to Sign New Ballot Initiative to Repeal Ranked Choice Voting<\/em>, Anchorage Daily News<\/span> (Nov. 18, 2022), https:\/\/www.adn.com\/politics\/2022\/11\/18\/palin-first-to-sign-new-ballot-initiative-to-repeal-ranked-choice-voting\/ [https:\/\/perma.cc\/M66M-R57R]. <\/span><\/p>\n

Palin is a polarizing figure\u2014both nationally and within our state. The RCV tabulating results document that Palin clearly lost the election in a contest featuring her and Democrat Mary Peltola, the eventual winner of the congressional seat.52<\/a><\/sup>See infra<\/em> text accompanying notes 63\u201366. <\/span> But even as the 2022 congressional race does not serve as evidence that the Alaska Model, or RCV systems generally, are inherently defective or produce partisan, liberally-biased results, Palin\u2019s congressional election loss and her conservative notoriety have played an influential factor in the national movement by Republicans to ban RCV.<\/p>\n

Our counterpoints and insights from Alaska\u2019s actual experience with nonpartisan primaries and RCV general elections will highlight the positive aspects of the Alaska Model system and assuage concerns that RCV is an unmanageable process or is untenable as a legitimate election reform. In this section, we focus on the misunderstood constitutional and erroneous policy rationales of those jurisdictions that have banned RCV and we provide our analyses and critiques of the underlying reasoning for the state bans. The rationales for banning RCV lack credibility for a dearth of evidence supporting the contentions, rely on deficient logic or unsound assessment of data, or have otherwise been disproven by the courts.<\/p>\n

1. Reasons for Distrusting RCV and Its Results Do Not Withstand Scrutiny<\/em><\/p>\n

Legislators supporting RCV prohibitions asserted several claims which they contended sow distrust in RCV election systems and corresponding results. These claims involve higher rates of discarded ballots; assertions that minority, low-income, and less educated voters are disenfranchised by RCV; and that resulting returns and race outcomes are reported much later than traditional processes, leading voters to question whether they are accurate. We disagree with these contentions and discuss why the claims are in error.<\/p>\n

All Ballots are Counted Despite Allegations to the Contrary<\/em><\/strong><\/p>\n

Two assertions generally emerged from the positions of RCV-banning states, asserting that RCV leads to inordinate numbers of supposed \u201cdiscarded,\u201d \u201cthrown out,\u201d \u201ctossed,\u201d or \u201ctrashed\u201d ballots. First, the ban proponents suggest that ballots are discarded by election officials due to voter failure to understand and abide by the complicated instructions, leading to improperly filled out ballots.<\/p>\n

For instance, in Montana, the sponsor of H.B. 598 proclaimed in its first bill hearing that the \u201cworst\u201d aspect of RCV \u201cis disenfranchisement of voters,\u201d stating that \u201c[b]ecause of its complicated nature [ranked-choice voting] is known to have higher . . . error rates,\u201d and that, among such examples, \u201cAlaska[\u2019s] special election saw 11,000 ballots discarded, and 15[,000] were thrown out in their general election.\u201d53<\/a><\/sup>Hearing on H.B. 598, Before the H. Sta. Admin. Comm., 2023 Leg., 68th Sess. (Mont. 2023) (testimony of Rep. Lyn Hellegaard).<\/span> In the hearing, an official with the office of the Montana Secretary of State also claimed that: \u201cThe evidence shows that ranked choice voting creates voter confusion and [an] information deficit which conclusively leads to voter disenfranchisement.\u201d54<\/a><\/sup>Id.<\/em> (testimony of Austin James, Office of Sec\u2019y of State).<\/span> Louisiana\u2019s RCV ban sponsor announced to his colleagues in SB 101\u2019s first bill hearing that \u201c[t]he biggest concern with ranked-choice voting is that the ballots are pretty much trash[ed], consistently, in every ranked-choice voting election,\u201d and, similarly to Montana, claimed that \u201cin Alaska, [in the] 2022 at-large congressional election, [election officials] trashed nearly 15,000 ballots.\u201d55<\/a><\/sup>Hearing on S.B. 101, Before the S. & Gov\u2019t Affairs Comm., 2024 Leg., Reg. Sess. (La. 2024) (testimony of Sen. Blake Miguez).<\/span> The Louisiana Secretary of State further testified in support of SB 101 that, because RCV is a \u201ccomplicated, confusing, cumbersome, and convoluted . . . system,\u201d that \u201c[y]ou end up disenfranchising people, because if [election officials] have to throw their ballot away, that person\u2019s vote doesn\u2019t count, and you end up electing your officials by excluding some of your voters.\u201d56<\/a><\/sup>Id.<\/em> (testimony of Nancy Landry, Sec\u2019y of State).<\/span><\/p>\n

Second, RCV opponents contend that a voter who does not choose to rank the full number of allowable preferences\u2014whether by lack of comprehending instructions, or<\/em> by voluntary non-exercise of more than one preference\u2014but whose first-ranked preference was not the eventual election winner, actually means that the voter\u2019s vote for a losing candidate somehow \u201cdid not count\u201d\u2014while the voter\u2019s absent, nonexistent votes for any nonwinning candidates were votes that were \u201cdiscarded.\u201d57<\/a><\/sup>Se<\/em>e, e.g.<\/em>, Voting on S.B. 2367, 2024 Leg., Reg. Sess. (Miss. 2024) (statement of Sen. Jeremy England).<\/span> In Mississippi, for example, the sponsor of the stand-alone RCV ban that was eventually incorporated into the multi-faceted election reform bill SB 2144 contended in floor debate that states currently using RCV \u201care actually taking the voice away from the people by throwing their ballots out; they don\u2019t keep them.\u201d58<\/a><\/sup>Id.<\/em> <\/span> He elaborated, \u201c[i]f you vote for one candidate, and they . . . don\u2019t make the runoff, your ballot is tossed, and then the next winning candidate is chosen . . . through a system.\u201d59<\/a><\/sup>Id.<\/em> <\/span> Maintaining that RCV states are \u201ctossing ballots,\u201d he announced, \u201cI can tell you what I don\u2019t like is people throwing out ballots. And that\u2019s what . . . ranked-choice voting would do.\u201d60<\/a><\/sup>Id.<\/em>; cf.<\/em> Hearing on S.B. 55, 2023 Leg., Reg. Sess. 36:50\u201337:12 (S.D. Feb. 2, 2023), https:\/\/sdpb.sd.gov\/sdpbpodcast\/2023\/sen16.mp3#t=2354 [https:\/\/perma.cc\/7CVC-33V6] (statement of Sen. John Wiik) (\u201cIf you choose to only vote your first choice in the first column, and leave the rest blank, you\u2019re denied the right to vote in the runoff . . . because you had no idea who would be left on the ballot when you made your voting choice\u201d).<\/span><\/p>\n

All properly completed and timely submitted ballots from qualified Alaska voters in both open-primary and RCV general elections in Alaska in 2022 were accepted and counted. As in all models of election systems, a voter has the choice to choose a candidate in each elected position or to leave that elected seat choice blank.<\/p>\n

Extensive education efforts were implemented during 2021 and 2022 to ensure that Alaskans had the opportunity to have \u201chands on\u201d experience with the open primary ballots as well as the RCV general election ballots.61<\/a><\/sup>See <\/em>Iris Samuels, Alaska\u2019s<\/em> First Ranked Choice Election is on Tuesday. Here\u2019s What You Need to Know<\/em>, Anchorage Daily News (Aug. 14, 2022), https:\/\/www.adn.com\/politics\/2022\/08\/13\/alaskas-first-ranked-choice-election-is-on-tuesday-heres-what-you-need-to-know\/ [https:\/\/perma.cc\/7AVE-BX5Y].<\/span> The Division of Elections website posted copies of the ballots, both open primary and RCV general ballots, with explanatory videos.62<\/a><\/sup>See, e.g.<\/em>, Sample Ballot, State of Alaska Official Ballot June 11, 2022 Special Primary Election, https:\/\/www.elections.alaska.gov\/election\/2022special_primary_sb\/SB-English%20HD99.pdf [https:\/\/perma.cc\/69SB-PLLZ?type=image] (depicting sample ballot for 2022 statewide congressional primary election, the first \u201cpick one\u201d open primary under BM 2 changes to law); Sample Ballot, State of Alaska Official Ballot August 16, 2022 Special General Election, https:\/\/www.elections.alaska.gov\/election\/2022\/prim\/HD1.pdf [https:\/\/perma.cc\/45E4-92LN?type=image] (depicting sample ballot for 2022 House District 1 congressional regular \u201cpick one\u201d primary, and on the backside, the congressional special general election, which was the first RCV procedure ballot under BM 2 changes to law); Election Essentials<\/em>, Ranked Choice Voting<\/em>, How to Mark Your Ballot<\/em>, State of Alaska Division of Elections,<\/em><\/span> https:\/\/www.elections.alaska.gov\/essentials\/#RankedChoice [https:\/\/perma.cc\/2E7K-JUEN] (providing instructive RCV video). <\/span><\/p>\n

In the 2022 RCV regular general election for Alaska\u2019s single U.S. Representative seat, there were two Republican candidates appearing on the ballot, Sarah Palin and Nick Begich; one Democrat, Mary Peltola; and one Libertarian, Chris Bye. The Republican Party of Alaska had been circulating the slogan \u201cRank the Red,\u201d urging the state\u2019s approximately 144,000 registered Republican voters in 2022 to only vote for Republican candidates.63<\/a><\/sup>See generally<\/em> Randy Ruedrich, Alaska Republican Party, https:\/\/alaskagop.net\/wp-content\/uploads\/2022\/03\/Randy-Ruedrich-Rank-Choice-Voting.pdf [https:\/\/perma.cc\/CZ93-UN88] (explaining primary and RCV processes for 2022 election and encouraging ranking of conservative and moderate candidates while not choosing any Democrats); Liz Ruskin, Palin and Begich Both Say \u2018Rank the Red\u2019 while Diverging in Style<\/em>, Alaska Public Media<\/span> (Oct. 10, 2022), https:\/\/alaskapublic.org\/2022\/10\/10\/palin-and-begich-both-say-rank-the-red-while-diverging-in-style\/ [https:\/\/perma.cc\/AUS5-TAPS]; State of Alaska Division of Elections, Voters Count by Party and Precinct<\/em>, State of Alaska Division of Elections, <\/span>at 19 (Nov. 3, 2022), https:\/\/www.elections.alaska.gov\/statistics\/2022\/NOV\/VOTERS%20BY%20PARTY%20AND%20PRECINCT.pdf [https:\/\/perma.cc\/C7RT-W8B6?type=image] (demonstrating summary of registered \u201cR\u201d voters of 144,542 residents in 2022).<\/span><\/p>\n

Mary Peltola prevailed as the general election winner.64<\/a><\/sup>Palin lost to Peltola twice, once to fill out the remainder of Don Young\u2019s term, and shortly thereafter, to serve a full congressional term. See<\/em> Associated Press, Democrat Mary Peltola, the 1st Alaska Native in Congress, Wins a Full Term<\/em>, NPR (Nov. 24, 2022), https:\/\/www.npr.org\/2022\/11\/24\/1139155670\/mary-peltola-wins-alaska-election-congress [https:\/\/perma.cc\/DQ2U-558L].<\/span> Republican partisan groups assert that Sarah Palin failed to win in the 2022 Alaska Representative election because of the RCV general election procedure. Analysis of the vote data, however, finds this to be false. Simply put: \u201cenough of Begich\u2019s voters either did not rank Republican Sarah Palin second or voted for Peltola second. This resulted in Peltola winning the race.\u201d65<\/a><\/sup>Jeff Landfield, NRCC Announces Key Endorsement of Nancy Dahlstrom in Bid to Unseat Mary Peltola<\/em>, Alaska Landmine<\/span> (July 29, 2024), https:\/\/alaskalandmine.com\/landmines\/nrcc-announces-key-endorsement-of-nancy-dahlstrom-in-bid-to-unseat-mary-peltola\/ [https:\/\/perma.cc\/84FX-KGKZ]. <\/span> If every Begich voter had uniformly \u201cranked the red,\u201d Palin would have won by 1.56%. However, Begich voters did not all choose Palin as second choice. Even if all Begich voters who did not rank anyone second would have preferred Palin, Peltola would have won. Even if all exhausted Bye voters (only chose Bye and no second choice) would have gone to Palin, Peltola still would win. More than 50% of people who voted that November decided to fill in the bubble next to Peltola in greater numbers than the bubble next to Palin, even if some chose Begich first or Bye first.66<\/a><\/sup>See<\/em> RCV Detailed Report, General Election State of Alaska November 08, 2022<\/em>, U.S. Representative<\/em>, State of Alaska Division of Elections,<\/span> at 2\u20133 (Nov. 30, 2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/US%20REP.pdf [https:\/\/perma.cc\/87K3-HD5Q] (providing raw data demonstrating Palin\u2019s tabulating rounds of votes were insufficient to overcome Peltola\u2019s win). <\/span><\/p>\n

The Division of Election\u2019s 2022 congressional election data documents the complete ballot counting that took place. The same procedures were followed in all the RCV elections held in 2022 and were transparently reported online for all Alaskans to see.67<\/a><\/sup>See<\/em> 2022 General Election \u2013 November 8, 2022<\/em>, State of Alaska Division of Elections<\/span> (last updated Dec. 20, 2022), https:\/\/www.elections.alaska.gov\/election-results\/e\/?id=22genr [https:\/\/perma.cc\/L8TW-B3GL] (providing links to results from 2022 general election).<\/span> Raw data remains available on the Division of Elections website for the sixty-two elected positions in 2022, including the cast vote record, which allows anyone to verify the results for themselves.68<\/a><\/sup>Id.<\/em> (providing cast vote record raw data in a ZIP file).<\/span> In addition, recounts were conducted in two elections: one for State Senate and one for State House.69<\/a><\/sup>See<\/em> 2022 General Election, Statement of Votes Cast, November 8, 2022, Official Recount Results<\/em>, State of Alaska Division of Elections<\/span> (Dec. 7, 2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/SENATE%20E_recount.pdf [https:\/\/perma.cc\/8R5A-D72T] (Senate District E); 2022 General Election, Statement of Votes Cast, November 8, 2022, Official Recount Results<\/em>, State of Alaska Division of Elections<\/span> (Dec. 8, 2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/HD15_recount.pdf [https:\/\/perma.cc\/8L6T-W6M7] (House District 15). <\/span><\/p>\n

Voters had the choice to leave an election race blank, vote for only one, or rank fewer than the permissible full number of candidates in each race. For example, in the U.S. Senate race, there were four candidates, none of whom achieved over 50% on the first tabulation.70<\/a><\/sup>See<\/em> RCV Detailed Report, General Election State of Alaska November 08, 2022, U.S. Senator<\/em>, State of Alaska Division of Elections<\/span>, at 2 (Nov. 30, 2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/US%20SEN.pdf [https:\/\/perma.cc\/F3GS-R425].<\/span> By the final tabulation, the Division of Elections recorded 9,107 \u201cexhausted ballots\u201d in that race;71<\/a><\/sup>Id.<\/em> at 3.<\/span> these are usually ballots in which the voter chose to not rank all the candidates, so their votes were counted until \u201cexhausted.\u201d In that race, 3,271 blank ballots were submitted by voters who chose not to vote in the election for U.S. Senator.72<\/a><\/sup>Id.<\/em><\/span> There were 555 ballots that were \u201covervoted\u201d;73<\/a><\/sup>Id.<\/em><\/span> the voters who submitted these ballots gave more than one candidate the same ranking, which makes it impossible to determine voter intent.<\/p>\n

Data from the U.S. House election, in which Palin was a candidate, records more \u201cexhausted\u201d ballots, indicating that voters chose not to rank all the candidates. The Division of Elections recorded 13,894 \u201cexhausted\u201d ballots, 1,775 blank ballots, and 436 \u201covervotes\u201d for this election.74<\/a><\/sup>RCV Detailed Report,<\/em> U.S. Representative<\/em>, supra<\/em> note 66, at 2\u20133.<\/span><\/p>\n

In all cases, whether \u201cexhausted\u201d, blank, or \u201covervotes\u201d, all of the available votes were counted. If voters chose to select only one candidate and that candidate had the lowest vote count, they were making clear that no other candidate was acceptable to them. This is an affirmative non-choice, an exercise of one\u2019s First Amendment freedom of speech. In conventional, plurality election systems, voters often leave a choice blank, perhaps because they don\u2019t like any of the choices or they don\u2019t know any of the candidates.<\/p>\n

An analysis by the think tank R Street found the number of blank ballots in Maine elections were roughly the same before and after RCV.75<\/a><\/sup>Matthew Germer, An Analysis of Ranked Choice Voting in Maine<\/em>, R Street<\/span>, at 2\u20133 (Sept. 2021), https:\/\/www.rstreet.org\/wp-content\/uploads\/2021\/09\/Final-Short-106.pdf [PERMA].<\/span> In New York City, more people participated in the RCV races than the non-RCV races on the ballot. In New York County, voters elected the district attorney (non-RCV) at the same time as the mayor (RCV); 3% of voters left the RCV race blank, 7% left the non-RCV race blank.76<\/a><\/sup>Jonah Harwood, Competitive Races with More Choices See Improved Voter Participation<\/em>, Fair Vote<\/span> (Feb. 5, 2021), https:\/\/fairvote.org\/competitive_races_with_more_choices_see_improved_voter_participation\/ [https:\/\/perma.cc\/U948-A5D3].<\/span> Additionally, in RCV races with more candidates competing, there were lower rates of undervoting77<\/a><\/sup>Id.<\/em> <\/span> and higher rates of voters using multiple rankings.78<\/a><\/sup>Deb Otis, RCV in New York City: Cast Vote Record Analysis<\/em>, Fair Vote<\/span> (July 22, 2021), https:\/\/fairvote.org\/rcv_in_new_york_city\/#ballot-use [https:\/\/perma.cc\/X54J-GYP4].<\/span> This data indicates that RCV races are not dissuading voters but instead are driving more participation.<\/p>\n

While Opponents Claim RCV Causes Voter Disenfranchisement or Suppression, No Voter Suppression Occurred in 2022 and RCV Results in More Diversity of Candidates and Elected Officials<\/em><\/strong><\/p>\n

The legislative records of several RCV-banning states document that particular voting groups are susceptible to disenfranchisement or suppression under RCV systems. These groups include minorities that historically experience discrimination and elderly, young, or less-educated voters.<\/p>\n

In the first hearing on Montana\u2019s H.B. 598, the official acting on behalf of the Secretary of State stated, \u201c[r]anked-choice voting has shown to decrease voter turnout by disenfranchised communities, particularly minorities, including Native American voters, younger voters, and those with . . . lower levels of education.\u201d79<\/a><\/sup>Hearing on H.B. 598 Before the H. Sta. Admin. Comm., Reg. Sess. 9:48:57\u20139:49:07 (Mont. Feb. 27, 2023), https:\/\/sg001-harmony.sliq.net\/00309\/Harmony\/en\/PowerBrowser\/PowerBrowserV2\/20170221\/-1\/48263?agendaId=255049#agenda (testimony of Austin James, Office of Sec\u2019y of State).<\/span> In another instance, S.B. 101\u2019s sponsor warned Louisiana Senate Committee members to \u201cremember about the elderly . . . when they try to fill out [ranked-choice voting] ballots, and the ballots are very long and they\u2019re very complex, if they fill something out wrong, or incorrectly, that ballot goes in the trash.\u201d80<\/a><\/sup>Hearing on S.B. 101 Before the S. & Gov\u2019t Affairs Comm., Reg. Sess. 37:06\u201337:17 (part 2) (La. Mar. 13, 2024), https:\/\/senate.la.gov\/s_video\/VideoArchivePlayer?v=senate\/2024\/03\/031324SGA2 (testimony of Sen. Blake Miguez).<\/span> During Tennessee\u2019s S.B. 1820 debate on the Senate floor, one senator stated that in the last New York City RCV mayoral race, 15 percent of the ballots \u201cwere turned in blank.\u201d81<\/a><\/sup>Hearing on S.B. 1820, 112th Gen. Assem., Reg. Sess. 33:38\u201334:05 (Tenn. Feb. 14, 2022), https:\/\/tnga.granicus.com\/player\/clip\/26088?view_id=610&redirect=true (statement of Sen. Richard Briggs).<\/span> He offered that \u201cmany people\u201d believed that this happened \u201cbecause people didn\u2019t understand how the ballot was supposed to be filled out,\u201d and further added that \u201c[i]n the minority precincts it was even greater than 15 percent, and I know that many of the minority leaders in NYC called this sophisticated voter suppression.\u201d82<\/a><\/sup>Id.<\/em><\/span> And a supporter of Mississippi\u2019s RCV prohibition argued in floor discussion that RCV \u201cwould cause some serious confusion\u201d and \u201cconfusion leads to voter suppression,\u201d while claiming that, to the contrary, \u201cwe\u2019re trying to make sure we don\u2019t create some type of voter confusion which leads to voter suppression.\u201d83<\/a><\/sup>Hearing on S.B. 2367, 2024 Leg., Reg. Sess. 25:56\u201326:04 (Miss. Mar. 7, 2024), https:\/\/law-db.mc.edu\/legislature\/bill_details.php?id=13287&session=2024 (statement of Sen. Jeff Tate) (arguing in support of the RCV ban later established in S.B. 2144).<\/span><\/p>\n

Voter suppression and disenfranchisement can be a factor in conventional, political-party-controlled primary elections. In these elections, participation is restricted to only party members or those willing to restrict themselves to one party\u2019s ballot. There are forty-five states conducting partisan primaries, fifteen of which exclude independent voters, thus disenfranchising over fourteen million Americans in these primary elections; nearly thirty percent of African Americans identify as independents.84<\/a><\/sup>Nick Troiano<\/span>, The Primary Solution: Rescuing Our Democracy from the Fringes 74<\/span>\u201375 (2024). <\/span><\/p>\n

In 2022, only eight percent of all voters cast ballots in the partisan primaries that determined eighty-three percent of the U.S. House election outcomes.85<\/a><\/sup>Id.<\/em> at 11.<\/span> These partisan primaries represent the real voter suppression and disenfranchisement in U.S. elections, not RCV combined with open, nonpartisan primary elections. The courts have not yet established the constitutional right for voters to participate in primary elections.86<\/a><\/sup>Id.<\/em> at 74. <\/span><\/p>\n

Voters in Alaska come from very diverse ethnicities and cultures, other states, and countries. That makes Alaska an important venue to disprove the misinformed statements heard in Montana and southern states.<\/p>\n

Ballots do not collect demographic information, so infallible documentation of voter ethnicity is not possible. However, in 2022 in Alaska, thirty-two percent of the eligible voters participated in the nonpartisan primary.87<\/a><\/sup>See<\/em> 2022 Primary Election, Election Summary Report, August 16, 2022, Official Results<\/em>, State of Alaska Div. of Elections<\/span> 1 (Sept. 2, 2022), https:\/\/www.elections.alaska.gov\/results\/22PRIM\/ElectionSummaryReportRPT.pdf [https:\/\/perma.cc\/HMW7-WZZY].<\/span> This was more than nine percentage points higher than in 2020.88<\/a><\/sup>Compare<\/em> id.<\/em> (demonstrating 32.16% voter turnout), with<\/em> 2020 Primary Election, Election Summary Report August 18, 2020, Official Results<\/em>, State of Alaska Div. of Elections<\/span> 1 (Aug. 31, 2020), https:\/\/www.elections.alaska.gov\/results\/20PRIM\/data\/sovc\/ElectionSummaryReportRPT20.pdf [https:\/\/perma.cc\/D5ET-UH8V] (demonstrating 22.70% voter turnout). <\/span><\/p>\n

Regarding minority voter turnout, data documents that Alaska Native turnout in the open primary increased in 2022. A post-election report commissioned by Get Out the Native Vote finds that voters in predominantly Alaska Native communities have consistently had lower turnout than voters across the rest of the state.89<\/a><\/sup>Get Out the Native Vote <\/span>& Ship Creek Group<\/span>, Open Primaries in Alaska Native Communities<\/span> 4, 22 (July 2024) [hereinafter GOTNV], https:\/\/aknativevote.com\/wp-content\/uploads\/2024\/07\/Open-Primaries-in-Alaska-Native-Communities_-Report.pdf [https:\/\/perma.cc\/ETU6-NWNE].<\/span> However, in 2022 open primary turnout increased relative to 2020 and 2018 for predominantly Alaska Native communities and the rest of the state.90<\/a><\/sup>Id.<\/em><\/span> Alaska\u2019s 2022 election resulted in significant progress for Alaska Native candidates, including the first Alaska Native person elected to Congress, as well as the election of Alaska Native candidates at the legislative level. Local media takes an active role in encouraging election participation in rural Alaska communities.91<\/a><\/sup>See, e.g.<\/em>, Sage Smiley, Alaska\u2019s Primary Election is Aug. 20. Here\u2019s What to Know about Voting in the Y-K Delta<\/em>, KYUK Pub. Media<\/span> (Aug. 19, 2024, 8:29 AM AKDT), https:\/\/www.kyuk.org\/politics\/2024-08-19\/alaskas-primary-election-is-aug-20-heres-what-to-know-about-voting-in-the-y-k-delta [https:\/\/perma.cc\/B7MF-ZJ8U]; Be Heard. Vote<\/em>., Get Out the Native Vote<\/span>, https:\/\/aknativevote.com\/ [https:\/\/perma.cc\/ZEB9-UGED].<\/span><\/p>\n

\u201cVoters in predominantly Alaska Native communities [also] had significantly higher rates of crossover voting than voters across the rest of the state.\u201d92<\/a><\/sup>Gotnv<\/span>, supra <\/em>note 89, at 4. <\/span> \u201cThis suggests that Alaska Native voters are especially well served by an open primary election system, in terms of the voting preferences indicated by voter behavior in predominantly Alaska Native communities.\u201d93<\/a><\/sup>Id. <\/em>at 5 (emphasis removed).<\/span><\/p>\n

It is important to note that the Division of Elections provides ballots in nine different Alaska Native languages.94<\/a><\/sup>About Language Assistance<\/em>, State of Alaska Div. of Elections<\/span>,

\nhttps:\/\/www.elections.alaska.gov\/language-assistance\/ [https:\/\/perma.cc\/TSF4-BEXS].<\/span> This is in addition to the special needs voter assistance provided by the Division.95<\/a><\/sup>Voter Assistance and Accessibility Information<\/em>, State of Alaska Div. of Elections<\/span>, https:\/\/www.elections.alaska.gov\/voting-assistance\/#ASL [https:\/\/perma.cc\/2L8B-3N8U] (providing information on \u201cspecial needs voting\u201d).<\/span> The U.S. Justice Department is monitoring compliance with language translation and assistance in 2024, as Alaska is focused on all Alaskans having access to voting.96<\/a><\/sup>Yareth Rosen, Justice to Monitor Alaska Primary Election for Compliance with Language Requirements<\/em>, Alaska Beacon<\/span> (Aug. 19, 2024, 4:24 PM), https:\/\/alaskabeacon.com\/briefs\/justice-to-monitor-alaska-primary-election-for-compliance-with-language-requirements\/ [https:\/\/perma.cc\/P95A-Q37L].<\/span><\/p>\n

Political party primary elections, funded and operated by state funds,with rules limiting eligible voters to only those who ascribe to the narrow ideological platform of that political party, are the principal factors that disenfranchise and suppress voter participation in primaries. In Alaska, many voters are not affiliated with either the Republican or the Democratic parties and thus would be limited by a closed primary in their opportunity to participate in choosing candidates that advance to the general election.<\/p>\n

Political parties argue that primary election reforms like the Alaska Model infringe on their right to choose their endorsed nominee for the general election. The U.S. Supreme Court and Alaska Supreme Court have rejected this argument, pointing out that the parties can choose a method to proceed with designating their preferred candidate for any election, and underscore that endorsement with funding communications promoting it.97<\/a><\/sup>See<\/em> Smiley v. Holm, 285 U.S. 355, 366 (1932); Kohlhaas v. State, 518 P.3d 1095, 1107 (Alaska 2022).<\/span><\/p>\n

As stated in Kolhaas v. State<\/em>, \u201c[P]olitical parties do not have a right to control the State\u2019s primary elections. They have a right to associate in order to nominate preferred candidates, but . . . political parties do not have a right to a State-run nominating process.\u201d98<\/a><\/sup>Kohlhaas<\/em>, 518 P.3d at 1108.<\/span><\/p>\n

Many false statements were made during session debate on the floors of state legislatures that have banned RCV, including references to an outdated 2016 paper that analyzed just two RCV elections in San Francisco.99<\/a><\/sup>Jason A. Mcdaniel, Writing the Rules to Rank the Candidates: Examining the Impact of Instant-Runoff Voting on Racial Group Turnout in San Francisco Mayoral Elections<\/em>, 38 J. Urb. Affairs<\/span> 387, 388 (2016).<\/span> More recent research finds that voters in RCV jurisdictions are 17% more likely to turn out in municipal elections,100<\/a><\/sup>E. Dowling, C. Tolbert, N. Micatka, & T. Donovan, Does Ranked Choice Voting Increase Voter Turnout and Mobilization?<\/em>, 90 Electoral Stud.<\/span> 1, 5 (2024), https:\/\/www.sciencedirect.com\/science\/article\/pii\/S026137942400074X?via%3Dihub [https:\/\/perma.cc\/L9Z8-SDSG].<\/span> and that RCV boosts youth turnout.101<\/a><\/sup>Courtney L. Juelich & Joseph A. Coll, Ranked Choice Voting and Youth Voter Turnout: The Roles of Campaign Civility and Candidate Contact<\/em>, 9 Pol. and Governance<\/span> 319, 329 (2021).<\/span><\/p>\n

A 2021 study found older voters were less <\/em>likely to leave blank rankings on their ballots than their younger voting counterparts, despite some older voters reporting that RCV was difficult.102<\/a><\/sup>Joseph A. Coll, Demographic Disparities Using Ranked-Choice Voting? Ranking Difficulty, Under-Voting, and the 2020 Democratic Primary<\/em>, 9 Pol. and Governance 293, 294<\/span> (2021).<\/span><\/p>\n

The Alaska Model does not disproportionately contribute to voter confusion. In fact, the evidence shows that voters like RCV and understand how to use it. Eighty-five percent of Alaskans understand it,103<\/a><\/sup>See generally <\/em>Alaskans for Better Elections<\/span>, Polling Shows Alaskan Voters Understand Ranked Choice Voting <\/span>(2022), https:\/\/www.alaskansforbetterelections.com\/polling-shows-alaskan-voters-understand-ranked-choice-voting\/ [https:\/\/perma.cc\/A7JR-QQRT]. <\/span> along with large majorities everywhere it is used.104<\/a><\/sup>See<\/em> Deb Otis, FairVote, Exit Surveys: Voters Love Ranked Choice Voting <\/span>(2024), https:\/\/fairvote.org\/report\/exit-surveys-report-2024\/ [https:\/\/perma.cc\/C758-65U3].<\/span> Voters across every ethnic group in New York City understood it well.105<\/a><\/sup>See<\/em> Marissa Solomon, Rank the Vote NYC Releases Edison Research Exit Poll on the Election<\/em>, ReadMedia<\/span> (June 28, 2021), http:\/\/readme.readmedia.com\/RANK-THE-VOTE-NYC-RELEASES-EDISON-RESEARCH-EXIT-POLL-ON-THE-fELECTION\/17989282?utm_source=newswfire&utm_medium=email&utm_campaign=media_pr_emails [https:\/\/perma.cc\/76D4-Y57G].<\/span><\/p>\n

Evidence shows that RCV benefits candidates and voters of color, as well as women. A 2024 report, Ranked Choice Voting Elections Benefit Candidates and Voters of Color<\/em>, finds that candidates of color saw increased vote counts and support with RCV.106<\/a><\/sup>Sabrina Laverty & Deb Otis, FairVote, Ranked Choice Voting Elections Benefit Candidates and Voters of Color <\/span>7\u20138, 10\u201311 (2024), https:\/\/fairvote.app.box.com\/s\/m0egmp5prl1e5lga2f1wgwnzyl8lj21x [https:\/\/perma.cc\/T7T3-KCXH].<\/span> Naturalized citizens and permanent residents of color support RCV.107<\/a><\/sup>Id.<\/em> at 12\u201314.<\/span><\/p>\n

In Alaska, the 2022 open, nonpartisan primary and general elections had more women candidates run for election than in the five previous, non-RCV election cycles.108<\/a><\/sup>Rachel Leven & Tyler Fisher, Unite Am. Inst., Alaska\u2019s Election Model: How the Top-Four Nonpartisan Primary System Improves Participation, Competition, and Representation<\/span> 3 (2023). <\/span> The 2022 election resulted in twenty-three new state legislators.109<\/a><\/sup>See <\/em>State of Alaska, 2022 General Election, Election Summary Report, November 8, 2022, Official Results<\/span> (2022) https:\/\/www.elections.alaska.gov\/results\/22GENR\/ElectionSummaryReportRPT.pdf [https:\/\/perma.cc\/52SP-A3Y4]. <\/span> New legislators of color included a Filipino woman, two Alaska Native representatives and two African American legislators, with three of these five new legislators of color being women.110<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In New York City, after the first election held using RCV, women are a majority in the city council for the first time.111<\/a><\/sup>Haly Jungwirth, History-Making Women and the RCV Elections That Put Them in Power<\/em>, Fair Vote <\/span>(Mar. 14, 2022),

\nhttps:\/\/fairvote.org\/history_making_women_and_rcv_elections_that_put_them_in_power\/ [https:\/\/perma.cc\/33QZ-HBBS].<\/span> At its first use of RCV, Salt Lake City council elections resulted in people of color winning a majority of seats, and most members identify as LGBTQ+.112<\/a><\/sup>Laverty & Otis, <\/span>supra<\/em> note 106, at 5; see also<\/em> AP<\/span>, Historic Salt Lake Council Majority LGBTQ, People of Color <\/em>(Jan. 4, 2022, 2:24 PM AKDT), https:\/\/apnews.com\/article\/lakes-race-and-ethnicity-utah-salt-lake-city-4e2e23fc6896bbc88dcdf7b9ee4ad5ea#:~:text=SALT%20LAKE%20CITY%20(AP)%20%E2%80%94,most%20are%20people%20of%20color [https:\/\/perma.cc\/UJ9E-HDRB].<\/span> In the 2023 elections, St. Paul, Minneapolis elected an all-woman city council; six of the seven members are people of color.113<\/a><\/sup>Rikki Clause, St. Paul, Minnesota, Elects All-Woman City Council for the First Time in City\u2019s History<\/em>, CNN <\/span>(Nov. 16, 2023, updated 8:40 AM EST), https:\/\/www.cnn.com\/2023\/11\/16\/us\/st-paul-minnesota-elects-all-women-city-council-reaj\/index.html [https:\/\/perma.cc\/755W-4HJJ].<\/span> Before RCV implementation, only one other African-American woman had served on the city council.114<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Ballots are Counted Timely; Concerns of Slow Returns are Overstated<\/em><\/strong><\/p>\n

Elected officials in the jurisdictions that banned RCV adamantly claimed that RCV leads to untimely election results that render a lack of faith in their accuracy and frequently held up Alaska\u2019s 2022 RCV general election results as evidence of slow returns. The sponsor of South Dakota\u2019s SB 55, for example, reported to his Senate colleagues in committee that RCV systems \u201cthreaten[ ] prompt elections results,\u201d saying that the notion that RCV provides \u201can instant runoff\u201d is a misnomer, because \u201c[i]t\u2019s anything but \u2018instant\u2019; [i]t\u2019s a complex process that has taken days or even weeks in some cases.\u201d115<\/a><\/sup>Hearing on S.B. 55 Before the S. Sta. Affairs Comm.<\/em>, Reg. Sess. 4:47\u20134:55 (S.D. Feb. 1, 2023), https:\/\/sdpb.sd.gov\/sdpbpodcast\/2023\/sen16.mp3#t=2354 (testimony of Sen. John Wiik); cf.<\/em> H.B. 3156, 2024 Leg., Reg. Sess. 10:07:15-10:08:06 AM (Okla. Apr. 24, 2024) (testimony of Rep. Brent Howard, Principal Senate Author) (suggesting that, unlike with RCV, \u201cthe other threat . . . would also be the timeliness[,] . . . whenever you run though our current voting system, you can find out pretty quickly who that winner is of that [race], and then go into the next election, however it might be chosen\u201d).<\/span> Likewise, in Louisiana, the SB 101 sponsor explained in a hearing: \u201c[T]here[ ] [are] very complicated rounds of tabulation which often result[ ] in delays . . . . So, in certain situations . . . the election results have been delayed up to two weeks, sometimes, a month. We\u2019ve seen examples of that in New York City [and] Alaska.\u201d116<\/a><\/sup>Hearing on S.B. 101 Before the S. & Gov\u2019t Affairs Comm.<\/em>, Reg. Sess. 37:15\u00ac\u201337:40 (part 2) (La. Mar. 13, 2024), https:\/\/senate.la.gov\/s_video\/VideoArchivePlayer?v=senate\/2024\/03\/031324SGA2 (testimony of Sen. Blake Miguez). <\/span> Montana\u2019s H.B. 598 sponsor testified that with RCV, \u201cballots across the state must be transported to a centralized location for counting,\u201d leading to long delays in results, and adding that in its first election under RCV, \u201cAlaska took almost a month to get the results.\u201d117<\/a><\/sup>Hearing on H.B. 598 Before the H. Sta. Admin. Comm.<\/em>, Reg. Sess. 9:47:20\u20139:47:44 (Mont. Feb. 27, 2023), https:\/\/sg001-harmony.sliq.net\/00309\/Harmony\/en\/PowerBrowser\/PowerBrowserV2\/20170221\/-1\/48263?agendaId=255049#agenda_ (testimony of Rep. Lyn Hellegaard).<\/span><\/p>\n

It is completely erroneous to claim that RCV delayed Alaska election results tabulation. In accordance with long-standing Alaska statutes, all absentee ballots must be counted no later than ten days after the date of the primary election and fifteen days after the general election and all other state conducted elections. This is not new. It applied to the previous, party-controlled primary elections and general elections in Alaska.<\/p>\n

As mentioned in the introduction, Alaska is two and a half times the size of Texas with the second smallest population. Alaska also has a very large number of active-duty military, who benefit significantly from RCV. RCV is also referred to as \u201cinstant run-off\u201d election; if a run-off is required, Alaska military registered voters have already been included through RCV. Alaska is a paper-based ballot voting system, but also offers voting by fax, in addition to vote-by-mail. Ballots must be postmarked on or before election day.<\/p>\n

Alaska uses three voting methods at the precinct on election day. Precinct scanners are typically in urban areas of the state with a larger number of voters. Hand-count precincts are typically in rural areas of the state, and every precinct in Alaska will have a voting tablet that produces a paper ballot.<\/p>\n

To allow for rural Alaskan mail and overseas mail to arrive, Alaska has in place the fifteen-day period, after the election, before final ballot count and election certification. In 2022, when Day fifteen arrived, the ballots were quickly and publicly counted. Any election without more than fifty percent on the first tabulation immediately moved to ranked vote counting, which was completed easily, publicly, and within minutes.118<\/a><\/sup>Watch Alaska Ranked-Choice Vote Tabulation in 2022 Election<\/em>, Anchorage Daily News<\/span> (Nov. 23, 2022), https:\/\/www.adn.com\/politics\/2022\/11\/23\/watch-live-at-4-pm-alaskas-ranked-choice-vote-tabulation-in-the-2022-election\/ [https:\/\/perma.cc\/96R3-V4DN].<\/span><\/p>\n

2. Although RCV Opponents Allege Diminished Voter Confidence, RCV is Trustworthy and Benefits Voters<\/em><\/p>\n

Many of the state lawmakers pushing to ban RCV election systems claimed to their colleagues that RCV is undesirable because of the potential for corrupt practices by elections officials and threats to elections security, leading to an unwanted consequence of diminished voter confidence. As the sponsor of Montana\u2019s H.B. 598 alleged, \u201cExperts contend it makes elections more vulnerable to corruption and mismanagement.\u201d119<\/a><\/sup>Hearing on H.B. 598 Before the H. Sta. Admin. Comm., Reg. Sess. 9:47:44\u20139:47:50 (Mont. Feb. 27, 2023), https:\/\/sg001-harmony.sliq.net\/00309\/Harmony\/en\/PowerBrowser\/PowerBrowserV2\/20170221\/-1\/48263?agendaId=255049#agenda_ (testimony of Rep. Lyn Hellegaard). <\/span> In Idaho, a purpose statement published by the sponsors of the RCV prohibition there suggests that H.B. 179 would \u201cpreserve a fair and transparent electoral process\u201d and articulated a policy objective \u201cto ensure every vote is counted accurately and the candidate with the most votes is elected.\u201d120<\/a><\/sup>Sen. Glenneda Zuiderveld & Rep. Dale Hawkins, Statement of Purpose, RS30353 \/ H0179 (Idaho Feb. 21, 2023, 9:45 AM), available at<\/em> https:\/\/legislature.idaho.gov\/wp-content\/uploads\/sessioninfo\/2023\/legislation\/H0179SOP.pdf [https:\/\/perma.cc\/S2MK-RBEY].<\/span> In committee testimony in Idaho, RCV opponents asserted that RCV \u201cgave a false impression that a voter was in control of his vote,\u201d and implied that RCV is subject to corrupted or erroneous results because it \u201cushered in algorithms without a transparent means to audit the vote.\u201d121<\/a><\/sup>Minutes, Hearing on H.B. 179 Before the S. Sta. Affairs Comm., Reg. Sess., at 2 (Idaho Mar. 15, 2023), https:\/\/legislature.idaho.gov\/wp-content\/uploads\/sessioninfo\/2023\/standingcommittees\/SSTAmin.pdf#page=645 (testimony of Sen. Glenneda Zuiderveld).<\/span> In a similar vein, the House sponsor of Tennessee\u2019s S.B. 1820 stated that he considered RCV to be a \u201cconfusing methodology of tabulating votes\u201d that \u201ccreates a lack of confidence in the vote totals.\u201d122<\/a><\/sup>S.B. 1820, 193d Gen. Assem., Reg. Sess. 35:54\u201336:30 (Ky. Feb. 2, 2023), https:\/\/tnga.granicus.com\/player\/clip\/26088?view_id=610&redirect=true (statement of Rep. Kevin Vaughan).<\/span> While in Mississippi, the sponsor of the RCV ban that was eventually enacted in S.B. 2144 expressed in floor debate that the prohibition was \u201cabout election security\u201d as well as about \u201cmaking sure that people vote for who they vote for, that their vote counts . . . [and] they\u2019re not having a situation where ballots are getting cast out.\u201d123<\/a><\/sup>S.B. 2367, 2024 Leg., Reg. Sess. 7:00\u20137:35 (Miss. Mar. 7, 2024), https:\/\/law-db.mc.edu\/legislature\/bill_details.php?id=13287&session=2024 (statement of Sen. Jeremy England).<\/span> Finally, the sponsor of South Dakota\u2019s S.B. 55 proclaimed his bill to be aimed at \u201cpreserv[ing] the sanctity of our election system\u201d124<\/a><\/sup>Hearing on S.B. 55 Before the S. Sta. Affairs Comm.<\/em>, Reg. Sess. 4:55\u20135:03 (S.D. Feb. 1, 2023), https:\/\/sdpb.sd.gov\/sdpbpodcast\/2023\/sen16.mp3#t=2354 (testimony of Sen. John Wiik).<\/span> and deemed it \u201cessential<\/em> for voter confidence and a straightforward approach to electing our local and state leaders.\u201d125<\/a><\/sup>Id.<\/em> at 6:00\u20136:06 (testimony of Sen. John Wiik) (emphasis in audio).<\/span><\/p>\n

RCV is so efficient, cost-effective, and trustworthy that five Southern states (Alabama, Georgia, Mississippi, South Carolina, and Louisiana) provide ranked-choice ballots to their military voters. This provides active-duty military members their Constitutional right to vote while deployed or on assignment around the world. The RCV ballot provides the military and overseas voters the full voting opportunity, allowing their votes to count even if a runoff election is required.<\/p>\n

If RCV were corrupt, these five conservative Southern states would not be confidently using it to ensure the voting voice is heard from Americans putting themselves in harm\u2019s way to defend our Constitution. And if RCV is good enough for our men and women in uniform, it should certainly be good enough for all voters.<\/p>\n

According to a recent analysis, among thirty-two states that had held their 2024 primaries at the time of its reporting, forty-nine candidates had won their statewide and congressional primaries with votes totaling less than fifty percent of those that were cast.126<\/a><\/sup>Bailey Bowman, \u201cFewest Votes Wins\u201d: 49 States and Congressional Primaries Won with Less than 50% of the Vote<\/em>, Fair Vote<\/span> (Aug. 2, 2024), https:\/\/fairvote.org\/fewest-votes-wins-49-statewide-and-congressional-primaries-won-with-less-than-50-of-the-vote\/ [https:\/\/perma.cc\/CM8C-QNV3].<\/span> The analysis observed that among those outcomes, there were at least twelve candidates who had won their primaries with only one-third or less of the votes.127<\/a><\/sup>Id.<\/em><\/span> These elections were conducted through primary systems in which only voters affiliating with specific political parties could participate,128<\/a><\/sup>See<\/em> Primary Election Types by State<\/em>, Ballotpedia<\/span>, https:\/\/ballotpedia.org\/Primary_election_types_by_state [https:\/\/perma.cc\/D6T2-5R22] (demonstrating numbers of open primaries versus closed and partially-closed primaries).<\/span> excluding major segments of qualified voters.<\/p>\n

Alaska has real experience with RCV that has demonstrated its reliability to count all votes that were cast, transparency in the process, and simplicity in recounting any contested election results. The Alaska Division of Elections utilizes Dominion brand voting machines to receive and count votes; with programming updates, the machines are capable of counting RCV ballots.129<\/a><\/sup>See<\/em> Tim Bradner, Ranked-Choice Voting Worked Well, State Election Officials Say. So Did Dominion Voting Machines<\/em>, The Frontiersman<\/span> (Sept. 22, 2022), https:\/\/www.frontiersman.com\/news\/ranked-choice-voting-worked-well-state-election-officials-say-so-did-dominion-voting-machines\/article_9037c660-3af6-11ed-a71f-e3e41064f548.html [https:\/\/perma.cc\/STW4-LULB]. <\/span> In the 2022 election, the counting process was broadcasted through social media and continually updated online for all voters to watch.130<\/a><\/sup>Watch Alaska Ranked-Choice Vote Tabulation in 2022 Election<\/em>, Anchorage Daily News<\/span>, (Nov. 23, 2022), https:\/\/www.adn.com\/politics\/2022\/11\/23\/watch-live-at-4-pm-alaskas-ranked-choice-vote-tabulation-in-the-2022-election\/ [https:\/\/perma.cc\/Y24B-J9XX].<\/span> Two election results were contested and recounted. In House District 15, the original vote count was 3,476 versus 3,483; the recount vote count was 3,476 versus 3,485, an increase of two votes for the winning candidate.131<\/a><\/sup>Compare<\/em> RCV Detailed Report General Election State of Alaska November 8, 2022, House District 15<\/span> 2 (2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/15.pdf [https:\/\/perma.cc\/UK59-R9PZ], with<\/em> RCV Detailed Report General Election State of Alaska November 8, 2022, House District 15<\/span> 2 (2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/15_recount_rcv.pdf [https:\/\/perma.cc\/CH7K-HYKP]. See also<\/em> State of Alaska, 2022 General Election, Statement of Votes Cast, November 8, 2022, Official Recount Results<\/span> (2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/HD15_recount.pdf [https:\/\/perma.cc\/D7GM-SXDY]. <\/span> In Senate District E, the original vote count was 5,949 versus 7,881; the recount vote count was 5,951 versus 7,880.132<\/a><\/sup>Compare<\/em> RCV Detailed Report General Election State of Alaska November 8, 2022<\/span>, Senate District E<\/span> 2 (2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/E.pdf [https:\/\/perma.cc\/7C2Z-2D6L], with<\/em> RCV Detailed Report General Election State of Alaska November 8, 2022, Senate District E<\/span> 2 (2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/E_recount_rcv.pdf [https:\/\/perma.cc\/UHV7-7LDP]. See <\/em>State of Alaska, 2022 General Election Statement of Votes Cast, November 8, 2022, Official Recount Results<\/span> 2 (2022), https:\/\/www.elections.alaska.gov\/results\/22GENR\/SENATE%20E_recount.pdf [https:\/\/perma.cc\/7BVG-FRF3].<\/span> Therefore, neither election outcome changed upon recount.<\/p>\n

The Alaska Model incorporates an open, nonpartisan primary, called the \u201cPick One Primary,\u201d in which the voter chooses one candidate from the entire list of candidates. The list of candidates can be very long, as occurred in the first use of the Alaska Model in the special primary election to replace deceased Congressman Don Young in June 2022, in which forty-eight candidates ran for the office.133<\/a><\/sup>See<\/em> Summary for: All Contests, All Districts, All Tabulators, All Counting Groups, State of Alaska \u2013 2022 Special Primary Election, Election Summary Report, June 11, 2022, Official Results<\/span> (2022), https:\/\/www.elections.alaska.gov\/results\/22SPECPRIM\/ElectionSummaryReportRPT.pdf [https:\/\/perma.cc\/6YV5-N6KM].<\/span> Many Alaskans expressed feeling overwhelmed with the forty-eight choices.134<\/a><\/sup>See<\/em> Becky Bohrer, Palin Among 48 Candidates Vying for Alaska House Seat<\/em>, PBS News<\/span> (June 5, 2022, 3:24 PM), https:\/\/www.pbs.org\/newshour\/politics\/palin-among-48-candidates-vying-for-alaska-house-seat [https:\/\/perma.cc\/BTZ9-5TVK].<\/span> Alaskans made their choices, resulting in the top four vote-getters going forward to the special general election.135<\/a><\/sup>See<\/em> Q&As with Alaska\u2019s U.S. House Candidates in the 2022 Special Primary Election, <\/em>Anchorage Daily News<\/span> (May 29, 2022), https:\/\/www.adn.com\/politics\/2022\/05\/03\/qa-with-alaskas-us-house-candidates-in-the-2022-special-primary-election\/ [https:\/\/perma.cc\/2LW5-63VK]; Guerin v. State, 537 P.3d 770, 785 (Alaska 2023). One of the four special primary election winners dropped out late in the race, and because of deadlines in Alaska law, no replacement was substituted. If the candidate had withdrawn timely, the fifth-place finisher from the primary would have appeared on the Special General Election ballot. See id.<\/em> at 775, 785.<\/span><\/p>\n

The special general election took place in August 2022 with three candidates to rank. This was not confusing to voters, according to exit polling. August 2022 exit polling showed that ninety-five percent of Alaskans reported receiving instructions on how to rank their choices, and eighty-five percent of Alaskans reported ranked-choice voting to be \u201csimple.\u201d136<\/a><\/sup>See<\/em> Amanda Moser, Polling Shows Alaskan Voters Understand Ranked Choice Voting<\/em>, Alaskans for Better Elections<\/span> (Nov. 22, 2022), https:\/\/www.alaskansforbetterelections.com\/polling-shows-alaskan-voters-understand-ranked-choice-voting\/ [https:\/\/perma.cc\/MK54-PM39] (providing Patinkin Research Strategies exit poll results on Alaska\u2019s first use of RCV, in a special general election). <\/span> November 2022 exit polling showed that \u201c92% of Alaskans reported receiving instructions on how to rank their choices, 79% of Alaskans reported ranked-choice voting to be \u2018simple,\u2019 and 60% [said that] Alaska\u2019s state and local elections were more competitive compared to previous years.\u201d137<\/a><\/sup>See <\/em>Amanda Moser, Polling Shows Alaskan Voters Received Clear Instructions on the System, Found Ranking to Be \u201cSimple,\u201d and Saw More Competitive Races<\/em>, Alaskans for Better Elections<\/span> (Aug. 30, 2022), https:\/\/www.alaskansforbetterelections.com\/polling-shows-alaskan-voters-received-clear-instructions-on-the-system-found-ranking-to-be-simple-and-saw-more-competitive-races\/ [https:\/\/perma.cc\/3YFB-ASSD] (providing Patinkin Research Strategies exit poll results on Alaska\u2019s second use of RCV, in a regular general election).<\/span><\/strong><\/p>\n

The special general election\u2019s initial vote count gave Peltola 40.19%, not reaching the more than fifty percent threshold. RCV tabulation was executed, through which Peltola received additional votes as voters\u2019 second choice, giving her 51.48%, enough to win the election.138<\/a><\/sup>See<\/em> State of Alaska, 2022 Special General Election, RCV Tabulation August 16, 2022 Official Results<\/span> 2 (2022), https:\/\/www.elections.alaska.gov\/results\/22SSPG\/RcvDetailedReport.pdf [https:\/\/perma.cc\/YEZ5-ABPE]. <\/span><\/p>\n

The benefit of RCV is that candidates no longer win with as little as thirty-four percent of the vote, as was possible under the previous partisan primary system. By requiring more than fifty percent of the vote, Alaskans know that the candidate is truly representing a majority of the voters.<\/p>\n

3. RCV Implementation Costs are Not Excessive and Preserve the Constitutional Right to Vote<\/em><\/p>\n

Among the states prohibiting RCV through legislative enactment, several proponents of prohibition contended that implementation and utilization of RCV are expensive or otherwise cost the state financially. The argument against RCV as an election reform appears rooted in the traditional conservative pronouncement of concern for government waste and overspending, readily working as a persuasion tactic among conservative-majority legislatures. For instance, in his floor speech to the Kentucky Senate, the sponsor of SB 1820 stated that among the several ills enveloping RCV is that it \u201cleads to reporting results in a process that\u2019s difficult, slow, and costly.\u201d139<\/a><\/sup>S.B. 1820, 112th Gen. Assem., Reg. Sess. 25:58\u201326:02 (Tenn. Feb. 14, 2023) (statement of Sen. Brian Kelsey), https:\/\/tnga.granicus.com\/player\/clip\/26088?view_id=610&redirect=true.<\/span> Montana HB 598\u2019s sponsor expounded that belief, explaining that RCV \u201cdoesn\u2019t result in a cost savings.\u201d140<\/a><\/sup>Hearing on H.B. 598, Before the H. Sta. Admin. Comm.<\/em>, 68th Leg., Reg. Sess. 9:47:50\u20139:48:11 (Mont. Feb. 27, 2023) (testimony of Rep. Lyn Hellegaard) (emphasis added), https:\/\/sg001-harmony.sliq.net\/00309\/Harmony\/en\/PowerBrowser\/PowerBrowserV2\/20170221\/-1\/48263?agendaId=255049#agenda_.<\/span> In fact, she asserted to the contrary that RCV \u201crequires purchase and installation of a special software, additional training on that software, security-risk solutions, and with the inevitable cost that we all know about when the government institutes a new program.\u201d141<\/a><\/sup>Id.<\/em><\/span> And South Dakota SB 55\u2019s sponsor raised a similar complaint during floor session, describing the RCV tabulating procedures as \u201ca complicated, drawn out, expensive process.\u201d142<\/a><\/sup>S.B. 55, 98th Leg., Reg. Sess. 36:34\u201336:42 (S.D. Feb. 2, 2023) (statement of Sen. John Wiik), https:\/\/sdlegislature.gov\/Session\/Bill\/23968.<\/span><\/p>\n

As previously reviewed, five Southern states (Alabama, Georgia, Mississippi, South Carolina, and Louisiana) provide ranked-choice ballots to their military voters. This method provides active-duty military members their constitutional right to vote while deployed or on assignment around the world.<\/p>\n

If a federal election requires a runoff, federal law requires that the ballots be provided to military and overseas voters forty-five days prior to any federal election.143<\/a><\/sup>See<\/em> The Uniformed and Overseas Citizens Absentee Voting Act Overview<\/em>, Fed. Voting Assistance Program,<\/span> https:\/\/www.fvap.gov\/info\/laws\/uocava [https:\/\/perma.cc\/FE85-VAU2] (noting that \u201camong other provisions, the MOVE Act<\/em> requires States to send absentee ballots to UOCAVA<\/em> voters at least 45 days before federal elections\u201d).<\/span> This typically means that the state must delay the runoff election to allow for the printing of new ballots, followed by the forty-five-day window for the ballots to be provided overseas. This creates expenses, including creating and printing new runoff ballots, staffing polling sites, postage costs, and operating the counting mechanisms.<\/p>\n

Before BM 2 passed, in March 2020, the Division of Elections sought and received an appropriation from the Alaska Legislature of $4.4 million, representing the costs for usual Division operations in fiscal year 2021.144<\/a><\/sup>2020 Alaska Sess. Laws ch. 8, \u00a7 1 (evidencing, under Section 1 of HB 205 covering \u201coperating expenditures,\u201d a general appropriation item for the Office of the Governor titled \u201cElections\u201d). <\/span> After BM 2 passed, the Division only needed an additional, one-time appropriation of $804,000 for the capital costs to physically implement RCV system modifications.145<\/a><\/sup>2021 Alaska Special Sess. Laws ch. 1, \u00a7 8 (demonstrating, under HB 69, appropriation item for \u201cBallot Measure 2 Implementation\u201d).<\/span> A fiscal year 2022\u201323 multi-year appropriation of $4.3 million was meant for multiple purposes, including RCV and voter education, with three million dollars ultimately devoted to that purpose.146<\/a><\/sup>See<\/em> Legis. Fin. Div. Fiscal Year 2025 Operating Budget Office of the Governor Enacted Budget<\/span> 3 (providing \u201cFiscal Analyst Comment\u201d on previous FY 22\u201323 multi-year appropriation and amount expended for educational purposes).<\/span> The fiscal year 2024\u201325 multi-year appropriation to the Division was $2.5 million for RCV outreach and education,147<\/a><\/sup>Id.<\/em> (depicting appropriated sum under \u201cAmount Enacted\u201d).<\/span> some of which has been applied for the 2024 election. These funds have been used for multiple purposes, including voting machine software updates, informational mailings to all voters, media advertising, and presence and presentations at various fairs, festivals, and conferences around the state.148<\/a><\/sup>2021 Alaska Special Sess. Laws ch. 1, \u00a7 8.<\/span> The Division of Elections website posted copies of the ballots, both open primary and RCV general ballots, with explanatory videos.149<\/a><\/sup>See, e.g.<\/em>, Sample Ballot, State of Alaska Official Ballot June 11, 2022 Special Primary Election, State of Alaska<\/span> https:\/\/www.elections.alaska.gov\/election\/2022special_primary_sb\/SB-English%20HD99.pdf [https:\/\/perma.cc\/S8MH-73TC] (depicting sample ballot for 2022 statewide congressional primary election, the first \u201cpick one\u201d open primary under BM 2 changes to law); Sample Ballot, State of Alaska Official Ballot August 16, 2022 Special General Election<\/span>, State of Alaska<\/span> https:\/\/www.elections.alaska.gov\/election\/2022\/prim\/HD1.pdf [https:\/\/perma.cc\/9RXM-Z5GL] (depicting sample ballot for 2022 House District 1 congressional regular \u201cpick one\u201d primary and, on the backside, the congressional special general election, which was the first RCV procedure ballot under BM 2 changes to law); Elections Essentials<\/em>, Ranked Choice Voting<\/em>, How to Mark Your Ballot<\/em>, State of Alaska Div. of Elections<\/span>, https:\/\/www.elections.alaska.gov\/essentials\/#RankedChoice (providing instructional RCV video).<\/span><\/p>\n

To summarize on fiscal costs, ordinary Division of Elections operations typically ran over four million dollars. Alaska spent $804,000 on the infrastructure for RCV and will have invested three million dollars for education and outreach, and $2.5 million moving forward. Voter education and outreach are necessary for transitioning to a new election system, empowering citizens to understand and fully exercise their voting rights, so those expenses amount to a valuable investment for the state. Those costs are likely short-term, tapering off as voters gain experience with RCV. The low dollar amounts expended support the position that RCV is not too costly, at least in Alaska\u2019s experience.<\/p>\n

4. Legislatures Banning RCV Wrongly Believe It Is Inconsistent with \u201cOne Person, One Vote\u201d <\/em><\/p>\n

Several state legislatures hearing from sponsors of bills banning RCV were instructed, without substantiation, that RCV election systems violate the constitutional principle of \u201cone person, one vote.\u201d The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution \u201cguarantees the opportunity for equal participation by all voters.\u201d150<\/a><\/sup>Reynolds v. Sims, 377 U.S. 533, 566 (1964).<\/span> Each voter possesses equivalent value to the next; as embodied by one person, one vote<\/em>, \u201c[n]ot the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune\u201d may be accorded a stronger role or voice in the democratic process.151<\/a><\/sup>See<\/em> Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (quoting The Federalist<\/span> No. 47, at 385 (James Madison) (Cooke ed., 1961)) (citing Gray v. Sanders, 372 U.S. 368, 381 (1963)) (construing Art. I, \u00a7 2, of the U.S. Constitution regarding apportionment for congressional representation).<\/span><\/p>\n

Proponents of RCV bans relayed claims to fellow lawmakers that RCV was constitutionally infirm under the \u201cone person, one vote\u201d doctrine in two seeming ways: first, that in selecting preferences in excess of one, the voter is actually voting more than once; and second, that if a person casts votes for fewer preferences than permitted, the person\u2019s voting rights are abridged relative to the voters who follow through with ranking the full range of permissible preferences.<\/p>\n

For instance, the sponsor of South Dakota\u2019s SB 55 told members in committee that contrary to the contentions of advocates that RCV represents a fair model of elections reform, \u201cIn reality, RCV breaks the longstanding principle of \u2018one person, one vote.\u2019\u201d152<\/a><\/sup>Hearing on S.B. 55, Before the S. Sta. Affairs Comm.<\/em>, 98th Leg., Reg. Sess., 3:36\u20133:43 (S.D. Feb. 1, 2023) (testimony of Sen. John Wiik), https:\/\/sdpb.sd.gov\/sdpbpodcast\/2023\/sst15.mp3#t=216.<\/span> In Louisiana, the sponsor of SB 101 criticized RCV processes as \u201cun-American,\u201d while further declaring, \u201c[R]emember, it\u2019s \u2018one person, one vote\u2019 and . . . we . . . need to respect that.\u201d153<\/a><\/sup>Hearing on S.B. 101, Before the S. & Gov\u2019t Affairs Comm.<\/em>, 2024 Leg., Reg. Sess. (pt. 2), 36:34\u201336:59 (La. Mar. 13, 2024) (testimony of Sen. Blake Miguez), https:\/\/senate.la.gov\/s_video\/VideoArchivePlayer?v=senate\/2024\/03\/031324SGA2. <\/span> When asked about the applicability of Oklahoma\u2019s HB 3156 to ban RCV for even local elections, the prime senate sponsor testified that \u201callowing people to go to the ballot and . . . have that say of one voter[], one vote of who they prefer to get elected to that position is enough of an election integrity issue\u201d to warrant that application.154<\/a><\/sup>Hearing on H.B. 3156, Before the S. Gen. Gov\u2019t & Transp. Comm.<\/em>, 59th Leg., 2d Reg. Sess., 2:10:48\u20132:11:00 (Okla. Apr. 11, 2024) (testimony of Rep. Brent Howard), https:\/\/sg001-harmony.sliq.net\/00282\/Harmony\/en\/PowerBrowser\/PowerBrowserV2\/20241030\/-1\/77882?startposition=20240411141045&mediaEndTime=20240411141100&viewMode=3&globalStreamId=3.<\/span> A senate supporter of Idaho\u2019s HB 179 expressed to committee members at its first senate hearing that \u201c[h]ow votes [are] counted [is] important . . . [whereas] RCV changed the presumption of one man[,] one vote.\u201d155<\/a><\/sup>Hearing on H.B. 179, Before the S. Sta. Affairs Comm.<\/em>, 67th Leg., 1st Reg. Sess. 2 (Idaho Mar. 15, 2023) (testimony of Sen. Glenneda Zuiderveld), https:\/\/legislature.idaho.gov\/wp-content\/uploads\/sessioninfo\/2023\/standingcommittees\/SSTAmin.pdf#page=645.<\/span> She further suggested that \u201cRCV [gives] certain people two votes instead of one.\u201d156<\/a><\/sup>Id.<\/em><\/span> While addressing his counterparts during final passage, the sponsor of SB 55 articulated an example:<\/p>\n

If you choose to only vote your first choice in the first column, and leave the rest blank, you\u2019re denied the right to vote in the runoff. If your second-choice candidate is thrown out on the first [round], then you\u2019re denied the right to vote in that runoff\u2014because you had no idea who would even be left on the ballot when you made your voting choice.<\/em>157<\/a><\/sup>

\nS.B. 55, 2023 Leg., Reg. Sess. 36:40-37:10 (S.D. Feb. 2, 2023) (statement of Sen. John Wiik), https:\/\/sdpb.sd.gov\/sdpbpodcast\/2023\/sen16.mp3#t=2354.<\/span><\/p>\n

During floor debate on HB 3156, the prime senate sponsor explained that he believed the voting rights of Oklahoma citizens to be so fundamental as to be \u201csomething that we need to protect, especially when it comes to one vote for one voter, and not having ways of dilution or otherwise . . . diminishing that one vote for the person.\u201d158<\/a><\/sup>H.B. 3156, 2024 Leg., Reg. Sess.10:04:55-10:05:40 AM (Okla. Apr. 24, 2024) (statement of Rep. Brent Howard), https:\/\/oksenate.gov\/room-535 [https:\/\/perma.cc\/6G78-59R8].<\/span><\/p>\n

Every voter has exactly one equal vote in RCV. The voter can choose to use their one vote or not; in other words, they may choose to vote for only one person, relinquishing their opportunity to have their vote recorded in a second or third ranking. Once the voter has cast their ranked ballot, there is no later opportunity to update or cast new votes. The subsequent tabulations record the ballot as submitted, with one, two, three, or four preferences expressed, as chosen by the voter.<\/p>\n

Several courts have affirmed the principle of \u201cone person, one vote.\u201d The claim that some voters get \u201cmore votes\u201d than others in RCV is false. Several state and federal courts have found that RCV fully complies with the principle of \u201cone person, one vote.\u201d<\/p>\n

The clearest statements have come from the Ninth Circuit Court of Appeals in Dudum v. Arntz<\/em> in discussing the ranking tabulations in Instant-Runoff Voting (IRV):<\/p>\n

In actuality, all voters participating in a restricted IRV election are afforded a single and equal opportunity to express their preferences for three candidates; voters can use all three preferences, or fewer if they choose. Most notably, once the polls close and calculations begin, no new votes<\/em> are cast. To determine the winner of the election based on that single set of votes cast, restricted IRV uses an algorithm. The ballots, each representing three or fewer preferences, are the initial inputs; the sequence of calculations mandated by restricted IRV is used to arrive at a single output\u2014one winning candidate.<\/em>159<\/a><\/sup>

\nDudum v. Arntz, 640 F.3d 1098, 1107 (9th Cir. 2011).<\/span><\/p>\n

The series of calculations in RCV entails counting of votes in a single round of voting. In the Kohlhaas<\/em> case, the Alaska Supreme Court reiterated this conclusion, explaining, \u201c[T]here is no question that a ranked-choice vote is a single vote<\/em>. Rankings reflect alternative votes, not multiple votes.\u201d160<\/a><\/sup>Kohlhaas v. State, 518 P.3d 1095, 1122 (Alaska 2022) (emphasis added). <\/span><\/p>\n

RCV is designed to give the dominant voice to voters, not political party mechanisms which limit who can vote in primary elections. Simply put, nonpartisan primary and RCV general elections follow the voiced intent of America\u2019s Founders related to political parties. As John Adams\u2014who would later become the second U.S. president\u2014once stated:<\/p>\n

There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.<\/em>161<\/a><\/sup>

\nLetter from John Adams to Jonathan Jackson<\/span> (Oct. 2, 1780), reprinted in<\/em> Founders Online<\/span>, https:\/\/founders.archives.gov\/documents\/Adams\/06-10-02-0113 [https:\/\/perma.cc\/U9VD-QDQ4].<\/span><\/p>\n

And as President George Washington sagely advised in his presidential farewell address to the nation:<\/p>\n

Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally. . . The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.<\/em>162<\/a><\/sup>

\nGeorge Washington, President of the United States, Farewell Address to the People of the United States (Sept. 19, 1796), available at<\/em> https:\/\/www.senate.gov\/artandhistory\/history\/resources\/pdf\/Washingtons_Farewell_Address.pdf [https:\/\/perma.cc\/8UY9-EXU2]. <\/span><\/p>\n

Voters turn out in nonpartisan primary elections. With the institution of the nonpartisan primary in 2022, nine percent more voters participated than in 2020; 2020 and 2022 were the highest voter turnout years compared to pre-COVID-19.163<\/a><\/sup>James Brooks, Alaska\u2019s Pre-Primary Election Turnout is Down from Extraordinary 2022 and 2020 Primaries<\/em>, Alaska Public Media<\/span> (Aug. 13, 2024), https:\/\/alaskapublic.org\/2024\/08\/13\/alaskas-pre-primary-election-turnout-is-down-from-extraordinary-2022-and-2020-primaries\/ [https:\/\/perma.cc\/DJ9F-P8B4].<\/span><\/p>\n

The nonpartisan primary election addresses the problem of voter suppression and disenfranchisement that is prevalent in conventional, political-party-controlled primary elections. In these elections, participation is restricted to only party members or those willing to restrict themselves to one party\u2019s ballot. There are forty-five states conducting partisan primaries, fifteen of which exclude independent voters, thus disenfranchising over fourteen million Americans in these primary elections; nearly thirty percent of African Americans identify as independents.164<\/a><\/sup>Troiano, supra<\/em> note 84, at 5\u20136.<\/span><\/p>\n

To reiterate previous findings, in 2022, only eight percent of all voters cast ballots in the partisan primaries that determined eighty-three percent of the U.S. House election outcomes.165<\/a><\/sup>Id.<\/em> at 5.<\/span> Partisan primary elections represent the real voter suppression and disenfranchisement in U.S. elections, not non-partisan primary elections combined with RCV general elections. The courts have not yet established the constitutional right for voters to participate in primary elections.166<\/a><\/sup>Id.<\/em> at 83.<\/span><\/p>\n

B. Federal and State Court Decisions Confirm that the Alaska Model and RCV are Constitutionally Sound<\/em><\/p>\n

As more states and local governments adopt ranked-choice voting, there have been a variety of lawsuits challenging RCV on federal and state constitutional grounds. Common legal challenges against RCV have included claims that RCV violates, inter alia<\/em>: (1) the Equal Protection Clause of the Fourteenth Amendment;167<\/a><\/sup>U.S. Const.<\/span> amend. XIV, \u00a7 1 (\u201cNo State shall . . . deny to any person within its jurisdiction the equal protection of the laws\u201d).<\/span> (2) the First Amendment freedom of association168<\/a><\/sup>U.S. Const.<\/span> amend. I, \u00a7 1 (\u201cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances\u201d).<\/span>; and (3) state constitutional requirements that election winners possess a plurality of votes.169<\/a><\/sup>See <\/em>Richard H. Pildes & Michael G. Parsons, The Legality of Ranked-Choice Voting<\/em>, 109 Calif. L. Rev. <\/span>1773, 1788 (2021) (citations omitted). <\/span> While the Maine Supreme Judicial Court issued a nonbinding advisory opinion finding RCV violated the Maine constitution for non-federal races,170<\/a><\/sup>Op. of the Justices, 162 A.3d 188, 211 (Me. 2017).<\/span> several courts across the United States\u2014in binding decisions\u2014have upheld the constitutionality of ranked-choice voting171<\/a><\/sup>See, e.g<\/em>., Kohlhaas v. State, 518 P.3d 1095 (Alaska 2022); Baber v. Dunlap, 376 F. Supp. 3d 125 (D. Maine 2018); Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011); Minnesota Voters All. v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009).<\/span> and the Supreme Court in 2008 upheld the constitutionality of Washington\u2019s open primary.172<\/a><\/sup>Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008).<\/span> The following discussion outlines some of the major recent court findings pertinent to RCV.<\/p>\n

1. States are Granted Wide Latitude to Conduct Elections<\/em><\/p>\n

The U.S. Constitution grants states wide latitude in how they conduct elections.173<\/a><\/sup>U.S. Const.<\/span> art. 1, \u00a7 4 (\u201cThe Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators\u201d).<\/span> While voting is the cornerstone of our federal republic,174<\/a><\/sup>Reynolds v. Sims, 377 U.S. 533, 562 (1964) (\u201cUndoubtedly, the right of suffrage is a fundamental matter in a free and democratic society\u201d).<\/span> states are empowered to regulate their own elections.175<\/a><\/sup>Burdick v. Takushi, 504 U.S. 428, 433 (1992) (explaining that \u201cvoting is of the most fundamental significance under our constitutional structure,\u201d yet \u201c[s]tates retain the power to regulate their own elections\u201d) (citations omitted).<\/span> The Supreme Court has noted that the U.S. Constitution gives states the authority to:<\/p>\n

provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved . . . . All this is comprised in the subject of \u201ctimes, places and manner of holding elections,\u201d and involves lawmaking in its essential features and most important aspect.<\/em>176<\/a><\/sup>

\nSmiley v. Holm, 285 U.S. 355, 366 (1932); see <\/em>Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 9 (2013) (explaining states\u2019 authority to regulate functions only insofar as federal law does not conflict).<\/span><\/p>\n

Concomitant with the right of states to conduct their own elections is the right of states to choose how to select nominees to appear on general election ballots. For many years, political parties selected their nominees not through state-run primary elections, but rather through their own internal, often murky, party processes. As a report by the National Conference of State Legislators the historical process:<\/p>\n

A century ago, political parties did not select their nominees through primary elections. Instead, parties ran their own processes using their own rules, and hearing from\u2014mostly\u2014party stalwarts, with little role for rank-and-file members. In other words, nominees were selected in the proverbial smoke-filled back room.<\/em><\/p>\n

Half a century ago, primaries were still uncommon. By then, in an effort to be more inclusive, caucuses had largely replaced insider decision-making. At a caucus, the rank-and-file could express support for the candidates of their choice. Still, only highly motivated party members attended caucuses, then or now.<\/p>\n

Over the last few decades, most parties have switched from caucuses to primary elections to select their nominees for general elections. The motivating factor was\u2014again\u2014to permit participation by more party members, continuing a century-long trend.177<\/a><\/sup>

\nPrimaries: More than one way to Find a Party Nomination, NCSL <\/span>(Jan. 19, 2021), https:\/\/www.ncsl.org\/elections-and-campaigns\/primaries-more-than-one-way-to-find-a-party-nominee [https:\/\/perma.cc\/B9LU-PW7C]. <\/span><\/p>\n

Virtually all states now conduct state-run primary elections, but these primaries vary to some degree. Ten states conduct \u201cclosed primaries,\u201d wherein a voter must be a registered member of a political party to vote for that party\u2019s nominee.178<\/a><\/sup>See <\/em>State Primary Election Types, NCSL<\/span> (Feb. 6, 2024), https:\/\/www.ncsl.org\/elections-and-campaigns\/state-primary-election-types [https:\/\/perma.cc\/6K8F-TGFL].<\/span> Nine states have partially closed primaries, wherein political parties choose whether to allow voters not registered with the party to participate in their nominating election.179<\/a><\/sup>Id.<\/em> <\/span> Four states have partially open primaries, which allows voters to vote in any political party primary, although by voting the voter becomes registered with the party who they voted for.180<\/a><\/sup>Id.<\/em><\/span> Seven states allow voters not registered with any party to vote in the party primary of their choice but do not allow voters registered in one party to vote in a different party\u2019s primary.181<\/a><\/sup>Id.<\/em><\/span> Fifteen states have \u201copen primaries,\u201d where voters are free to vote privately for whichever party\u2019s ballot they choose, and they do not become registered with the party whose ballot they choose.182<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Four states have a single primary in which all candidates, regardless of party, appear on a single ballot.183<\/a><\/sup>Id.<\/em><\/span> In California and Washington, each candidate lists their political party on the ballot and the top two vote-getters in each race, regardless of political party, advance to the general election. Nebraska\u2019s elections are similar except the candidates\u2019 political parties are not listed on the ballot. In Alaska, the candidate\u2019s political parties are listed on the ballot and the top four vote-getting candidates proceed to the general election.184<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Louisiana has a unique majority-vote system, with no true primary. If a candidate receives a majority of the votes cast for an office, they win the election outright. If no candidate obtains a majority of votes, a second round of voting is held between the top two vote-getters. Any registered voter can participate in both the first-round and second-round elections.185<\/a><\/sup>Primary Elections in Louisiana<\/em>, Ballotpedia<\/span>, https:\/\/ballotpedia.org\/Primary_elections_in_Louisiana [https:\/\/perma.cc\/8HHU-AU2Q]. <\/span><\/p>\n

2. RCV Has Been Found to Advance Important State Interests<\/em><\/p>\n

As more jurisdictions explore RCV and multi-party primaries, legal challenges have inevitably arisen.186<\/a><\/sup>See, e.g.<\/em>, Minnesota Voters All. v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009); Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011); Baber v. Dunlap, 376 F. Supp. 3d 125, 134 (D. Maine 2018); Maine Republican Party v. Dunlap, 324 F. Supp. 3d 202, 209 (D. Maine 2018); Kohlhaas v. State, 518 P.3d 1095, 1101 (Alaska 2022).<\/span> Courts seek to balance a state\u2019s sovereign right to conduct its elections versus an individual\u2019s constitutional voting rights.187<\/a><\/sup>Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).<\/span> In these legal challenges, courts assess \u201cthe character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate\u201d versus \u201cthe precise interests put forward by the State as justifications for the burden imposed by its rule,\u201d taking into consideration \u201cthe extent to which those interests make it necessary to burden the plaintiff\u2019s rights.\u201d188<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Courts have recognized that every election system in some way impacts the individual\u2019s right to vote.189<\/a><\/sup>Weber v. Shelley, <\/em>347 F.3d 1101, 1106 (9th Cir. 2003); see <\/em>Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Anderson<\/em>, 460 US. at 788) (\u201c[W]hether [a provision of a code] governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects\u2014at least to some degree the individual\u2019s right to vote\u201d).<\/span> For election laws that impose a \u201csevere\u201d burden on voting rights, a strict scrutiny standard is applied in which the law must be \u201cnarrowly drawn to advance a state interest of compelling importance.\u201d190<\/a><\/sup>Norman v. Reed,<\/em> 502 U.S. 279, 289 (1992).<\/span> However, as the Dudum<\/em> court noted, \u201cvoting regulations are rarely subjected to strict scrutiny.\u201d191<\/a><\/sup>Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (citing Lemons v. Bradbury, <\/em>538 F.3d 1098, 1104 (9th Cir. 2008)).<\/span> When the burden is not severe and imposes only reasonable nondiscriminatory restrictions, courts apply a \u201cless exacting review, and a State\u2019s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.\u201d192<\/a><\/sup>Timmons v. Twin Cities Area New Party,<\/em> 520 U.S. 351, 355 (1997) (quoting Burdick<\/em>, 504 U.S. at 434) (internal quotation marks omitted); see also Caruso v. Yamhill Cnty., <\/em>422 F.3d 848, 859 (9th Cir. 2005).<\/span><\/p>\n

General elections are usually conducted via plurality or \u201cfirst-past-the-post\u201d voting\u2014where voters vote for one candidate and the person who receives the most votes wins. However, \u201cfirst-past-the-post\u201d voting is not legally required.193<\/a><\/sup>Baber v. Dunlap, 376 F. Supp. 3d 125, 134 (D. Maine 2018) (\u201cPlaintiffs argue that the force of history calls for the Court to interpret Article I as requiring a plurality or \u2018first-past-the-post\u2019 standard for deciding election results. There is no textual support for this argument and a great deal of historical support to undermine it\u201d).<\/span> Courts that analyze RCV laws must examine whether these RCV laws advance \u201cimportant regulatory state interests.\u201d194<\/a><\/sup>Dudum<\/em>, 640 F.3d at 1114 (citations omitted).<\/span> In Dudum<\/em>, the court found that \u201cthe three-candidate restriction furthers important interests in maintaining the orderly administration of San Francisco\u2019s elections and in avoiding voter confusion.\u201d195<\/a><\/sup>Id.<\/em> at 1115.<\/span> The court also found that San Francisco\u2019s RCV system would save the City from having to conduct further runoff elections, which cost between $1.5 and $3 million and, \u201c[t]he interest in alleviating the costs and administrative burdens of conducting additional elections can be \u2018a legitimate state objective.\u2019\u201d196<\/a><\/sup>Id. <\/em>at 1116.<\/span> The court further found a legitimate state interest in, \u201cproviding voters an opportunity to express nuanced voting preferences and electing candidates with strong plurality support.\u201d197<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In Maine Republican Party<\/em>, the court found that the following interests were \u201crational and survive constitutional scrutiny:\u201d198<\/a><\/sup>Maine Republican Party v. Dunlap, 324 F. Supp. 3d 202, 212\u201313 (D. Maine 2018).<\/span><\/p>\n

(1) conducting statewide elections in an orderly manner, and in preserving the integrity and reliability of the electoral process; and (2) establishing a uniform set of rules governing the process of casting and counting ballots at the primary election for all parties in order to assure consistency and uniformity of election administration by all officials involved\u2026 the State [also] has a legitimate regulatory interest in requiring that candidates demonstrate a preliminary showing of substantial support to qualify to appear on the general election ballot.<\/em>199<\/a><\/sup>

\nId.<\/em><\/span><\/p>\n

In Kohlhaas<\/em>, the Alaska Supreme Court found the following to be legitimate state interests in support of RCV:200<\/a><\/sup>Kohlhaas v. State, 518 P.3d 1095, 1124 (Alaska 2022).<\/span><\/p>\n

A ranked-choice voting system will help ensure that the values of elected officials more broadly reflect the values of the electorate, mitigate the likelihood that a candidate who is disapproved by a majority of voters will get elected, encourage candidates to appeal to a broader section of the electorate, allow Alaskans to vote for the candidates that most accurately reflect their values without risking the election of those candidates that least accurately reflect their values, encourage greater third-party and independent participation in elections, and provide a stronger mandate for winning candidates.<\/em><\/p>\n

The State\u2019s interests in allowing voters to express more nuanced preferences through their votes and to elect candidates with strong plurality support are important and legitimate regulatory interests.201<\/a><\/sup>

\nId. <\/em>(citations omitted).<\/span><\/p>\n

Since several courts, as noted above, have found that RCV advances a variety of important state interests, this validates the constitutionality of RCV.<\/p>\n

3. RCV Upholds the Guarantee of \u201cOne Person, One Vote\u201d<\/em><\/p>\n

The Equal Protection Clause202<\/a><\/sup>U.S. Const.<\/span> Amend. XIV, \u00a7 1.<\/span> guarantees that American citizens have \u201ca constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction,\u201d which generates the doctrine of \u201cone person, one vote.\u201d203<\/a><\/sup>Dunn v. Blumstein, <\/em>405 U.<\/em>S. 330, 336 (1972). The Supreme Court has articulated that the Equal Protection Clause is violated when an election is held that \u201cimpairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters.\u201d Johnson v. De Grandy, <\/em>512 U.S. 997, 1007 (1994) (applying Section 2 of the Voting Rights Act); see also Hunter v. Erickson, 393 U.S. 385 (1969)<\/em>.<\/span> Courts across the nation have found that RCV does not violate the principle of \u201cone-person, one-vote.\u201d204<\/a><\/sup>The Fourteenth Amendment\u2019s guarantee of equal protection of the laws means that a \u201c[s]tate may not, by\u2026arbitrary and disparate treatment, value one person\u2019s vote over that of another.\u201d Bush v. Gore, 531 U.S. 98, 104 (2000) (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)).<\/span> In Dudum<\/em>, the plaintiffs argued that under RCV, \u201csome voters are literally allowed more than one vote (i.e., they may cast votes for their first-, second-, and third-choice candidates), while others are not.\u201d205<\/a><\/sup>Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011).<\/span> The plaintiffs argued that this resulted in a \u201cdilution of certain votes\u201d as \u201csome voters\u2014those who vote for continuing candidates\u2014only have one vote counted in \u2018the election\u2019; other voters, however, have votes counted for three different candidates\u201d and this violated the equal protection guarantee of \u201cone person, one vote.\u201d206<\/a><\/sup>Id.<\/em> at 1112.<\/span> The court rejected this argument:<\/p>\n

[T]he option to rank multiple <\/em>preferences is not the same as providing additional <\/em>votes, or more heavily-weighted votes, relative to other votes cast. Each ballot is counted as no more than one vote at each tabulation step, whether representing the voters\u2019 first-choice candidate or the voters\u2019 second- or third-choice candidate, and each vote attributed to a candidate, whether a first-, second- or third-rank choice, is afforded the same mathematical weight in the election. The ability to rank multiple candidates simply provides a chance to have several preferences recorded and counted <\/em>sequentially, not at once.<\/em>207<\/a><\/sup>Id.<\/em> at 1113.<\/span><\/p>\n

The plaintiffs in Dudum<\/em> contended that the treatment of \u201cexhausted\u201d ballots as the votes were counted effectively prohibited certain voters from voting in an election, and therefore imposed a severe burden on voters\u2019 constitutional rights.208<\/a><\/sup>Id.<\/em> at 1107.<\/span> The court rejected this argument too, stating, \u201c[i]n actuality, all voters participating in a restricted IRV election are afforded a single and equal opportunity to express their preferences for three candidates; voters can use all three preferences, or fewer if they choose. Most notably, once the polls close and calculations begin, no new votes<\/em> are cast.\u201d209<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Similarly, in Baber<\/em>, the plaintiffs contended that Maine\u2019s RCV elections violated the Equal Protection Clause by allowing those voters who voted for the candidates in a federal congressional election who were eliminated in the initial rounds of ballot counting to effectively vote multiple times.210<\/a><\/sup>Baber v. Dunlap, 376 F.Supp.3d 125, 139 (D. Maine 2018).<\/span> The federal district court rejected this challenge, opining that \u201cone person, one vote does not stand in opposition to ranked balloting so long as all electors are treated equally at the ballot.\u201d211<\/a><\/sup>Id. <\/em>at 140 (citing Hadley v. Jr. Coll. Dist. of Metro. Kansas City, 397 U.S.<\/em> 50, 56 (1970)) (\u201c[A]s a general rule, whenever a state or local government decides to select persons by popular election\u2026the Equal Protection Clause\u2026requires that each qualified voter must be given an equal opportunity to participate in that election, and\u2026each district must be established [so] that equal numbers of voters can vote for proportionally equal numbers of officials\u201d).<\/span> The court noted that the plaintiffs \u201cparticipated fully in the election\u201d212<\/a><\/sup>Id.<\/em> at 141.<\/span> and that \u201cPlaintiffs have not demonstrated that their votes received less weight. They understood that a majority victory was the standard to avoid a second round of ballot counting.\u201d213<\/a><\/sup>Id.<\/em> at 140\u201341.<\/span><\/p>\n

The Minnesota Supreme Court likewise rejected a claim that the City of Minneapolis\u2019 RCV system violated the one-person, one-vote principle.214<\/a><\/sup>Minnesota Voters All. v. City of Minneapolis, 766 N.W.2d 683, 698 (Minn. 2009).<\/span> The plaintiffs there claimed that those voters whose first-choice candidates were eliminated were able to vote multiple times.215<\/a><\/sup>Id.<\/em> at 690.<\/span> The court denied this claim, stating, \u201cEvery voter has the same opportunity to rank candidates when she casts her ballot, and in each round every voter\u2019s vote carries the same value.\u201d216<\/a><\/sup>Id.<\/em> at 693.<\/span> The court further stated that the one-person, one-vote principle had its origins in redistricting cases and that, \u201c[n]o such vote inequality is created by IRV.\u201d217<\/a><\/sup>Id.<\/em> at 698.<\/span><\/p>\n

While opponents of RCV have argued that RCV violates the one-person, one-vote principle, these cases make clear that such arguments are misplaced. The one-person, one-vote principle does not give some voters more than one vote. Rather, as discussed above, all voters are given the exact same opportunity to rank their candidate choices.<\/p>\n

4. RCV Does Not Infringe on Political Parties\u2019 Freedom of Association Rights Under the First Amendment<\/em><\/p>\n

RCV does not violate First Amendment speech or association rights. The U.S. Supreme Court has observed the \u201cspecial place the First Amendment reserves for, and the special protection it accords, the process by which a political party \u2018select[s] a standard bearer who best represents the party\u2019s ideologies and preferences.\u2019\u201d218<\/a><\/sup>Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453 (2008) (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000)).<\/span> That said, political parties do not have a right to a State-run nominating process.219<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In Maine Republican Party v. Dunlap<\/em>, the Maine Republican Party alleged that Maine\u2019s RCV system severely burdened its freedom of association by changing the way the Maine Republican Party selected candidates to a mandated RCV system.220<\/a><\/sup>Maine Republican Party v. Dunlap, 324 F. Supp. 3d 202, 209 (D. Maine 2018).<\/span> The court observed that U.S. Supreme Court cases that found violations of political party association rights were \u201climited to regulations that severely impair a political party\u2019s ability to function as a party composed of voters who share a common platform and beliefs because the regulations unduly restrict or expand the pool of voters given a voice in the party\u2019s primary elections.\u201d221<\/a><\/sup>Id. <\/em>at 210.<\/span> The court concluded, \u201c[t]he RCV Act has no similar effect.\u201d222<\/a><\/sup>Id.<\/em><\/span> The court found that \u201cthe RCV Act does not interfere with the internal governance or processes of the Maine Republican Party.\u201d223<\/a><\/sup>Id. <\/em><\/span><\/p>\n

The Maine Republican Party further argued that the \u201cRCV Act\u2019s effect on the selection of the Party\u2019s nominees interferes with its internal governance.\u201d224<\/a><\/sup>Id.<\/em> at 210.<\/span> The court noted the Maine Republican Party was free to change its rules to the extent the RCV system had any impact on its internal governance.225<\/a><\/sup>See<\/em> id.<\/em> at 211.<\/span> The Court also noted that, \u201cBecause the remedy to this potential consequence of the RCV Act is in the Party\u2019s control, any burden the RCV Act places on the regulation\u2019s effect is primarily external, it is unlikely to impose a severe burden on a party\u2019s associational rights.\u201d226<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In Kohlhaas<\/em>, the plaintiffs alleged that Alaska\u2019s open primary and RCV system violated speech rights under the United States and Alaska Constitutions by \u201cweakening political parties\u2019 ability to select candidates for the general election and by allowing candidates to identify their party affiliation on the ballot without regard to whether the party had nominated or endorsed them.\u201d227<\/a><\/sup>Kohlhaas v. State, 518 P. 3d 1095, 1103 (Alaska 2022).<\/span> The Alaska Supreme Court rejected this argument, finding that Alaska\u2019s RCV system effectively gave political parties greater<\/em> freedom.228<\/a><\/sup>See<\/em> id.<\/em> at 1108 (\u201cPreviously, political parties were forced to hold a primary election under rules passed by the legislature and administered by the Division of Elections. Now they can select their preferred candidate through whatever mechanism they desire and are under no obligation to allow participation by voters they do not want. If a political party would like to choose the candidate that best represents its platform by primary election, caucus, or straw poll, it is entirely free to do so. The party can then throw whatever support it can muster behind that candidate\u2019s election bid. The parties\u2019 nomination process stands apart from the primary election, which serves merely to winnow the field of candidates to a manageable number for the general election\u201d) (internal citations omitted). <\/span> Whereas under Alaska\u2019s former primary system, political parties were forced by state legislation regarding primaries to choose their standard bearers via a state-run primary election governed by legislation and administered by the state Division of Elections, under the Alaska Model political parties were now unconstrained and free to choose their standard bearers by straw poll, caucus, or whatever means they wish.229<\/a><\/sup>See<\/em> id.<\/em><\/span> The Alaska Model simply removed the State from involvement in the process by which political parties select the candidates they wish to support. Moreover, political parties are free to allow whichever voters they choose to participate in this selection process.230<\/a><\/sup>See<\/em> id.<\/em><\/span> Having freely selected the candidate or candidates the parties believe best represent their values, the parties are free to support their chosen candidate or candidates and throw whatever support they desire in the open primary election and general election. The nonpartisan open primary \u201cplaces no burden on political parties\u2019 associational rights precisely because it decouples the State\u2019s election system from political parties\u2019 process of selecting their standard bearers.\u201d231<\/a><\/sup>Id.<\/em><\/span> The Kohlhaas<\/em> plaintiffs further alleged:<\/p>\n

[A]llowing candidates to designate a party on the ballot violates political parties\u2019 associational rights because it \u201cforce[s] the political parties to accept those candidates that they may or may not want\u2026and allows the candidates to identify themselves (truthfully or falsely) or hide their beliefs.\u201d Kohlhaas also faults Initiative 2 for not allowing the parties to indicate their nominees on the ballot. These rules, Kohlhaas argues, will result in forced association: Voters, seeing on the ballot that a candidate is registered with a particular political party, will believe that the party supports that candidate, and that the candidate supports that party\u2019s platform.<\/em>232<\/a><\/sup>

\nId.<\/em> at 1109.<\/span><\/p>\n

The court rejected this argument:<\/p>\n

Kohlhaas\u2019s assertion that a candidate can lie about party affiliation on the ballot is incorrect. A candidate may appear on the ballot as affiliated with a political party only if that candidate truly has registered with the Division of Elections as affiliated with that party. The ballot and polling places must include a disclaimer explaining that these designations mean \u201conly that the candidate is registered as affiliated with the political party.\u201d A candidate who is registered with one party can choose to be designated as nonpartisan or undeclared, but may not be listed on the ballot as registered with another party. Candidates not registered with a political party may be designated only as nonpartisan or undeclared. Thus, candidates cannot lie about being affiliated with a particular party.<\/em>233<\/a><\/sup>

\nId.<\/em> (internal citation omitted).<\/span><\/p>\n

The court then noted, \u201cJust as the U.S. Supreme Court emphasized in Washington State Grange<\/em> its \u2018faith in the ability of individual voters to inform themselves about campaign issues,\u2019 we have also recognized that Alaska voters are not easily fooled.\u201d234<\/a><\/sup>Id.<\/em> at 1110.<\/span><\/p>\n

5. Courts have Generally Rejected Arguments that RCV Violates Various State Constitutional Plurality Vote Provisions Requirements<\/em><\/p>\n

Several courts have addressed the issue regarding whether RCV violates various state constitutions that require the winner of an election to receive a plurality of votes.235<\/a><\/sup>See, e.g.<\/em>, Moore v. Election Comm\u2019rs, 35 N.E.2d 222, 229 (Mass. 1941); Op. of the Justices, 162 A.3d 188, 211 (Maine 2017); Kohlhaas<\/em>, 518 P.3d at 1118\u201319.<\/span> The majority of states have some form of plurality provision in their constitution:<\/p>\n

The constitutions of thirty-nine states and Puerto Rico include some form of a \u201cplurality\u201d provision. Such provisions state that the candidate who receives \u201cthe highest number of votes,\u201d \u201cthe largest number of votes,\u201d \u201cthe greatest number of votes,\u201d or \u201ca plurality of the votes\u201d at the general election shall be elected.<\/em>236<\/a><\/sup>

\nPildes & Parsons, supra<\/em> note 169, at 1788 (citations omitted).<\/span><\/p>\n

In Moore v. Election Commissioners of Cambridge<\/em>, a Cambridge, Massachusetts voter challenged the city of Cambridge\u2019s adoption of a preferential voting system for its municipal elections where \u201ceach voter, though entitled to have only a vote for one candidate counted, [was] entitled to express as many relative choices or preferences as he [saw] fit.\u201d237<\/a><\/sup>Moore<\/em>, 35 N.E.2d at 229.<\/span> If a vote was not counted for the candidate of the voter\u2019s first choice, it would be \u201ccounted for another candidate for whom he has expressed a choice, in the order of preference shown by him upon his ballot.\u201d238<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The Massachusetts Constitution requires that \u201cthe person having the highest number of votes shall be deemed and declared to be elected,\u201d239<\/a><\/sup>Mass. Const.<\/span> Art. XIV.<\/span> but the court noted this provision was not challenged and did not apply to this office. Nonetheless, the court analyzed the plurality issue and found that the \u201ccandidates receiving the largest numbers of effective votes counted in accordance with the plan<\/em> are elected, as would be true in ordinary plurality voting.\u201d240<\/a><\/sup>Moore<\/em>, 35 N.E.2d at 226, 238 (emphasis added).<\/span> The Massachusetts Supreme Judicial Court concluded, \u201cpreferential voting is fully \u2018in accordance with the principle of plurality voting.\u2019\u201d241<\/a><\/sup>Id.<\/em> at 238.<\/span><\/p>\n

Maine\u2019s RCV system has been the subject of multiple court challenges. In November 2016, the citizens of Maine enacted by initiative a system of RCV.242<\/a><\/sup>See generally<\/em> Question 5, Maine Ranked Choice Voting Initiative (2016)<\/em>, Ballotpedia<\/span>, https:\/\/ballotpedia.org\/Maine_Question_5,_Ranked-Choice_Voting_Initiative (2016) [https:\/\/perma.cc\/2TLP-L7TP].<\/span> In a non-binding advisory opinion requested several months later by the Maine State Senate,243<\/a><\/sup>See generally <\/em>S. Order, Requesting an Opinion of the Justices of the Supreme Judicial Court Regarding an Initiated Bill, 128th Leg., 1st Reg. Sess. (Maine 2017).<\/span> the Maine Supreme Judicial Court advised that the RCV system violated the language in the state constitution, which required that its governor and legislators be elected by a \u201cplurality\u201d of votes cast.244<\/a><\/sup>See <\/em>Op. of the Justices, 162 A.3d 188, 211 (Maine 2017).<\/span> The court opined that the election of certain state officials by a \u201cplurality\u201d of votes cast in the general election implied that second-round runoffs, whether done instantly or at a later date, violated Maine\u2019s constitution.245<\/a><\/sup>See id.<\/em><\/span><\/p>\n

As a result, Maine\u2019s RCV system does not apply to general elections for those state offices:<\/p>\n

Although the opinion was only advisory, it set in motion a series of legislative decisions, legal challenges, and popular action that culminated in the patchwork statutory settlement currently in place: RCV is used for federal and state offices in primary<\/em> elections, but for federal offices only in general <\/em>elections. That distinction reflects the scope of the constitution\u2019s plurality provision, which applies only to general elections for state offices.<\/em>246<\/a><\/sup>

\nPildes & Parsons, supra<\/em> note 169, at 1812 (citations omitted) (emphasis in original).<\/span><\/p>\n

This Maine decision has been the subject of both academic and judicial criticism. In an exhaustive analysis of RCV, the authors of a California Law Review<\/em> article stated:<\/p>\n

The Opinion of the Justices<\/em> is as concise as it is cryptic. Of its seventy-two paragraphs, most are spent analyzing whether it would be appropriate for the Justices to provide an advisory opinion at all. The merits of the \u201cplurality\u201d question occupy only nine paragraphs, and the Justices\u2019 substantive interpretation occurs in only two\u2026<\/p>\n

The most fundamental defect in this remarkably brief analysis is that the Justices simply treat, without any analysis or justification, an elector\u2019s \u00acfirst-preference ranking as that elector\u2019s constitutional \u201cvote.\u201d As a formal doctrinal matter, that is at odds with the ranked-choice voting statute. Surprisingly, the decision does not discuss the contrary conclusion of Massachusetts\u2019s highest court, which had found RCV not to violate similar provisions in that state\u2019s constitution, despite the briefs bringing that decision to the attention of the Maine court.<\/p>\n

Unlike the Moore <\/em>opinion, which correctly recognized that a voter\u2019s preference ranking cannot be translated into an \u201ceffective vote\u201d until it has been \u201ccounted in accordance with\u201d the ranked-choice tabulation process, the Maine advisory opinion treated the voters\u2019 first-choice rankings as their \u201cvote,\u201d even though the legislation made it clear that this was not so. In effect, the Justices sever the ranked-choice tabulation into pieces, treat the first step in that tabulation as a freestanding election, and regard RCV ballots as if they are SCV ballots with superfluous marginalia.247<\/a><\/sup>Id. <\/em>at 1812\u201314.<\/span><\/p>\n

The analysis in Opinion of the Justices<\/em> was also recently rejected by the Alaska Supreme Court.248<\/a><\/sup>See<\/em> Kohlhaas v. State, 518 P.3d 1095, 1120\u201321 (Alaska 2022) (citations omitted).<\/span> In Kohlhaas<\/em>, the plaintiffs alleged the adoption of RCV violated the Alaska Constitution by requiring the winner receive a \u201cmajority\u201d of votes, when the Alaska Constitution instead states the candidate \u201creceiving the greatest number of votes\u201d shall be governor.249<\/a><\/sup>Id.<\/em> at 1118. <\/span> After walking through a hypothetical ballot counting analysis, the Alaska Supreme Court rejected the plaintiff\u2019s argument, finding that a majority of total votes was not required to win an election, \u201ca successful candidate can win the election with less than half of the total votes cast even though the candidate receives more than half of the votes counted in the final round of tabulation.\u201d250<\/a><\/sup>Id.<\/em> at 1119\u201320.<\/span><\/p>\n

The plaintiffs in Kohlhaas<\/em> also argued that \u201cbecause the candidate who receives the greatest number of first-choice votes does not automatically win the election and may ultimately lose after second-and third-choice votes are tallied, ranked-choice voting unconstitutionally denies victory to the candidate who received \u2018the greatest number of votes.\u2019\u201d251<\/a><\/sup>Id.<\/em> at 1118.<\/span> The court noted that this argument was similar to the argument accepted in the advisory opinion by the Maine Supreme Judicial Court.252<\/a><\/sup>See<\/em> id. <\/em>at 1120\u201321 (citing Op. of the Justices, 162 A.3d 188, 211 (Maine 2017)).<\/span> However, the Alaska Supreme Court rejected this argument, stating that:<\/p>\n

According to both states\u2019 ranked-choice voting laws, the vote count is not complete until the final round of tabulation. Yet the Maine Supreme Judicial Court treated the result obtained after the first round of counting as if it were final, without pointing to any text in its constitution that requires votes to be counted in that way or that limits the way a vote can be cast or expressed. The court discussed at length the history of the Maine constitution\u2019s plurality provision and the state\u2019s history of failed elections but did not explain how ranked-choice voting is any more likely to result in a failed election than single-choice voting. The court\u2019s failure to pinpoint constitutional text, structure, or policies inconsistent with ranked-choice voting leaves us unconvinced by its analysis.<\/em>253<\/a><\/sup>

\nId.<\/em> at 1121 (citations omitted).<\/span><\/p>\n

The Alaska court found the analysis of the Ninth Circuit Court of Appeals in Dudum v. Arntz <\/em>to be more persuasive.254<\/a><\/sup>See id.<\/em>; see generally<\/em> Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011).<\/span> The Dudum<\/em> court stated:<\/p>\n

In actuality, all voters participating in a restricted IRV election are afforded a single and equal opportunity to express their preferences for three candidates; voters can use all three preferences, or fewer if they choose. Most notably, once the polls close and calculations begin, no new votes<\/em> are cast. To determine the winner of the election based on that single set of votes cast, restricted IRV uses an algorithm. The ballots, each representing three or fewer preferences, are the initial inputs; the sequence of calculations mandated by restricted IRV is used to arrive at a single output\u2014one winning candidate.<\/em>255<\/a><\/sup>

\nDudum<\/em>, 640 F.3d at 1107 (emphasis in original) (citation omitted).<\/span><\/p>\n

The court concluded that \u201c[t]he series of calculations required by the algorithm to produce the winning candidate are simply steps of a single tabulation, not separate rounds of voting.\u201d256<\/a><\/sup>Id.<\/em><\/span> The Kohlhaas<\/em> court accordingly rejected the argument that RCV violated the Alaska constitutional provision that the candidate \u201creceiving the greatest number of votes\u201d shall be elected.257<\/a><\/sup>Kohlhaas<\/em>, 518 P.3d at 1120\u201323.<\/span><\/p>\n

F. Alaska Demonstrates that RCV Reflects the Will of the Constituency<\/em><\/p>\n

The Alaska Model of open primaries leading to top-four RCV general elections offers voters greater choices in both primary and general elections, giving diverse voters a greater voice in the democratic process. Whereas in single choice elections that include a typical party primary, in very partisan districts the winner of the primary election typically goes on to win the general election with little effort or debate. Thus, very liberal districts tend to elect the more liberal candidate in a primary – with that candidate a virtual lock to win the general election. Conversely, very conservative districts tend to elect the more conservative candidate in the primary- who then proceeds to trounce any opposition candidate in the general. Thus, in closed, partisan primaries, with lower voter turnout in primary elections, the inevitable outcome in a highly partisan district is often that a tiny fraction of the electorate elects the winner of the general election during the primary.<\/p>\n

By switching to open primary elections and having the top four vote getters of any (or no) party move to the general election, the Alaska Model changes all of this and offers the potential for much more competitive general elections. This quickly became evident in Alaska\u2019s 2022 election. While many races were unaffected by RCV, with only a single Republican and a single Democrat running in a number of districts, in some of the more partisan districts multiple members of the same party ran against each other. In previous years these elections would have effectively been decided in the primary election. But under RCV, multiple candidates of the same party moved to the general election, allowing for a more robust debate and providing a greater number of citizens the right to choose among various candidates whose platforms and views were more varied or nuanced. This is a key feature of the Alaska Model\u2014it pushes the real competition from the primary to the general election, when more voters are participating.<\/p>\n

Moreover, RCV inevitably leads to more coalition building as candidates in even highly partisan districts often seek to broaden their support in the general election by appealing to less partisan voters or voters of various interest groups.<\/p>\n

Whereas in the past, candidates in partisan races were often chosen by a small group of partisan primary voters, under the Alaska Model, candidates must finish in the top four of the whole electorate, not just fellow partisans. Instead of adhering to a doctrinaire political party platform, candidates can appeal to voters across a wider political spectrum. Since Alaska voters adopted the Alaska Model in 2020, it has been used twice: once in a special primary and special general election to replace deceased U.S. House member, Don Young, and once in the regular 2022 election cycle. While the data is limited to these two elections, it appears that the new system resulted in a greater diversity of choices for voters in the general election and increased voter participation in the primary. Moreover, the limited data and public comments that do exist support the notion that RCV was simple to use, is supported by diverse communities, and has led to more robust elections and debate.<\/p>\n

The 2022 general election ballot offered Alaskans a greater diversity of candidates than in previous general elections. While the historic number of candidates running for U.S. Congress is certainly largely due to the vacancy caused by the death of longtime Congressman Don Young, legislative races also showed a significant increase in number of candidates compared to previous elections. Forty-five State Senate candidates appeared on general election ballots as well as ninety-one candidates for State House, compared to only thirty-five State Senate candidates and sixty-eight House candidates in 2012. The 2022 general election ballot featured ten State Senate races and eighteen State House races with more than one candidate from the same political party, where under the old system only one candidate from each party would have advanced to the primary. In five State Senate races and eight State House races, only candidates from one party were running, meaning that the under the previous system of party primaries a single candidate would have run unopposed in the general but under the Alaska Model competitiveness increased and general election voters were able to choose from more than one candidate.<\/p>\n

Several professional analyses of RCV results in Alaska and other jurisdictions provide empirical evidence that RCV leads to greater representation for diverse communities. An analysis by the Sightline Institute found that the Alaska Model increased political diversity in the Alaska Legislature, concluding that \u201c[t]he new system, more than any other factor, was the most obvious game-changer for political diversity in the Alaska legislature.\u201d258<\/a><\/sup>Jeannette Lee, A Fairer Election System in Alaska Helped More Independents Win Office<\/em>, Sightline Institute<\/span> (May 23, 2023), https:\/\/www.sightline.org\/2023\/05\/22\/a-fairer-election-system-in-alaska-helped-more-independents-win-office\/ [https:\/\/perma.cc\/7GBH-8DUY].<\/span> This report also concluded that age, racial, and gender diversity also increased but that not enough data was available to say whether the new election system was the cause. An analysis of RCV elections across the country by RepresentWomen similarly found that RCV increases representation of women in government.259<\/a><\/sup>See<\/em> Memorandum from Courtney Lamendola, Marvelous Maeze & Steph Scaglia to Interested Parties, Ranked Choice Voting and Women\u2019s Representation<\/em>, RepresentWomen<\/span> (Jan. 2023), https:\/\/representwomen.app.box.com\/s\/jzs9ycq8i3oo3torozy62vprl0w066vo [https:\/\/perma.cc\/6NM2-XC3U].<\/span><\/p>\n

An analysis conducted by Get Out the Native Vote, an organization focused on increasing electoral participation by Alaska Natives, and the Ship Creek Group, an Anchorage-based consulting firm, found that \u201cvoting preferences of predominantly Alaska Native communities are disproportionately inhibited under partisan primaries.\u201d260<\/a><\/sup>GOTNV, supra<\/em> note 89, at 13.<\/span> This report showed that in the 2022 primary election, forty-nine percent of all voters cast votes for candidates from different parties, which would have been impossible under the previous system where voters had to choose a single primary ballot and 79.9% of voters in predominately Alaska Native precincts cast such crossover votes.261<\/a><\/sup>Id. <\/em>at 15.<\/span> Voter turnout in the 2022 primary was 32.16%, up significantly from the 20.42% turnout in the previous gubernatorial election in 2018, likely in large part due to the greater choice offered voters by the new system.262<\/a><\/sup>Compare<\/em> State of Alaska 2022 Primary Election, Election Summary Report<\/em> (Sept. 2, 2022), https:\/\/www.elections.alaska.gov\/results\/22PRIM\/ElectionSummaryReportRPT.pdf [https:\/\/perma.cc\/V2X3-8LUA] (demonstrating 32.16% voter turnout), with<\/em> State of Alaska 2018 Primary Election, Election Summary Report <\/em> (Sept. 4, 2018), https:\/\/www.elections.alaska.gov\/results\/18PRIM\/data\/results.htm [https:\/\/perma.cc\/2BVX-BB6W] (demonstrating 20.42% voter turnout). It is possible that Alaska\u2019s voter turnout rates can appear artificially low when compared to other states, since under a ballot initiative passed in 2016, Alaska automatically registers applicants for the Permanent Fund Dividend to vote unless they opt out. See<\/em> Alaska Voter Registration via the Permanent Fund Dividend Application, Ballot Measure 1 <\/em>(2016), Ballotpedia<\/span>, https:\/\/ballotpedia.org\/Alaska_Voter_Registration_via_the_Permanent_Fund_Dividend_Application,_Ballot_Measure_1 (2016) [https:\/\/perma.cc\/D3XD-EY59].<\/span><\/p>\n

The increased choice of general election candidates highlights how the Alaska Model solves problems inherent to the top two open primary system used in Washington, California, and Nebraska. Under the Washington and California systems, the primary functions similar to Alaska\u2019s but only the top two candidates advance to the general election which is decided under the first-past-the-post system.263<\/a><\/sup>See<\/em> Top-Two Primary<\/em>, Ballotpedia<\/span>, https:\/\/ballotpedia.org\/Top-two_primary [https:\/\/perma.cc\/EN8P-8KPC].<\/span> With only two candidates advancing, it is more likely that only candidates from one party will advance to the general election, and one study showed that voters are twenty percent more likely to simply not vote in a race when no candidates from their preferred party advance to the general election.264<\/a><\/sup>Colin Fisk, No Republican, No Vote: Undervoting and Consequences of the Top-Two Primary System<\/em>, 20 State Politics & Pol\u2019y Q.<\/span> 292, 300 (Sept. 20, 2020).<\/span> Under the Alaska Model, single party general elections only occur when no other candidates run or candidates from one party are able to completely sweep the top four positions in the primary, making this a better system for ensuring that voters across the political spectrum are engaged in the general election.<\/p>\n

While it is suggested that some voters, especially members of minority communities might find RCV confusing, data from the 2022 election cycle shows this was not the case. Leading up to the first RCV election cycle in 2022, the Alaska Division of Elections, the media and various interest groups undertook an exhaustive effort to educate Alaskans about RCV.265<\/a><\/sup>See<\/em> Ranked Choice Voting Education Campaign Launches with Mock Elections Today<\/em>, State of Alaska Division of Elections, (June 1, 2021), https:\/\/www.elections.alaska.gov\/ranked-choice-voting-education-campaign-launches-with-mock-elections-today\/ [https:\/\/perma.cc\/9YUV-ZVJN].<\/span> These efforts appear to have succeeded as an exit poll conducted by Patinkin Research in the November 2022 general election found that ninety-two percent of Alaskans reported receiving instructions on how to rank their choices. At least eighty-seven percent of respondents across all major ethnicities\u2014including Alaska Native, Black, Latino, and Asian\/Hawaiian voters\u2014received instructions.266<\/a><\/sup>Press Release, Alaskans for Better Elections, Polling Shows Alaskan Voters Received Clear Instructions on the System, Found Ranking to be \u201cSimple,\u201d and saw more Competitive Races (Nov. 15, 2022), https:\/\/www.alaskansforbetterelections.com\/polling-shows-alaskan-voters-received-clear-instructions-on-the-system-found-ranking-to-be-simple-and-saw-more-competitive-races\/ [https:\/\/perma.cc\/TTA6-PG2J] (providing Patinkin Research Strategies exit poll results on Alaska\u2019s second use of RCV in a regular general election).<\/span> The poll showed that RCV did not prove to be complex and confusing, as some opponents had suggested. To the contrary, seventy-nine percent of Alaskans reported RCV to be \u201csimple\u201d with at least seventy-eight percent of respondents across all major ethnicities\u2014including Alaska Native, Black, Latino, and Asian\/Hawaiian voters\u2014saying it was simple. Sixty percent of Alaskans reported that state and local elections were more competitive compared to previous years with sixty percent of self-identified Republicans and sixty-eight percent of self-identified Democrats agreeing with this assessment. This is not surprising when one considers how RCV fundamentally impacts elections.<\/p>\n

G. The Alaska Model is a Testament to the Merits of RCV<\/em><\/p>\n

Freed from the shackles of partisan politicking and bickering, it is perhaps not surprising that after Alaska\u2019s first RCV election the Alaska State Senate organized in a bipartisan coalition with all nine elected Democrats joining eight Republicans to form a seventeen to three majority with shared leadership and committee chairs.267<\/a><\/sup>E.g.<\/em>, Yareth Rosen, In New Bipartisan Alaska Senate Majority of 17, Members Vow Compromise and Consensus<\/em>, Alaska Beacon<\/span> (Nov. 29, 2022), https:\/\/alaskapublic.org\/2022\/11\/29\/in-new-bipartisan-alaska-senate-majority-of-17-members-vow-compromise-and-consensus\/ [https:\/\/perma.cc\/A3PV-B4VW].<\/span> While bipartisan coalitions are not that unusual in Alaska268<\/a><\/sup>Over the years, in both House and Senate, bipartisan majorities have organized, commonly with a few Democratic legislators joining a Republican-led majority. Usually these members represent rural Alaska; Representatives and Senators from these areas recognize the political benefits of joining a majority coalition in terms of securing beneficial positions and funding. In the Alaska Senate, the most recent large coalition majorities have existed in 2007\u20132012 and 2023\u20132024.<\/span>, given the extreme partisanship that has engulfed the nation in recent years it does provide another data point about the impact of RCV.
The success of the Alaska Model of open primaries and ranked-choice general elections is reflected by the support it has received from leading Alaska Native organizations. In October 2023, nearly one year after the first RCV election in Alaska, the Alaska Federation of Natives (\u201cAFN\u201d), Alaska\u2019s largest native organization, representing 160 Tribes, 154 corporations, and ten consortiums endorsed the preservation of the open primary and ranked-choice voting system during AFN\u2019s annual convention.269<\/a><\/sup>2023 Annual AFN Convention Resolutions<\/em>, Alaska Federation of Natives 2 (Oct. 2023), https:\/\/nativefederation.org\/wp-content\/uploads\/2023\/10\/2023-AFN-Convention-Resolution.pdf [https:\/\/perma.cc\/Y5SC-SLQN].<\/span> This is particularly significant since Alaska Natives are Alaska\u2019s largest ethnic minority group with 21.9% of Alaska\u2019s population identifying as Alaska Native or American Indian.270<\/a><\/sup>International Association for Indigenous Aging, American Indians and Alaska Natives: Key Demographics and Characteristics<\/em>, National Council on Aging<\/span> (Jan. 10, 2023), https:\/\/www.ncoa.org\/article\/american-indians-and-alaska-natives-key-demographics-and-characteristics\/ [https:\/\/perma.cc\/53TS-P294].<\/span> Joe Nelson, AFN Co-Chair at the time, said:<\/p>\n

Given the polarization in the country, Alaskans cannot afford to merely preserve the non-partisan open primary and ranked-choice voting model. . . . We have an obligation to lead a movement. Our current elections law will help restore confidence in our electoral system by creating a lane that allows politicians to become public servants\u2013in service of all Alaskans.<\/em>271<\/a><\/sup>

\nPress Release, Alaskans for Better Elections & Alaska Federation of Natives, Alaska Federation of Natives Endorses Preservation of Open Primaries and Ranked Choice Voting<\/em> (Oct. 23, 2023), https:\/\/www.alaskansforbetterelections.com\/wp-content\/uploads\/2023\/10\/20231021_AFN-Resolution.pdf [https:\/\/perma.cc\/SPD8-A5ER].<\/span><\/p>\n

The Alaska Native Brotherhood and Alaska Native Sisterhood Grand Camp (ANB and ANS), the world\u2019s oldest indigenous rights organization, endorsed the preservation of Alaska\u2019s open primary and RCV system.272<\/a><\/sup>Oppose the Repeal of State of Alaska Rank Choice Voting<\/em>, Alaska Native Brotherhood & Alaska Native Sisterhood Grand Camp, https:\/\/www.alaskansforbetterelections.com\/wp-content\/uploads\/2023\/11\/23-01-Oppose-the-Repeal-of-AK-Rank-Choice-Voting.pdf. [https:\/\/perma.cc\/2N8N-JKXH].<\/span> ANB and ANS noted that repealing the system would \u201csubvert the will of voters\u2026 exacerbate polarization and hyper-partisanship; centralize power within the hands of small groups of partisan voters, and discourag[e] common-sense legislating and consensus-building.\u201d273<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Support for the Alaska Model has come from a wide variety of groups and individuals across the state.274<\/a><\/sup>These groups include the Alaska Independence Party, Alaska Libertarian Party, ANCSA Regional Association, Institute of the North, Juneau Pro-Choice Coalition, League of Women Voters, Alaska Nurses Association, Native Peoples Action, Sealaska, Stand Up America, Tanana Chief Conference, Tlingit & Haida, Alaska Professional Firefighters, United Tribes of Bristol Bay, Veterans for Alaska Voters and twenty labor organizations. See<\/em> No On 2, https:\/\/noon2ak.com\/coalition\/ [https:\/\/perma.cc\/Q4R6-FN2F].<\/span><\/p>\n

H. The Alaska Model Demonstrates Success and Provides Insights into Important Improvements<\/em><\/p>\n

The nonpartisan primary election, with top four candidates going on to a ranked-choice general election has served Alaskan voters well. Candidates may complain that it costs more for them, requires more work on their part to talk to all voters, requires more transparency of true sources of campaign money, and forces more honest conversations between candidate and voter without reliance on political party platforms. For the voters, the Alaska Model provides more opportunity to express their preferences with their votes, more access to true source funding of campaigns, and more authentic conversations with candidates.<\/p>\n

There are recognized improvements that must be implemented to further perfect the process. Alaska\u2019s massive size, extremely limited road infrastructure, and widely distributed small population make election administration very challenging.<\/p>\n

Ballot delivery can be very unreliable, with vast portions of the state served only by air transportation. Weather is often a factor for planes flying to remote locations in our Arctic state. Nevertheless, delivery of ballots by postal service must be improved, with utilization of technology to track ballot locations. The primary election in 2024 got off to a difficult start with ballots not being delivered to polling locations in a timely manner, with ballots ultimately arriving five days after the primary election early voting had begun.275<\/a><\/sup>James Brooks, Mail Delays Postpone the Start of Pre-Election Day Voting in Parts of Rural Alaska<\/em>, Alaska Beacon<\/span> (Aug. 7, 2024), https:\/\/alaskabeacon.com\/2024\/08\/07\/mail-delays-postpone-the-start-of-pre-election-day-voting-in-parts-of-rural-alaska\/ [https:\/\/perma.cc\/6D8P-SXYU]. <\/span> In 2022, ballots from rural Alaska did not arrive in time to be counted in the special general election for U.S. Congress.276<\/a><\/sup>Iris Samuels, Alaska\u2019s Election Results are Certified with Some Ballots Left Uncounted<\/em>, Anchorage Daily News<\/span> (Sept. 3, 2022), https:\/\/www.adn.com\/politics\/2022\/09\/02\/alaskas-election-results-are-certified-with-some-ballots-left-uncounted\/ [https:\/\/perma.cc\/DGE8-JDZR].<\/span> To address both delivery and return of ballots, this year the Alaska Division of Elections is initiating the use of tracking devices in the mail bags.277<\/a><\/sup>James Brooks, Alaska Elections Officials Plan to Debut New Ballow-Tracking System with Aug. 20 Primary<\/em>, Alaska Beacon<\/span> (Aug. 16, 2024), https:\/\/alaskabeacon.com\/briefs\/alaska-elections-officials-plan-to-debut-new-ballot-tracking-system-with-aug-20-primary\/ [https:\/\/perma.cc\/PEG9-V385].<\/span><\/p>\n

Rural Alaska polling locations are challenged to find poll workers to open the polling locations. This happened in 2022 for the primary278<\/a><\/sup>James Brooks, Two Rural Alaska Communities Failed to Open Polling Places on Election Day<\/em>, Alaska Beacon<\/span> (Sept. 2, 2022), https:\/\/alaskabeacon.com\/briefs\/two-rural-alaska-communities-failed-to-open-polling-places-on-election-day\/ [https:\/\/perma.cc\/JB6C-24RU].<\/span> and the general election.279<\/a><\/sup>Alena Naiden, 2 Rural Alaska Polling Places Didn\u2019t Open Until Late Afternoon on Election Day<\/em>, Anchorage Daily News<\/span> (Nov. 10, 2022), https:\/\/www.adn.com\/alaska-news\/rural-alaska\/2022\/11\/10\/two-rural-alaska-polling-places-didnt-open-until-late-afternoon-on-election-day\/ [https:\/\/perma.cc\/ZV45-JKZ4].<\/span> This ongoing problem is being addressed at each election cycle by the Alaska Division of Elections. The Alaska Legislature passed legislation to increase the pay for poll workers, in hopes of drawing more staff.280<\/a><\/sup>H.B. 268, 33rd Leg., Reg. Sess. (Alaska 2024). <\/span><\/p>\n

Despite significant efforts, communication with rural areas across Alaska, a state which is larger than Texas, California, and Montana combined. This underscores the ongoing work to set up polling places, and the fifteen-day post-election window to allow ballots to arrive in the Division of Election in the state capitol in Juneau.281<\/a><\/sup>Andrew Kitchenman, Two Rural Alaska Precincts Fail to Open for Primary Voting After Workers Don\u2019t Respond to State<\/em>, Alaska Beacon<\/span> (Aug. 20, 2014), https:\/\/alaskabeacon.com\/briefs\/3-rural-alaska-precincts-fail-to-open-for-primary-voting-after-workers-dont-respond-to-state\/ [https:\/\/perma.cc\/AX98-QW45]. <\/span><\/p>\n

Absentee voting by mail is very popular in Alaska and can be requested without specifying a justification for the absentee status. Witness signatures and postage affixed to the mailed envelope have been required on any ballots voted absentee by mail. During the COVID-19 pandemic, both requirements were suspended but reinstituted in 2022. Voter confusion resulted with some ballots arriving without the witness signature; the U.S. Postal Service nevertheless did deliver ballot envelopes without postage to the Division of Elections. Legislation, Senate Bill 138, was introduced in 2023 to repeal the witness signature requirement and institute a state postage paid return envelope for ballots,282<\/a><\/sup>S.B. 138, 33rd Leg., Reg. Sess., (Alaska 2023).<\/span> but the bill failed to pass.283<\/a><\/sup>See Bill History\/Action for Legislature<\/em>, Alaska State Legislature<\/span>, https:\/\/www.akleg.gov\/basis\/Bill\/Detail\/33?Root=SB%20138#tab1_4 [https:\/\/perma.cc\/D7A6-PENX] (demonstrating \u201ccurrent status\u201d and \u201cstatus date\u201d that bill failed to be enacted).<\/span><\/p>\n

The Alaska Model has been implemented twice, with 2024 elections being the third time; improvements are recognized that might be considerations for other states considering some permutation of the Alaska Model for their state. Legislation introduced in 2023, but failing to pass, would have required frequent public updates of vote tallies, ballot tracking barcodes to verify date of mailing and to allow voters the ability to track their ballot,284<\/a><\/sup>S.B. 138, <\/em>33d Leg., Reg. Sess. (Alaska 2023).<\/span> and a process for \u201cballot curing\u201d which allows a deficiency to be corrected by the voter within certain guidelines.285<\/a><\/sup>Id.<\/em><\/span> The 2023 legislation would provide that unofficial election result totals, including updated RCV tabulation, be released as counted.286<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Campaign funding laws are another topic of Alaska Model reform under consideration. The true source disclosure requirements for \u201cdark money\u201d could be applied to ballot initiatives, referenda, and recalls. There is discussion of restoring Alaska\u2019s campaign contribution limits which were removed in 2021 by the Ninth Circuit Court of Appeals, in Thompson v. Hebdon<\/em>.287<\/a><\/sup>Thompson v. Hebdon, 7 F.4th 811 811, 827 (9th Cir. 2021).<\/span><\/p>\n

IV. Conclusion<\/span><\/p>\n

In 2020, Alaskan voters were presented with the opportunity to have more choice and voice through election reforms. A citizens\u2019 initiative proposed the Alaska Model, which created nonpartisan primary elections, followed by ranked-choice general elections with up to four candidates to choose from and requiring more than fifty percent of the vote to win election. The initiative also included a requirement for \u201ctrue source\u201d campaign fund disclosure.<\/p>\n

These three elements would create an innovative restructure that has brought much needed transparency and trust in the election conduct and outcome. Funders can no longer hide behind amalgamated funds of independent expenditure groups; all political donation sources must be fully identified. A small fraction of party-affiliated voters\u2019 no longer control which candidates are allowed to appear on the general election ballot for the rest of Alaskans to choose from; all voters can fully participate in nonpartisan primaries. General elections are no longer a binary choice, structured to benefit political parties; all voters can express their full preferences as they rank up to four candidates on the general election ballot.<\/p>\n

Nay-sayers asserted that voters would not understand how to rank; the outcomes would be \u201crigged;\u201d the new systems would violate constitutional rights; and the change would be too expensive and confusing. Alaskans proved these allegations wrong, and courts in Alaska and other jurisdictions agreed.<\/p>\n

In this essay we have responded to and clarified the concerns and misunderstandings expressed by various state legislators. As other states consider the Alaska Model, acting as laboratories of democracy envisioned by the Founders, our intention is that this essay will provide a roadmap and valuable background to inform their decisions.<\/p>\n

\n

[*]<\/a> Senator Cathy Giessel, MSN, APRN-BC, Fellow-AANP, has served in the Alaska State Senate for twelve years. She was the Senate President from 2019\u20132020 and is the current Majority Leader for the Senate Bipartisan Coalition.<\/p>\n

[**]<\/a> Senator Bill Wielechowski, JD, Seton Hall University School of Law, has served in the Alaska State Senate since 2007. He serves as the Senate Rules Chair for the Senate Bipartisan Coalition.<\/p>\n

Our thanks for the extraordinary assistance of Alaska Senate staff, Sonja Kawasaki, JD, University of Dayton School of Law, for her editing skills, as well as David Dunsmore, both of whom provided invaluable research assistance. We also thank the editors of the Harvard Journal on Legislation<\/em> for their careful review and support publishing this piece.<\/p>\n\n\n

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View PDF Version<\/a><\/div>\n<\/div>\n\n\n\n

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