Author’s note: A few weeks ago, I detailed why approval voting would be a risky venture for Seattle. Then, I argued that approval voting would start no sooner than ranked choice voting in Seattle, if voters chose it in November. This time: a voting-rights law firm examines the two options’ legality.
In November, Seattle voters will consider whether to stick with their status quo electoral method or switch to approval voting (AV) or ranked choice voting (RCV) for their primary elections. They may wonder what the odds are that either option will fall prey to court challenges.
Sightline retained a Seattle-based law firm with a wealth of experience in campaign finance, election, and voting law to examine the legality of the two systems and offer an opinion, based on an extensive reading of federal and state law and court decisions.
In short, the analysis concludes that
- RCV is safe from legal challenges;
- A state court could reject AV before it took effect under a provision in Washington’s election law;
- After it took effect, AV could be vulnerable to court action under the federal or Washington state voting rights act; and
- A court decision against AV does not seem likely but is possible.
The legal opinion, prepared by attorneys Jacob Harksen and Dmitri Iglitzin at the law firm of Barnard, Iglitzin, and Lavitt, reads, in part:
RCV has repeatedly withstood challenges brought against it based on state and federal law. Relative to approval voting, it is a known quantity, the legality of which is not seriously in doubt. Approval voting, in contrast, has been adopted by only two U.S. cities, and has not been subject to legal challenge in either. This means there are no cases evaluating approval voting’s legality. . . .
Approval voting applied to Seattle’s top-two primaries, as proposed by the November measure, might run afoul of the federal or Washington state voting rights act because it could
. . . allow a majority voting bloc to elect all of its preferred candidates, leaving non-majority voters no meaningful opportunity to elect their candidates of choice. Currently, a majority voting bloc can only advance one of its top two candidates in each primary to the general election, because voters only have one vote each. Under approval voting, the same majority bloc could choose both of the top two candidates in each race, if the majority was organized sufficiently, because each voter can vote for as many candidates as they choose.
Also possible, according to the firm’s analysis, would be a court rejection of AV even before it was implemented. Harksen and Iglitzin wrote:
. . . a different provision of Washington law may pose a more immediate threat to approval voting: a single sentence in the state’s law on primary elections prohibits voters from casting “more than one vote for candidates for a given office.” . . . [T]his law poses at least a potential risk to approval voting, but not RCV.
The analysis does not suggest that either type of court loss for AV would be likely. To the contrary, voting rights cases are hard to mount and win, and the sentence in state law that seems to ban AV has never been interpreted or called upon by a court.
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Still, AV faces at least a modicum of legal risk, while RCV faces none.
The full 14-page legal memorandum is available for download here.