Can Connecticut switch to ranked choice voting for governor, statewide officers, and the General Assembly without amending the state constitution?

Plain-English summary

In ranked choice voting (RCV), each voter ranks candidates in order of preference. If no candidate gets a majority of first-choice votes, election officials drop the last-place candidate and reassign that candidate's voters to their next preference. Successive rounds of elimination continue until somebody has a majority.

Speaker Matthew Ritter asked whether Connecticut could adopt RCV for state legislative and statewide office elections (governor, lieutenant governor, secretary of the state, treasurer, comptroller, and attorney general) without amending the state constitution.

Attorney General William Tong called it a close question, but concluded RCV would likely not survive constitutional review. Two parts of the constitution stand in the way:

• The Plurality Provisions (Conn. Const. art. third, § 7 and art. fourth, § 4) say the winner is whoever receives "the greatest number of votes." The AG read "vote" to mean a voter's initial ranked preference, not the eventual outcome of a multi-round retabulation. On that reading, RCV is incompatible with the rule that the candidate with a plurality on the first count wins.
• The Count and Declare Provisions (Conn. Const. art. third, § 9 and art. fourth, § 4) require local officials in each town to count and declare the votes in an open meeting. That works for traditional elections, where votes can be tallied locally and announced on the spot. It does not work for an RCV election whose final outcome can only be calculated after every town's preferences are pooled and run through rounds of elimination.

The opinion notes that other state supreme courts have split. Maine concluded RCV violates its plurality provision. Alaska went the other way. The AG worked through the multi-factor State v. Geisler test for state constitutional interpretation and concluded that Connecticut's text, framers' intent, and historical context point toward the Maine result.

Bottom line: a Connecticut RCV statute for state general elections would be vulnerable to constitutional challenge, and a constitutional amendment is likely needed to clear the path. The opinion does not address federal elections, municipal elections, or primary elections, all of which are governed by different provisions.

What this means for you

If you are a Connecticut legislator considering RCV legislation

A statute alone is risky. The AG's opinion is not a court ruling, but it is the legal position of Connecticut's chief legal officer, and the underlying analysis (especially the Plurality Provisions argument) tracks what the Maine Supreme Judicial Court held. To put RCV on solid ground for state general elections, plan for a constitutional amendment. The amendment process under Conn. Const. art. XII requires action across two consecutive sessions or a supermajority vote, then ratification by the electors.

If you are an RCV advocacy organization

This opinion is the new starting point for your strategy. The opinion concedes RCV as a policy idea has merit and walks through the standard arguments that critics make (that RCV gives some voters multiple votes, or disenfranchises voters whose ballots are exhausted) and rejects them. So the constitutional barrier here is narrow: it is about what "vote" and "count and declare" mean in Connecticut's specific text, not about RCV as a whole. That narrower framing matters when you draft amendment language. Borrow Oregon's 1908 model, which expressly authorized voters to make multiple ranked choices in one constitutional sentence.

If you are an election administrator or municipal clerk

Nothing in this opinion changes your current operations. Connecticut continues to use first-past-the-post for state general elections. If RCV is later authorized by amendment or for offices outside this opinion's scope, the Count and Declare reasoning suggests the legislature would also need to redesign the local-tabulation process so that final outcomes can be lawfully announced.

If you are working on RCV at the federal or municipal level in Connecticut

The opinion explicitly limits itself to Connecticut general elections for state office. It does not address federal elections, all primary elections, or municipal elections. The Plurality and Count and Declare Provisions reach state legislative and statewide offices, not municipal contests. West Hartford in fact used a form of RCV for town council elections in 1921. The General Assembly responded that year with a statute (later repealed) blocking municipal RCV, but the constitutional barrier this opinion identifies does not by its own terms reach local offices.

If you are a voter trying to understand the debate

This opinion does not say RCV is bad policy. It says Connecticut's constitution, as written, probably does not permit it for state general elections. Changing that requires either a constitutional amendment or a state Supreme Court decision reading "vote" the way Alaska's Supreme Court did rather than the way Maine's did.

Common questions

Q: What is ranked choice voting?
A: A voting system, also called instant runoff voting, in which voters rank candidates in order of preference. If no candidate wins a majority of first-choice votes, the last-place candidate is eliminated and that candidate's ballots are redistributed to each voter's next preference. The process repeats until a candidate has a majority.

Q: Why does Connecticut's constitution stand in the way?
A: Two reasons. First, the Plurality Provisions (art. third, § 7 and art. fourth, § 4) say the winner is whoever gets the "greatest number of votes." The AG read "vote" to mean the voter's first-choice expression, so the candidate leading after the first round must win. Second, the Count and Declare Provisions (art. third, § 9 and art. fourth, § 4) require local officials to count and declare votes in open meeting; in RCV, the final outcome can only be calculated after pooling preferences across many towns.

Q: Has any other state's high court answered this question?
A: Yes, two have, and they split. Maine's Supreme Judicial Court held RCV violated its plurality provision (In re Op. of the Justs. of the Sup. Jud. Ct., 162 A.3d 188 (Me. 2017)). Alaska's Supreme Court reached the opposite conclusion (Kohlhaas v. Off. of Lieutenant Governor, 518 P.3d 1096 (Alaska 2022)). The AG found Maine's reasoning more persuasive for Connecticut's text.

Q: What about the argument that RCV gives some voters more than one vote?
A: The AG rejected that argument, following the Ninth Circuit's reasoning in Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011): RCV does not give anyone extra votes. Each ballot counts as no more than one vote at each tabulation step, and each vote attributed to a candidate carries the same weight. The constitutional defects the AG identified are about plurality and tabulation procedure, not vote-equality.

Q: Does this opinion bind Connecticut courts?
A: No. AG opinions are persuasive but not binding precedent. A court could disagree. But until a court does, the AG's view is the controlling legal advice for Connecticut state agencies.

Q: Does this opinion cover RCV for federal offices, municipal elections, or primaries?
A: No. The AG limited the analysis to Connecticut general elections for state legislative and statewide office. Federal elections are governed by federal constitutional and statutory provisions; municipal elections by different state constitutional provisions; primary elections by yet another set of rules.

Q: What would it take to authorize RCV for state offices in Connecticut?
A: A state constitutional amendment is the safest path. The opinion notes Oregon did exactly that in 1908, expressly authorizing voters' "first, second or additional choices among the candidates." Or a state Supreme Court could later disagree with the AG's reading of "vote" and "count and declare." Either path would require significant time and political effort.

Background and statutory framework

Connecticut has used first-past-the-post voting throughout its history. Originally, gubernatorial and statewide officer elections required a majority winner, with the legislature deciding inconclusive races. Between 1818 and 1900, fourteen gubernatorial elections went to the legislature for resolution. The 1890 election produced gridlock so severe that the General Assembly itself ground to a halt. (See State ex rel. Morris v. Bulkeley, 61 Conn. 287 (1892).) In response, Connecticut adopted Article XXX of the Amendments in 1901, eliminating the majority requirement and replacing it with the current plurality rule: the "greatest number of votes."

That 1901 amendment is the immediate ancestor of the constitutional language at issue. The AG's analysis stresses that RCV was already part of public policy debate by the late 1800s and early 1900s. Several states experimented with RCV-type systems for primaries (Washington, Idaho, North Dakota), Wisconsin used an RCV system for U.S. senator elections, and Oregon amended its constitution in 1908 to expressly permit voters to express ranked choices. Connecticut's framers in 1901 might well have known about RCV but did not adopt language permitting it.

The opinion analyzes the question through the multi-factor test from State v. Geisler, 222 Conn. 672 (1992), which Connecticut courts use to interpret state constitutional provisions that lack federal analogues. The relevant factors here are text, history, related Connecticut precedent, and persuasive precedent from other states. The AG concludes the text and history weigh against RCV, related Connecticut precedent is silent, and other-state precedent splits. On balance, RCV would likely not survive a Connecticut constitutional challenge.

The opinion also rejects two challenges to RCV that other litigants have raised. The first is that RCV gives some voters more votes than others; the AG agrees with the Ninth Circuit's Dudum v. Arntz that it does not. The second is that RCV deprives some voters of their vote when their ballots become "exhausted"; again, the AG agrees with Dudum that exhausted ballots are simply counted as votes for losing candidates, the same as in any plurality election.

Citations and references

Constitutional and statutory provisions:
- Conn. Const. art. third, § 7 (Plurality Provision, General Assembly)
- Conn. Const. art. fourth, § 4 (Plurality and Count and Declare Provisions, statewide offices)
- Conn. Const. art. third, § 9 (Count and Declare Provision, General Assembly)
- Conn. Gen. Stat. § 9-360 (one elector, one vote)
- Conn. Gen. Stat. § 1-2z (statutory plain meaning)
- Conn. Gen. Stat. § 9-309(a) (open meeting transparency in tabulation)

Cases (Connecticut):
- Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135 (2008) (constitution as living document)
- Patterson v. Dempsey, 152 Conn. 431 (1965)
- State v. Geisler, 222 Conn. 672 (1992) (multi-factor test for state constitutional interpretation)
- Fay v. Merrill, 338 Conn. 1 (2021)
- Feehan v. Marcone, 331 Conn. 436 (2019)
- Honulik v. Greenwich, 293 Conn. 641 (2009)
- State v. Webb, 238 Conn. 389 (1996)
- State v. Dukes, 209 Conn. 98 (1988)
- McGovern v. Mitchell, 78 Conn. 536 (1906)
- State ex rel. Morris v. Bulkeley, 61 Conn. 287 (1892) (1890 gubernatorial election crisis)

Cases (other states and federal):
- In re Op. of the Justs. of the Sup. Jud. Ct., 162 A.3d 188 (Me. 2017) (RCV violates Maine plurality provision)
- Kohlhaas v. Off. of Lieutenant Governor, 518 P.3d 1096 (Alaska 2022) (RCV consistent with Alaska constitution)
- Senate v. Sec'y of State, 183 A.3d 749 (Me. 2018)
- Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011) (rejecting one-person-multiple-votes and exhausted-ballot challenges to RCV)
- Hagopian v. Dunlap, 480 F. Supp. 3d 288 (D. Me. 2020)
- Baber v. Dunlap, 376 F. Supp. 3d 125 (D. Me. 2018)
- Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009)
- McSweeney v. City of Cambridge, 422 Mass. 648 (1996)
- Moore v. Election Commissioners of Cambridge, 309 Mass. 303 (1941)
- State ex rel. Zent v. Nichols, 50 Wn. 508 (1908)
- Adams v. Lansdon, 18 Idaho 483 (1910)
- State ex rel. Shaw v. Harmon, 23 N.D. 513 (1912)
- State ex rel. Kletzsch v. Widule, 158 Wis. 387 (1914)
- State ex rel. Duniway v. Portland, 65 Ore. 273 (1913)
- McEwen v. Prince, 125 Minn. 417 (1914)
- Garneau v. Cadillac, 182 Mich. 91 (1914)
- Orpen v. Watson, 87 N.J.L. 69 (1915)
- Maynard v. Bd. of Dist. Canvassers, 84 Mich. 228 (1890)

Other AG opinions surveyed:
- Kan. Op. Att'y Gen. No. 2020-7 (June 1, 2020) (RCV not prohibited)
- Idaho Att'y Gen. Op. (May 31, 2023) (RCV violates plurality requirement)
- Vt. Att'y Gen. Op. #2003-1 (Feb. 24, 2003) (RCV permissible for some offices, not others)
- S.D. Att'y Gen. Op. No. 22-01 (May 4, 2022) (RCV consistent with state-statute "vote" but blocked for municipal elections)

Secondary sources:
- W. Horton, The Connecticut State Constitution (2d ed. 2012), p. 127
- Richard H. Pildes & G. Michael Parsons, The Legality of Ranked-Choice Voting, 109 Calif. L. Rev. 1773 (2021)
- Cong. Research Serv., Ranked-Choice Voting: Legal Challenges and Considerations for Congress (Oct. 12, 2022)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2024/2024_1_ago_formal_opinion_on_ranked_choice_voting.pdf?rev=48e21f4e330c4650b429803eb82c1fd0

Original opinion text

OFFICE OF THE ATTORNEY GENERAL
CONNECTICUT

william tong
attorney general

January 16, 2024
By Email
The Honorable Matthew Ritter
Speaker of the House
Legislative Office Building, Room 4105
Hartford, Connecticut 06106-1591
[email protected]

Re: Request for Formal Opinion Regarding Ranked Choice Voting

Dear Speaker Ritter:

This formal opinion answers your complex and novel question, which no Connecticut court has examined: whether Connecticut's constitution allows ranked choice voting in general elections for the state legislature and the positions of Governor, Lieutenant Governor, Secretary of the State, Treasurer, Comptroller, and Attorney General. General elections for federal and municipal office, and all primary elections, are beyond the scope of this opinion, since different constitutional provisions control those elections.

In ranked choice voting (RCV), also known as instant runoff voting, each voter submits a ballot ranking candidates in order of preference. A candidate wins outright if she is the first choice of the majority of voters. Otherwise, tabulators eliminate the last-place candidate, whose ballot preferences are reallocated to surviving candidates according to each voter's preference. Successive rounds of elimination and reallocation can follow until a candidate has a majority. Supporters argue that ranked choice voting increases voter choice and promotes representative outcomes.

Whatever RCV's policy merits, though, Connecticut cannot implement it in violation of the state constitution. Our state has never used ranked choice voting; our constitution does not mention it; and I found no evidence that the framers of our constitution intended to authorize it.

But that does not end the inquiry, since the Connecticut constitution is a "living document" and "an instrument of progress . . . intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all our citizens." Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 156-57 (2008) (internal quotation marks and citation omitted).

So the question here is not whether our constitution explicitly permits RCV. It does not. Instead, the question is whether the constitution leaves the door open for adopting some form of RCV, since the General Assembly has "the power to enact any legislation except as restricted by provisions of the state or federal constitution." Patterson v. Dempsey, 152 Conn. 431, 444 (1965).

That question is much closer. And while nothing in our constitution explicitly bars RCV, I have two significant concerns, rooted in our constitution's Plurality Provisions, article third, § 7 and article fourth, § 4, and the Count and Declare Provisions, article third, § 9 and article fourth, § 4.

This formal opinion first explains how RCV works; then analyzes RCV's compliance with the Plurality Provisions and the Count and Declare Provisions; and finally considers, and rejects, other possible constitutional objections. I conclude that RCV would likely not survive a constitutional challenge.

An Overview of Ranked Choice Voting

RCV is perhaps best explained by comparison with more familiar forms of voting: (1) "first-past-the-post" voting; (2) "runoff" voting; and (3) "cumulative voting."

Voters are familiar with Connecticut's current "first-past-the-post" system. A voter makes a single selection for a single candidate, and the candidate that receives a plurality wins. "Runoff" voting is similar. A voter still has only a single choice, but candidates only win by receiving a majority, rather than a plurality, of the votes cast. If no candidate receives a majority, then all but the top candidates (usually, the top two) are eliminated. The jurisdiction then holds a second, "runoff" election between the remaining candidates to determine the winner. Finally, "cumulative voting" is used in elections with more than one open seat. Each voter typically has as many votes as there are seats available, and can allocate those votes to one or multiple candidates.

RCV, as it is usually implemented, borrows from each of these systems. It allows voters to rank multiple candidates in order of preference. In the first round of tabulation, the candidate receiving the fewest first-choice preferences is eliminated. First-choice preferences for the eliminated candidate are reallocated to each voter's second-choice candidate. The process is repeated until a candidate has a majority.

The Plurality Provisions

The Plurality Provisions award general election victories in General Assembly and statewide office races to candidates who receive the "greatest number of votes." Conn. Const. art. third, § 7 (General Assembly elections); Conn. Const. art. fourth, § 4 (statewide offices).

The "greatest number" of votes means a plurality of the votes cast. That is the text's plain meaning, the place where all interpretation starts. See Fay v. Merrill, 338 Conn. 1, 32 (2021); Conn. Gen. Stat. § 1-2z (articulating the general interpretive rule, as applied to statutes); Black's Law Dictionary (11th ed. 2019) (defining "plurality" as "[t]he greatest number (esp. of votes), regardless of whether it is a majority, simple, or absolute"). And the history of Connecticut's constitutional evolution in this area evidences the framers' clear intent to institute a plurality victory threshold.

Since 1818, when Connecticut's first constitution was adopted, General Assembly seats have gone to candidates receiving the "greatest number" of votes in their respective races. But the 1818 constitution required gubernatorial candidates to "have a majority" of the votes cast. If no gubernatorial candidate won a majority, the legislature would decide the winner. Conn. Const., art. fourth, § 2 (1818). In 1832 and 1836, the constitution was amended to require other statewide officers to be elected by a majority of votes.

The legislature regularly had to select election winners under that majority threshold system. Between 1818 and 1900, fourteen gubernatorial elections failed to produce a majority winner. Candidates for other state offices also often failed to secure a majority. At times, elections decided by the legislature generated controversy, and, culminating in the 1890 gubernatorial election, gridlock and threats of violence. That debacle led to the 1901 adoption of Article XXX of the Amendments, which eliminated the majority requirement and instead permitted state officers to be elected by "the greatest number of votes." W. Horton, The Connecticut State Constitution 127 (2d Ed. 2012).

To recap, then: each voter only gets to vote once. Conn. Gen. Stat. § 9-360. And, under the Plurality Provisions, a candidate wins as soon as she receives a plurality of the votes cast. But, in RCV, a candidate who receives a plurality (but not a majority) of preferences in the first round of tabulation does not win right away. Instead, election officials eliminate candidates, reallocate preferences, and retabulate until a candidate has a majority of first-place preferences.

The question turns on the meaning of the word "vote" in our constitution. The Plurality Provisions bar RCV in general elections for state office if a voter's ranked preferences under RCV are the same thing as a "vote" under our constitution. If the initial ranked preferences are the voter's "vote," then the Plurality Provisions forbid any further retabulation and reassignment. Whichever candidate gets the greatest number of first-place preferences in the initial tabulation, and thus a plurality, must be the winner. That's it. But if the "vote" is instead the ultimate outcome of the tabulation process, then RCV could be consistent with the Plurality Provisions, since the candidate with the "greatest number" of first-place preferences in the final tabulation will be the winner.

So what does "vote" mean, in our constitution? Is it only the voter's initial ranked preferences, or can it be the outcome of the tabulation process? To answer that question, I look to the language itself; to history that helps clarify the framers' intent; and to precedent from Connecticut, the federal courts, and other states.

Plain meaning and historical indicia of intent. RCV appears to have been unknown in 1818, when the framers of Connecticut's first constitution wrote our first Plurality Provision. And contemporary dictionary definitions from around 1818 and 1901, when the relevant constitutional amendments were adopted, do not suggest that the framers' understanding of "vote" extended to RCV. See Fay, 338 Conn. at 34 (looking to contemporaneous dictionary definitions). Those dictionaries defined "vote" as "a voice," "the expression of a wish or opinion," or "expressed will," but did not speak to whether that voice or expression, in the electoral context, could occur in multiple rounds.

By the late 1800s, RCV and other alternatives to first-past-the-post elections were increasingly "well-recognized" by scholars and policy advocates. Contemporaneous dictionaries began to mention voting systems, including RCV, that allowed voters to express preferences for multiple candidates. But these alternative voting systems remained the exception. Dictionaries tended to distinguish between a "preferential vote" or "cumulative voting," used in specific contexts like minority representation, from "voting" in the traditional sense. So the word "vote," standing on its own, largely retained its earlier connotation: a single vote for a single candidate, without rounds of tabulation and reallocation of preferences.

This distinction found its way into other states' legislation too. In the early 1900s, some states and municipalities began to implement RCV-type systems. Washington, Idaho, and North Dakota passed laws implementing RCV systems for statewide primaries. Wisconsin first proposed using RCV in 1906, and then used an RCV system for elections of U.S. senators some years later. Some municipalities followed suit. A few jurisdictions also experimented with other types of alternative voting systems. Most notably, Illinois amended its constitution in 1870 to adopt cumulative voting for certain state legislative elections. But at least some of these jurisdictions seemed to treat RCV as a new concept that went beyond traditional voting. For instance, when Oregon amended its constitution in 1908, it explicitly authorized voters to make multiple ranked choices. That choice suggests Oregon's framers did not think the word "vote," on its own, necessarily included the possibility of RCV, and they needed to say something more.

Precedent. No Connecticut court has ruled on the constitutionality of RCV. Federal precedent is not very helpful here either, since nothing in the federal constitution parallels our Plurality Provisions. Other states' precedent is more instructive, but cuts both ways. The supreme courts of Maine and Alaska, the only state courts to weigh in, split on whether their plurality provisions permit RCV. The question also divides the few other state attorneys general who have taken it up.

Maine's Supreme Judicial Court believes that a "vote" is a voter's initial ranking of preferences. So in 2017, the Supreme Judicial Court held that RCV could not be reconciled with the state constitutional requirement that "successful candidates for offices are identified by a plurality of all votes returned . . . ." In re Op. of the Justs. of the Sup. Jud. Ct., 162 A.3d 188, 197 (Me. 2017) (internal quotation marks omitted). For the Supreme Judicial Court, RCV violates the plurality rule because it "prevents the recognition of the winning candidate when the first plurality is identified." Id. at 211. For instance, the court reasoned, if "after one round of counting, a candidate obtained a plurality of the votes but not a majority, that candidate would be declared the winner according to the Maine Constitution as it currently exists." Id. But, under RCV, "that same candidate would not then be declared the winner."

A few years later, Alaska's Supreme Court came to the opposite conclusion. Under the Alaska constitution, just as under the constitutions of Maine and Connecticut, each voter gets only one vote, and the candidate receiving a plurality of votes wins. But for the Alaska Supreme Court, a "vote" is the voter's preference as determined at the end of the tabulation process. Nothing in its constitution, it argues, requires an election to be called "after one round of counting." Kohlhaas v. Off. of Lieutenant Governor, Div. of Elections, 518 P.3d 1096, 1121 (Alaska 2022) (quoting Op. of the Justices, 162 A.3d at 211). Instead, "[i]f the vote count is not final after the first round of tabulation, then the candidate in first place after the first round is not necessarily the candidate receiving the greatest number of votes. . . . [T]hat candidate is simply the candidate in the lead before the votes have been fully counted." Id. at 1121 (internal quotation marks omitted). The Alaska constitution, it concluded, did not prevent the state from finalizing the vote only after RCV's process of retabulation and reallocation.

In my view, neither of these thoughtful and well-reasoned opinions carries the day. Each offers a diametrically opposite answer to the definitional question I started with: what "vote" means under our constitution. Neither can resolve the meaning of Connecticut's constitutional provisions.

In the end, then, I find no textual or historical evidence that the framers intended our state constitution to authorize RCV. My review of dictionary definitions and practices in Connecticut and other jurisdictions shows that RCV was not generally understood, in 1818 or 1901, to fall within the ordinary meaning of the standalone word "vote." And, significantly, the framers of the 1901 amendment might well have known about RCV, which was then part of the public policy discourse, but, unlike the Oregon framers in 1908, declined to explicitly authorize it. I must conclude that RCV would likely not be constitutional under Connecticut's Plurality Provisions. And my analysis of the Count and Declare Provisions only strengthens that conclusion. I turn to that next.

The Count and Declare Provisions

The Count and Declare Provisions require local election officials ("the presiding officers in the several towns") to tabulate and announce ("count and declare") votes "in open meeting." The officials then make lists of the votes and deliver them to the Secretary of State for canvassing.

Parts of these provisions are clear and, standing alone, not inconsistent with RCV. For example: the "presiding officers in the several towns" language requires local election officials, not state election officials, to perform the counting and declaration. The "open meeting" requirement ensures transparency and accuracy in the vote count. See Op. of Judges, 30 Conn. at 599; Conn. Gen. Stat. § 9-309(a) ("[A]mple opportunity shall be given to any person lawfully present to compare the results so announced with the result totals provided by the tabulator and any necessary corrections shall then and there be made . . . .").

The problem arises with the requirement that all "votes" be counted and declared in that localized open meeting. Recall that an RCV system can only be constitutional under the Plurality Provisions if each "vote" is understood as the voter's ultimate candidate preference after elimination, reallocation, and retabulation. See Kohlhaas, 518 P.3d at 1096 (distinguishing between votes and preferences). And under the Count and Declare Provisions, that ultimate "vote", not the preferences used in reaching it, must be counted and declared by local officials in open meeting.

But it would be difficult, if not impossible, for Connecticut's local election officials to count and declare the "votes" in an RCV system, at least for statewide or multi-district elections. Again: in RCV, at least as widely practiced, an elector's final "vote" can be determined only after every ballot cast in that election is tabulated and each elector's ranked preferences are cross-checked and eliminated based on other electors' preferences. Each final vote turns on other voters' selections. So in a multi-town district or a statewide race, each town's election officials would struggle to count and declare "votes", the final outcome of the retabulation process, in an open meeting. They could only count and declare preliminary preferences.

This is not just a (significant) logistical concern. Logistics here are bound up with the background assumptions that underlie our elections system. The framers and amenders of our constitution wrote with a specific type of election infrastructure in mind. It seems relatively unlikely that they left the door open for a kind of election that would be at the very least impracticable given the localized election system they knew was in place across the state. The conflict between the Count and Declare Provisions and the state's election infrastructure is probative of the framers' underlying intent, a key consideration in interpreting our state's constitutional provisions.

I weigh that conflict heavily, and think that courts would, too, because I found little countervailing evidence. There are no other indicia of drafters' intent. As with the Plurality Provisions, no Connecticut or federal court has considered the question. Among state courts, only the Maine Supreme Judicial Court has spoken, if briefly, to a similar issue, which it described as merely "logistical." Senate v. Sec'y of State, 183 A.3d 749, 759 (Me. 2018). But that logic is not persuasive in the Connecticut context, where the problem is not just logistical but also substantive, going to the framers' intent.

Other Possible Challenges

In closing, I briefly consider two other challenges to RCV. Both contend that RCV violates federal and state constitutions because it supposedly gives some people more votes than others. But courts have rejected these challenges, and I conclude that Connecticut's would, too. The Connecticut Constitution does not appear to provide materially different protections than the federal constitution here, so I see no reason that a different result would be warranted under Connecticut law.

The first challenge contends that RCV effectively allows some people to vote more than once. Suppose Jack's ballot ranks (in order of preference) Candidates A, B, and C. Jill's ballot, meanwhile, ranks Candidates C, B, and A. If Candidate A is eliminated after the first round of tabulation, the argument goes, then Jack effectively gets to cast a second vote for Candidate B. But Jill still casts only one vote, for Candidate C.

Courts disagree, and so do I. The Ninth Circuit concluded that the argument "mischaracterizes the actual operation" of RCV because "the option to rank multiple preferences is not the same as providing additional votes." Dudum v. Arntz, 640 F.3d 1098, 1112 (9th Cir. 2011). In RCV, the Ninth Circuit explained, "each ballot is counted as no more than one vote at each tabulation step . . . 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 constitutionally important question is whether voters have an equal opportunity to cast a vote. In RCV, they do.

Another version of the inequality argument contends that RCV deprives some people of the vote. Suppose Jack's ballot ranks, in order, Candidates A, B, and C. Jill lists Candidate C as her first choice, but lists no other candidate. If Candidate C is eliminated after the first round of tabulation, then Jill's ballot is "exhausted." The second round of tabulation effectively becomes a two-candidate race between Candidates A and B. Jack's vote for Candidate A will be counted, while Jill's vote for Candidate C is simply not counted at all in the second round. So, RCV opponents argue, Jack has more votes counted (1) than Jill (0).

But courts rightly reject this argument, which again mischaracterizes RCV. To quote the Ninth Circuit: "'Exhausted' ballots are counted in the election, they are simply counted as votes for losing candidates, just as if a voter had selected a losing candidate in a plurality or run-off election." Dudum, 640 F.3d at 1110 (emphasis in original).

Conclusion

This is a close call. But I must conclude that legislation implementing RCV in state general elections would not pass constitutional muster absent a constitutional amendment. I trust this opinion responds to your request.

Very truly yours,

WILLIAM TONG