Legal Issues with regards to IRV by Bob Dick

This is an email received by Pierce County Charter Review Commission chair Bertie Enslow with regards to the legality of amending the Charter to use IRV to elect county level officials.


You asked us to respond to questions posed by Commissioner Haughton whether the County Charter may implement provisions that would be different than general state election laws regarding elections of county officials, and adopt instant runoff voting. Commissioner Haughton has not yet provided a draft proposal, but his e-mail suggests that the type of voting which he proposes for inclusion in the County Charter is described in Chapter 29A.53.030 as available in a pilot project in Clark County for the City of Vancouver, if the City Council so chooses.

Under Article XI, Section 4 of the Washington Constitution, it is our opinion that County Charters may include provisions for election of strictly county elected officials which do vary from applicable general law (except for the prosecuting attorney, judges and superintendant of schools). Though Article XI, Section 5 is much more limiting for counties which do not have charters, Article XI, Section 4 specifically provides that for charter counties, the limitations of Section 5 (and other specified sections) do not apply. Accordingly, it is our opinion that for strictly county officers (excluding the prosecuting attorney, judges and superintendant of schools) a Charter may include instant runoff voting, even though it conflicts with general law applicable to all other elective offices.

Our opinion is not a recommendation for such a procedure, and the Commission will want to gather much testimony upon the appropriateness and cost of using such a procedure, before proposing it, particularly where, as here, each election at which IRV could be used will also have on the same ballot the completely different method of electing all of the other elective officials of the state, county and other applicable political subdivisions of the state, unless or until general state law adopts IRV for all races. You will also wish to gather for consideration evidence concerning the ability of the public to select from among a large number of candidates without any winnowing process which primaries provide to reduce the number of candidates which voters must study to a number about which they can gather enough information to make an informed decision. Other issues with which you must wrestle if you consider use of an election device which does not use primaries, is the extent to which it will require candidates to make large media campaign expenditures to help the voting public distinguish them from a large number of other candidates for the same office. Washington election officials may be able to testify about the extent to which IRV would pose cost, confusion, or conflicts with general laws applicable to other races in the same election cycle. Out-of-state election officials who have implemented IRV would also be valuable, if you consider making a change for some offices while contrary laws remain effective for other elective offices.

If it is the desire of the Commission to do so, instant runoff voting using the pilot provisions authorized by state law for use in the City of Vancouver over a 7 year test period can be made applicable by county charter to the strictly county officials about whom Article XI, Section 4 permits county charters to affect elections by means other than general laws, even though those provisions were not intended to apply to county offices under the state law which you would adopt. The effect on county elections and the duration of the authority of such an incorporation would depend upon the language used in adopting those provisions.