Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 3/4/2003
Status: Precedential
Modified Date: 7/6/2016
The Honorable Carlos Uresti Chair, Human Services Committee Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910
Re: Whether a home-rule municipality may adopt instant runoff voting (RQ-0591-JC)
Dear Representative Uresti:
Your predecessor asked about a home-rule municipality's authority to adopt instant runoff, or "preferential," voting.1
Representative Naishtat indicated that in 2001 citizens and officials of the City of Austin (the "City") considered adopting instant runoff voting. See Request Letter, supra note 1, at 1. He described instant runoff voting as a method that eliminates the need for an expensive runoff election if no candidate has garnered a majority of the votes cast at an initial election:
[W]hen voters go to the polls, they rank candidates as to their first choice, second choice, third, fourth[,] and so on. If a candidate does not receive a clear majority of votes on the first count, a series of simulated runoff counts are then conducted until one candidate receives a majority. After the first count, the candidate who received the fewest first place ballots is eliminated and his or her second place votes reallocated to the remaining candidates. All ballots are then tabulated, with each ballot counting as one vote for each voter's favorite candidate who is still in contention. Voters who chose the now-eliminated candidate [as their first choice] have to support their second choice candidate — just as if they were voting in a traditional two-round runoff election — but all other voters get to continue supporting their top candidate. This process continues until a candidate receives a majority.2
Id. at 1-2 (footnote added); see also, e.g., Tony Anderson Solgard Paul Landskroener, Feature, Municipal Voting SystemReform: Overcoming the Legal Obstacles, 59 Bench Bar Minn. 16, 17-18 (Oct. 2002); Roberta A. Yard, Comment, American Democracyand Minority Rule: How the United States Can Reform its ElectoralProcess to Ensure "One Person, One Vote," 42 Santa Clara L. Rev. 185, 214-15 (2001).
The Election Code (the "Code"), which "applies to all general, special, and primary elections held in this state," "supersedes a conflicting statute . . . unless this code or the outside statute expressly provides" to the contrary. Tex. Elec. Code Ann. §
Chapter 275, in particular, applies to elections for officers in a city with a population of 200,000 or more, such as the City.See Tex. Elec. Code Ann. §
(a) When a city attains a population of 200,000 or more, the city shall establish a system of electing its governing body in accordance with this section if in the city's general elections more than one member of its governing body is elected from the same set of candidates.
(b) Not later than the 60th day before the date of the first general election held in accordance with this section, the city's governing body shall assign a place number to each position on the governing body that is to be elected from the same territory as another position, identifying it by the name of the incumbent at the time the assignment is made.
(c) One person shall be elected to fill each position for which a place number appears on the ballot.
(d) The city shall use the place system required by this section until the city establishes another system of election that is consistent with an election by majority vote.
Id. § 275.003.
Once an election has been held, section 2.021 of the Code generally requires a runoff election when no one "candidate for a particular office . . . in an election requiring a majority vote" received a majority of the votes cast. Id. § 2.021 (Vernon 1986). If a runoff is necessary, "the authority responsible for ordering the main election" must order a runoff election. Id.
§ 2.024. "[T]he candidates in a runoff election are the candidates who receive the highest and second highest number of votes in the main election or who tie for the highest number of votes." Id. § 2.023(a).
After considering a City inquiry regarding the legality of instant runoff voting, the secretary of state concluded, in Election Law Opinion HC-1, that the City could not adopt instant runoff voting. See Op. Tex. Sec'y State No. HC-1 (2001) at 5. While acknowledging a home-rule municipality's "broad authority," the secretary cautioned that a city charter must comport with state law, which requires election by a majority. Id. at 1 (citing Tex. Const. art.
The secretary of state articulated the proper standard for determining whether state law preempts a home-rule municipality's authority generally. As the secretary indicated, state law preempts a home-rule municipality's charter or ordinance if the state law and municipal law are irreconcilably inconsistent. See
Tex. Const. art.
Moreover, the secretary correctly declared that the Code preempts inconsistent home-rule charter provisions. See Op. Tex. Sec'y State No. HC-1 (2001) at 1-2. The Code preempts with "unmistakable clarity" contrary home-rule municipality charter provisions and ordinances, except where the Code expressly permits a conflicting law. In re Sanchez,
Representative Naishtat also asked whether state election law preempts the City's adoption of instant runoff voting. See Request Letter, supra note 1, at 3. The secretary of state's opinion focuses on the statutory majority vote requirements. See Op. Tex. Sec'y State No. HC-1 (2001) at 2-3. By contrast, we believe that the statutory runoff requirements preempt an instant runoff system.
The Code plainly precludes a municipality from adopting an instant runoff system. Under the Code, in the event of a plurality vote in a home-rule municipality, the appropriate official must order a runoff election. See Tex. Att'y Gen. Op. No.
Representative Naishtat suggested that section 275.003(d) may allow a home-rule municipality to adopt instant runoff voting.See Request Letter, supra note 1, at 3 (summarizing arguments of instant runoff voting proponents and secretary of state). Section 275.003(d) requires a municipality with a population of 200,000 or more to use the place system "until the city establishes another system of election that is consistent with an election by majority vote." Tex. Elec. Code Ann. §
Section 275.003(d) does not apply here. Section 275.003 as a whole applies only to a municipality that has recently attained a population of 200,000 or more: "When a city attains a population of 200,000 or more, the city shall establish a [place] system of electing its governing body." Id. § 275.003(a). Election "by place" generally denotes "the scheme of electing multiple candidates from the same territory by assigning distinct `place' numbers to as many positions as are to be filled by the election." Tex. Att'y Gen. Op. No.
The fact that the legislature deleted statutory references to preferential voting in 1985, as the secretary of state has pointed out, lends additional, although not conclusive, support to our determination. See id. at 2-3. From the time of its original adoption in 1941 and its codification in 1985, state law had excepted from majority vote and runoff requirements a municipality whose charter provided for selecting local officers "by means of a preferential type of ballot; provided that such city does not use voting machines as the legal method of voting." Act of Mar. 26, 1941, 47th Leg., R.S., ch. 80, § 2, 1941 Tex. Gen. Laws 98, 99; see also Clancy v. Clough,
We conclude that state law conflicts irreconcilably with, and thereby preempts, instant runoff voting. Consequently, a home-rule municipality may not adopt instant runoff voting.3
Very truly yours,
GREG ABBOTT Attorney General of Texas
BARRY R. McBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General — General Counsel
NANCY S. FULLER Chair, Opinion Committee
Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee
In Re Sanchez , 81 S.W.3d 794 ( 2002 )
Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas , 852 S.W.2d 489 ( 1993 )
City of Richardson v. Responsible Dog Owners of Texas , 794 S.W.2d 17 ( 1990 )
Bullock v. Calvert , 480 S.W.2d 367 ( 1972 )
Tomlinson v. Williamson , 243 S.W. 287 ( 1922 )