Why Rank Choice Voting is Unconstitutional

What would an Executive Order to Ban Rank Choice Voting look like? Take a peek to help you understand its failings.

The purpose of this executive order is to ensure the integrity of the voting process and uphold the constitutional principles of "one person, one vote" as enshrined in the Equal Protection Clause of the Fourteenth Amendment. Ranked-choice voting (RCV) has been found to potentially dilute the weight of individual votes and undermine the fundamental principle of equal representation. Across the country where RCV has been implemented, election results have seen thousands of votes “exhausted” or thrown out. RCV is flawed, because it often prevents a Condorcet winner (simple majority winner), even when one exists, while throwing out thousands of votes.

A "Condorcet winner" beats every other candidate in a head-to-head match-up, ensuring the winner has true majority support. This was named after French political philosopher and mathematician that applied mathematics to voting theory. A Condorcet winner is essential to stable democracies, where leaders need to earn at least 51% of their constituents' support, or be ousted. RCV turns this concept on its head, exhausting thousands of votes, while defying 1 person=1 vote.

Often, RCV winners don't even lead in first choice votes, like Mayor Sheng Thao of Oakland in 2022, or Myrna Melgar in 2020 D7 elections. Loren Taylor and Joel Engardio ended up losing these respective elections, even when they led in first-choice votes. Moderates across the country are losing in so many essential races due to RCV, because they are a larger voting block which naturally results in more competing candidates. A larger voting block means they reflect a larger population of voters. RCV weakens moderates and candidates that have large support of the popular vote by splitting their votes. The most vocal advocates for RCV often reflect a smaller voting block. These are often fringe candidates that can't garner a true majority, so they need to use RCV to cheat and win.

In the 2009 Burlington, VT Mayoral Election, Montroll was the Condorcet winner, beating Kiss (56-44) and Wright (54-46) in simulated head-to-heads, but RCV eliminated him early (26% first-choice). This mismatch led Burlington to repeal RCV.

In the 2019 San Francisco mayoral race, 9,000 votes were exhausted, because many voters did not rank all the candidates and their ballots became inactive once their preferred candidates are eliminated. In 2013 Minneapolis MN mayoral election, 7,000 votes were exhausted for similar ranking issues, as well as Oakland CA 2010 mayoral race where 6,000 votes were exhausted. It should be a voter’s right not to have to rank all candidates, yet, not knowing who will be in the final run-off, makes it impossible for voters to prevent their ballot exhaustion.

In Reynolds vs Sims 64-CV-00023 at 561-568 (M.D. AL, 1964), the Court established “one person, one vote” principle, affirming the Equal Protection Clause that requires that all citizens’ votes should carry equal weight. The Court held that the right to vote is a fundamental right and that any state electoral system must be carefully scrutinized to ensure compliance with the principal of equal representation.

Additionally, in Bush v Gore, 531 US 98 (2000), the Court underscored the need for equal treatment of votes, emphasizing that disparities in voting procedures could result in unequal valuation of votes, which is contrary to the Equal Protection Clause.

In Dudum v Arntz, 640 F. 3d 1098 (2011), plaintiffs specifically argued that allowing voters the ability to rank only 3 candidates per office in that specific election was unconstitutional. The Court stated that the plaintiffs failed to demonstrate allowing for more candidate ranking would benefit “public interest”. It’s clear the Court failed to understand that in more complicated elections, where there are 5 or candidates, thousands of votes have been exhausted, which failed to uphold “one person, one vote”. In the 2024 SF election alone, there were at least 15 mayoral candidates on the ballot for ranking. Since RCV was adopted in SF in 2002, many candidates have failed to garner a true majority, winning with less than 35% of first choice votes.

Section 2. Policy

It is the policy of the United States to ensure that every citizen's vote is counted equally and that the electoral process is free from practices that may lead to voter disenfranchisement and confusion.

Section 3. Prohibition of Ranked-Choice Voting

(a) Effective immediately, the use of ranked-choice voting in any federal, state, or local elections is hereby prohibited.

(b) All jurisdictions currently utilizing ranked-choice voting shall transition to an alternative voting method that complies with the "one person, one vote" principle within 180 days of the issuance of this order.

Section 4. Implementation

(a) The Secretary of State, in consultation with the Attorney General, shall develop and disseminate guidelines to assist jurisdictions in transitioning away from ranked-choice voting.

(b) The Department of Justice shall monitor compliance with this order and take appropriate actions to enforce its provisions.

Section 5. Legal Framework

This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Section 6. General Provisions

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.