For those looking for a break from virus-related election issues, Michael Parsons and I have posted on SSRN this article, titled The Legality of Ranked-Choice Voting. The reason for the question we address is explained in this abstract for the piece:

With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that creative incentives for candidates and officeholders to appeal to broader coalitions.  A centerpiece of these efforts is ranked-choice voting (RCV).  Voters in Maine recently endorsed RCV for federal and state elections, and RCV is on the ballot this fall for federal and statewide offices in such diverse states as Massachusetts and Alaska.  Several large cities have adopted RCV in recent years, including Minneapolis, San Francisco, and Oakland.  Some reformers have also proposed that states move to RCV in presidential elections.

Yet RCV now faces an existential legal threat.  The Maine Supreme Judicial Court, the state’s highest tribunal, recently concluded that RCV violates the state constitution.  If that interpretation is correct, it would imperil RCV nationwide.  Nearly 40 state constitutions include provisions similar to that in Maine’s constitution.  These provisions declare that candidates are to be elected to office if they receive “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.  The Maine Supreme Judicial Court concluded that the multi-round tabulation process of RCV violates this type of provision.  Even in states without such a constitutional provision, state statutes often include the same requirement, which—if the Maine decision is correct—would prevent local governments from adopting RCV. 

This Article is the first to examine the history, context, and meaning of these widespread plurality-vote provisions.  This history reveals that many states initially required winning candidates to receive a “majority of the votes” cast, and that plurality-vote provisions came into being to replace these majority-vote provisions.  After comprehensively examining this history, as well as the purposes and context behind the adoption of plurality-vote provisions, this Article concludes that RCV is not inconsistent with these provisions.  In addition, two state constitutions, some state statutes, and proposed reforms to the voting rules for presidential elections require candidates to receive a “majority of votes cast.”  These majority-vote provisions pose different, more complex challenges for RCV.  This Article offers solutions to ensure that RCV does not run afoul of these provisions.  If Americans choose to adopt RCV for presidential, national, state, or local elections, state constitutions and statutes should not pose an obstacle to properly-drafted RCV legislation. 

We plan to submit this article to the law reviews in the August submission cycle.