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Would Use of Ranked Choice / Instant Runoff Voting Violate the Nevada Constitution?

When the Nevada Election Modernization and Reform Act (NEMRA) was filed as Bill Draft Request (BDR) 1149 for the 2015 session of the Nevada Legislature, the Legislative Council Bureau (LCB) issued the following opinion:
“After researching the constitutionality of the BDR, we believe that the “instant runoff” system violates: (1) Section 4 of Article 5 of the Nevada Constitution, which requires that candidates “having the highest number of votes” be declared elected; and (2) Section 14 of Article is, which provides that a candidate wins an election by receiving a “plurality” of votes (rather than a majority of votes). The proposed instant runoff system violates these provisions because it prohibits a candidate who receives the highest number of votes from being declared the winner unless the candidate receives a majority (i.e., 50 + 1) of votes. (According to our research, a number of municipalities nationwide have implemented instant runoff systems, while other states have implemented instant runoff systems only in limited circumstances. In each of those instances, the constitutions for the states do not have analogous provisions that would have prohibited instant runoffs in the municipalities or in the limited circumstances that the states were using instant runoff for. California‘s original constitution from 1849 had a provision similar to the “plurality” provision of Section 14, Article is, but that provision was not retained when California adopted a new constitution in 1879.)”
This opinion resulted in the bill, SB 499, being introduced as a modified top-two non-partisan open primary. Following a hearingbefore the Senate Legislative Operations and Elections Committee, the original language of the bill was replaced with language extending the candidate filing deadline for minor party and independent candidates. That language was passed by both chambers of the legislature and approved by the governor. But does Ranked Choice / Instant Runoff Voting (RCV / IRV) violate the two referenced sections of the state Constitution? Probably not.
Section 4 Article 5 of the Nevada Constitution addresses the transmittal and canvassing of votes of the general election.  RCV / IRV is a process used to determine the candidate with the highest number of votes. The question is what constitutes a “vote”. According to a former director of the Legislative Counsel Bureau, language in the bill stating the ranking of candidates constitutes a “vote” for the purpose of Section 4 Article 5 and that the candidate who is determined to have the highest number of votes under the process is determined to have the highest number of votes under the meaning of Section 4 Article 5 should resolve the constitutional question.
Section 14 Article 15 is one sentence; “A plurality of votes given at an election by the people, shall constitute a choice, where not otherwise provided by this Constitution[.]” The constitutionality of RCV / IRV is being questioned because it is a common belief that RCV / IRV requires the eventual winner of an election to have received a clear majority of the total votes cast. This is not correct. Because ballots become exhausted before the final round of tabulation or some voters do not mark a second choice, RCV / IRV is in fact a plurality voting system.  The winner does have a majority of votes counted in the final round but not necessarily a majority of the total votes cast. This can be seen in the results of the 2014 election for Mayor in Oakland, California (63.2% final, 46.5% total votes cast) and the 2011 elections for Mayor in San Francisco, California (59.8% final, 43.4% total votes cast) and Portland, Maine (55.8% final, 45.9% total votes cast). A 2003 opinion by the Attorney General for the state of Texas also supports that RCV / IRV is not a majority voting system. Texas law requires winners of an election receive a majority of the total votes cast. The opinion prevented a city from implementing RCV / IRV because it does not meet this requirement.
I am currently working on getting NEMRA, either in its original form or slightly modified, back before the Nevada legislature in 2017. An important part of that process is addressing the concerns of the LCB. The above facts represent the start of that process.

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2004 and 2012 – Milestone Years In The Migration Away From The Major Parties

I was asked what the trend of Nevada voters leaving the Democratic and Republican Parties looked like over an extended period of time. When did the migration start? Here’s the answer going back to December, 2000.
In 2004, the Independent American Party (IAP) almost doubled in registrations jumping from 17,707 in December 2003 to 33,219 at the end of 2004. The IAP continued to increase registration, mostly to the detriment of the GOP. Was this an attraction to the more conservative platform of the IAP or were voters drawn by the words “Independent” and American? The answer really is not important. What is significant is that voters no longer identified with one of the major political parties.
Then in 2012, Non-Partisan increased by almost 33 percent over 2011 to 227,863. Migration away from the Democratic and Republican Parties continued. The GOP fell below 40 percent registration in 2008 and in 2014 the Democratic Party experienced the same fate.
2016 is a presidential election year. As the eventual nominees become known, it will be interesting to see if the trend away from the major political parties continues; note the changes in 2008 and 2012.

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As 2016 Campaigns Start, Democratic and Republican Parties Loose Percentage of Registered Voters While Non-Partisan Grows

With the first GOP presidential primary debates only days away, how will the campaign landscape impact voter registration? If the just released July, 2015 numbers from the Nevada Secretary of State’s office are any indication, the trend of voters leaving the two major political parties will continue.
Nevada’s active voter rolls increased by 8,098 over June, 2015. However, while all categories showed an increase in raw numbers, only Non-Partisan increased its percentage share. Of the 8,098 new voters, 37.2 percent chose not to affiliate with either the Democratic or Republican Party. (29.4% Non-Partisan / 7.8% minor parties) That number is greater than either the percentage who registered as Democratic (33.4%) or Republican (29.7%).
In Clark County, the increase in Non-Partisan registration far out-paced that of either of the two major parties; 1.11 percent versus 0.65 Democratic and 0.77 GOP. Non-Partisans now compose over 20 percent of Clark County active registered voters. Adding in minor party registrations, over 26 percent of active voters in Clark County choose not to affiliate with either major party.
Registration numbers in Washoe County show an even greater increase of Non-Partisan versus major party registration; 0.78 percent Non-Partisan, 0.4 percent Democratic, 0.3 percent Republican. 26.5 percent of active Washoe County voters (19% Non-Partisan, 7.5% minor party) now choose not to affiliate with the major parties.
A new demographic I’ll start tracking is the trend in the rural counties. Since January, 2015, growth of voters registered as Non-Partisan or to a minor political party is quadruple that of the Democratic or Republican party. Over this period Non-Partisan registration increased 2.9 percent and now represents 17 percent of the rural voter registration. Minor party registration also increased 2.5 percent. The Democratic party lost four voters and the GOP increased only 0.57 percent. Just under 25 percent of rural voters do not affiliate with either major party.
In the 18 – 34 year old demographic, the month over month increase of active voters registered as Non-Partisan or in a minor party doubled the growth of either the Democratic and Republican party; 1.8 percent (1.18% Non-Partisan, 0.62% minor party) as compared to 0.81 and 0.92 respectively. Just under 30 percent of voters in this group are now registered as Non-Partisan and the total not affiliating with either major party is approaching 40 percent.
Similar growth was also recorded in the 55 and over age group. Non-Partisan registration grew by 0.88 percent. Minor party registration in this age group increased 0.85 percent. Comparatively, Democratic registration increased by only 0.54 percent and GOP registration by only 0.6 percent. 19.2 percent of voters in this group, almost 44 percent of all active voters in Nevada do not affiliate with either of the two major political parties.

As the 2016 campaigns shift to high gear and voters’ interest increases, it will be interesting to see if voters continue to distance themselves from the two major political parties. Check back each month to find out. 
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Why Money Has Influence In Politics – Opinion

We hear it all the time. It is probably one of the most discussed issues in American politics; money and its influence.
Why does money have such power in our electoral and governing processes? (In a June, 2015 New York Times / CBS News Poll 84% believe money has too much influence) The answer is actually quite simple. The reason is staring at us from the mirror. We, the voters, allow it.
Power can be the result of position. Elected officials at all levels have power because of their office. A CEO or other person, who by title has supervisory responsibility over us at work, has power by nature of their position. But beyond this legitimate power, any power is granted, allowed to exist, only by those subject to that power. In other words, money has power because we acquiesce to it.
I admit that in the game of politics, getting the “message” out is how elections are won. This requires advertising which in turn costs money. But is money the issue or is it voters’ acceptance of the soundbites and talking points that are being used? Is the problem really our willingness to accept those, not demanding more substantial information and specific solutions from politicians? Does the root cause of the problem lie within us and not the system?
As the 2016 election cycle kicks into high gear, media attention appears focused on fundraising totals. What is reported determines who gets the attention. Media, whether a recognized news source, legitimate reporting, commentary, or blog posting, is determining who is considered a viable candidate. Higher fundraising totals begat more donations. Those at the lower end quickly loose column space and air time. Is money driving this or is it our willingness to accept the decision of others without question and much other information?
What would happen if voters, in addition to exercising their power of the ballot box, first demanded candidates provide and the media report how they will specifically solve the problems being faced by their constituents? What if voters exercised power of the purse and stopped “buying” soundbites, talking points, and irrelevant attacks?
In 2010, the Supreme Court granted corporations the same free speech rights as individuals when ruling in favor of Citizens United in Citizens United v FEC. Voters were told that those who could donate millions of dollars would now have the ultimate power in determining who runs all levels of government. Voters accepted this logic, reinforcing the concept that money has power, not realizing the only power money or those who control it have is that which is bestowed by the very voters who decry the influence. And here lies the root cause.
Look in the mirror. What is causing the person looking at you from deciding money will no longer have power over their political decisions? What is preventing the person looking at you from demanding the money being spent provides real information, information that can be used to make an informed decision on who to vote for? What is preventing the person looking at you from bestowing power to those who will make decisions based on the best interests of their constituents and not who will give them the most money?
Is money in politics the problem or is it us? Perhaps instead of looking at ways to reduce the amount of money allowed to be donated and spent, we need to look at ways to increase voter demand for more specific information. Voters need to get turned-off by talking points and learn how to express displeasure to those candidates who refuse to leave them behind. Do voters just not care or are they forced to accept what is being provided? If it is the later, then effort needs to be focused on how to change the mindset from having to accept what is provided to driving what is provided. Just as consumers drive the market, voters have the actual power to shape campaign and electoral processes. Money and those who control it have no power if voters do not grant it.
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Non-Partisan and Minor Party Registration Continues to Outpace Both Major Parties

Increases in voter registrations as Non-Partisan or as members of a minor political party continue to outpace increases of both the Republican and Democratic parties. For the month of June, 2015, data just released by the Nevada Secretary of State’s office show the number of voters registered as Non-Partisan increased 1.02 percent over May, 2015. The number of voters registered to one of the minor political parties also increased by 0.78 percent. For the same time period, Democratic Party registration only grew 0.47 percent and registration in the GOP increased only 0.55 percent. As a percent of total registered voters both the Democratic and Republican parties decreased while Non-Partisan and minor parties increased their share of registered voters. Over 26 percent of active voters in Nevada now choose not to affiliate with a major political party.
This trend is not only present in the state-wide numbers. In Clark County Non-Partisan registration increased by 1.09 percent and minor parties 0.76 percent while Democratic and Republican party registration grew by only 0.51 and 0.71 percent respectively.
Washoe County also saw similar numbers. Non-Partisan, + 1.02, minor parties +0.94, Democratic Party +0.49, GOP +0.40.
In the 18 – 34 year old demographic, active voters registered as Non-Partisan or in a minor party continue to outnumber both the Democratic and Republican parties; 37.6 percent compared to 33.7 Democratic and 25.1 Republican. Non-Partisan registration increased 1.13 percent compared to 0.64 for Democrats and 1.08 for Republicans.
Similar growth was also recorded in the 55 and over age group. Non-Partisan registration grew by 0.76 percent. Minor party registration in this age group increased 0.88 percent. Comparatively, Democratic registration increased by only 0.41 percent and GOP registration by only 0.49 percent. 19.2 percent of voters in this group, almost 44 percent of all active voters in Nevada do not affiliate with either of the two major political parties.
Nevada voters continue to be disillusioned with both the Democratic and Republican parties. I highly doubt this trend will change.

I am currently laying the groundwork to bring the Nevada Election Modernization and Reform Act (NEMRA) back to legislators with the hope of having it introduced again in the 2017 legislative session. I am convinced voters want lawmakers to collaborate and find the best solutions for problems facing our state and nation without regard for partisanship. I am convinced voters will support processes that encourage lawmakers to achieve that goal.  
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Election Related Bills in the 2015 Nevada Legislature – What Happened to Them

48 out of 1294 Bill Draft Requests (BDRs). 40 out of 1075 bills and resolutions. These numbers represent the legislation relating to elections dealt with by the just completed session of the Nevada Legislature. What was the outcome?
Five bills became law. Two of these were measures applying only to Carson City; If a candidate receives a majority of votes in the primary election for a non-partisan office, that candidate is considered elected and Clark County; requiring members of advisory boards in counties having a population of more than 700,000 to be elected. One changed expenditure reporting requirements and related matters. The other two bills could be considered major changes. AB 94 allows for sample ballots to be provided to voters via electronic means. This will save counties significant funds and brings the dissemination of information to a method preferred by today’s voters. AB 94 passed both the Assembly and Senate unanimously. SB499 extends the date by which third-party and independent candidates must file nomination petitions. This bill settles a law suit brought by the Green Party. By extending the date, it affords these candidates greater ballot access. (Note: SB 499 was originally filed as a modified top-two primary but stripped and amended in committee).
Seventeen bills were passed by committees in one or both chambers and died either on the floor or in Ways and Means / Finance committees. These bills dealt with everything from font size of print on election material to voter ID and presidential primaries. In addition to voter ID and presidential primaries other significant bills that died in this group included a constitutional amendment calling for the Governor and Lieutenant Governor to be elected as a slate, candidate residency requirements and increase penalties for violation of these requirements, and a requirement calling for voter registration workers to register with election officials.
The remaining eighteen bills did not receive a hearing in either the originating chamber or second chamber. These bills included issues on voter fraud and ID, ward voting in certain city primary elections, appointment of a reapportionment commission, a voters’ bill of rights, restoration of voting rights to felons, and appointment of school boards.

Looking at the 40 bills that were considered, many that died would have allowed Nevada to make significant improvements in its election process. Whether they died because of fiscal requirements, partisan divisions, or simply got caught up in the political gamesmanship that is a legislative session is hard to pinpoint. It will be interesting to see how many of these bills come back for the 2017 session and what happens to them then. 
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Did the Partisanship of the Nevada Legislative Session Impact Voter Registration

The Nevada Secretary of State’s office released the voter registration totals for May on June 2, 2015. The 78th regular session of the Nevada legislature was three-quarters through a session full of partisan bickering and a split GOP caucus. Party-line or near party-line votes appeared to be the rule rather than the exception in both committee and on the floor. (I’ll be posting a detailed analysis of this in the next few months)  Did the Partisanship of the Nevada Legislative Session Impact Voter Registration?
Due to registration rolls maintenance, Washoe County lost 16,575 voters, or 7.09%. In spite of this, the overall statewide numbers remained virtually unchanged, +306. Of the 1.193million active registered voters, 25.91% still choose not to associate with either of the two major political parties. This was an increase of 0.03% over April.
In Clark County all categories showed in increase in registration. This coincides with the increase of over 6,000 active registered voters. Registration as Non-Partisan saw the largest increase, 1.13%. The GOP followed with an increase of 0.77%, the Democratic Party registered an increase of 0.62% and the minor parties increased 0.42%
Among active voters 18 – 34 years of age, 23.6% of all active voters, only Non-Partisan showed an increase, 0.31%.  The GOP lost 0.11%, the Democratic Party lost 0.27%, and the minor parties lost 0.77%.  As has been the trend, 37.5% of younger voters choose not to affiliate with either major political party.
The largest and most active voters in the state are those 55 years of age and above. This group comprises 43.8% of active registered voters. 19.1% choose not to affiliate with either the Republican or Democratic Party; 13.9% are registered Non-Partisan. In May, this number increased by 0.49%, far outpacing the increases of the Democratic Party (0.08%), the GOP (0.16%), and minor parties (0.16%).
Did the Partisanship of the Nevada Legislative Session Impact Voter Registration or was May just a normal month, a continuation of the several year trend?  We are only twelve months away from the next primary election. How large a percentage of the active electorate will Non-Partisan and minor party affiliated voters encompass? How will the state deal with the issue during the 79thsession in 2017? Will legislators agree to again consider the Nevada Election Modernization and Reform Act (NEMRA)? I will be working towards that end. A positive step was taken when SB 499 giving slightly more time for minor party and Non-Partisan candidates running for partisan office to file their paperwork was signed by Governor Sandoval.

There is no sign that the trend of voters leaving the two major political parties will either end or subside. NEMRA will continue provide to tool for discussion.
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Facts Not Highlighted In Secretary of State’s Voter Registration Report

“Voter Registration Numbers Increase for All Parties in April
Posted Date: 5/1/2015
FOR IMMEDIATE RELEASE 
Contact: Catherine Lu, Public Information Officer
             (702) 486-6982 / 334-7953
             clu@sos.nv.gov 
(Carson City, NV; May 1, 2015) – All parties experienced voter registration number increases in April 2015, as shown by data released today by Secretary of State Barbara Cegavske’s Elections Division. The number of statewide registered active voters increased by 8,795 from the previous month. 

Of the 1,193,659 active registrants statewide, 39.39% (470,145) are Democrat, 34.73% (414,578) are Republican, 19.43% (231,939) are nonpartisan, 4.71% (56,206) are members of the Independent American Party, and the remaining 1.75% (20,791) are members of the Libertarian or other minor parties.” 

The Nevada Secretary of State’s office sent the above email today, May 1, 2015, announcing the voter registration figures for April, 2015.
NOT HIGHLIGHTED
As a percent of total active voters:
Democratic Party: -0.05%
Republican Party: -0.03%
Non-Partisan: +0.08%
Minor Parties: +0.01%
In total, 25.88% of active registered voters in Nevada choose not to associate with either of the two major political parties.
For younger voters, those between 18 and 34 years of age:
Democratic Party: -0.11%
Republican Party: +0.05%
Non-Partisan: +0.08%
Minor Parties: +0.02%
37.48% of 18-34 year-olds choose not to associate with either the Democratic or Republican Party, a figure 11.6% higher than the overall state total.
A modified version of the Nevada Election Modernization and Reform Act (NEMRA) as SB 499 did not get past its hearing in the Senate Legislative Operations and Elections Committee. The bill number survived as a bill to change the filing deadline for minor party candidates. That said, the trend of voters increasingly choosing to ignore the Democratic or Republican Party continues unabated.

The 2015 session of the Nevada legislature is in its last month, barring special session(s). Once everyone has had a chance to take a breath, I will resume working to bring NEMRA back to the 2017 session. These continuing voter registrations trends along with the highly partisan bickering of the current session answer the question; Why?
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SB 499 – Temporary End of the Road

Since September, 2013 the Nevada Election Modernization and Reform Act (NEMRA) and I have been traveling an exciting road. From meetings meant to determine if the concept was worth moving forward to meetings with legislators and group judging level of interest and support, there was never a dull moment.
February 16th, the last day for committee bill draft requests (BDR) the first milestone was achieved when the Senate Legislative Operations and Elections Committee filed a BDR. Then on March 23rd, the deadline for committee bill introductions, BDR 1149 became SB 499. Yesterday, April 1st, the bill had a hearing in the Senate Legislative Operations and Elections Committee. Following the hearing I was told the votes were not there to advance the bill to the full senate.
Yes, I am disappointed, yet at the same time accepting and grateful. Discussion of this important issue was stared. Some key legislators and groups expressed real interest. And getting a bill introduced and a hearing on such a major change was a significant accomplishment. This may be the end of the road for this session but it is not the end of the road for NEMRA.
Because of a state constitutional concern, the ranked choice / instant runoff provision had been removed and the bill became a modified top-two. The modification was that no more than one candidate from any political party or independent could advance. This would prevent two members of the same party or two independent candidates facing off in the general election, however, it also could mean a candidate finishing third or lower could advance. I had some concern about this change but accepted it since it meant having a bill that still achieved the two basic goals; opening the primary elections to all voters and ensuring the winner received a true majority of the votes cast, introduced.

So now, the hurry up and wait game of advocating and lobbying is in a time-out until the interim. The constitutional concern can be resolved; it’s an issue of interpretation based on the history and purpose of the plurality clause. I’ll be mapping out the best course of action and hopefully have NEMRA once again addressed by the 2017 Nevada Legislature. 
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NEMRA Becomes SB 499

On Monday, March 23, 2015 a version of the Nevada Election Modernization and Reform Act was formally introduced as a bill for the 2015 session of the Nevada Legislature.
SB 499, as it is now formally known, was introduced by the Senate Committee on Legislative Operations and Elections. The version to be considered, sadly, does not include the ranked choice / instant runoff voting component because of concerns of conflict with Article 15, Sec 14 of the Nevada Constitution which declares a plurality winner. 
However, the bill does improve the chances for minor party or independent candidates to advance to the general election. Under the top-two format in SB 499, two candidates from the same party cannot advance. This eliminates the possibility of two Democratic or two Republicans facing off in the general election. Minor party and independent candidates are relevant and viable candidates in the primary. Debate is not limited to two sides of the same story.

The next step is a committee hearing. I’ll keep you posted. 
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