The following is a guest post by Mike Parsons (Senior Legal Fellow at FairVote and Program Affiliate Scholar at NYU Law):

On Friday, the Alaska Supreme Court issued an unanimous decision that could provide a significant boost to efforts across the nation to adopt ranked choice voting.

Back in January 2022, the Alaska Supreme Court upheld Alaska’s Top Four system (which uses ranked choice voting in the general election) against a variety of different challenges. (Prior coverage is here.)  At the time, the Court issued a short order and stated that “[a] full opinion explaining this order will follow.” 

One of the arguments in the case was that ranked choice voting purportedly violated Art. III, § 3 of the state constitution, which provides: “The candidate [for governor] receiving the greatest number of votes shall be governor.”  Rick Pildes and I (along with Vic Fischer, the last living signer of Alaska’s constitution) filed an amicus brief in the case explaining why we believed this argument lacked merit and why ranked choice voting should generally be understood to comply with “plurality provisions” of this nature.  Our brief was based in large part on an article that Rick and I published in the California Law Review on the same topic: The Legality of Ranked Choice Voting.

Nearly 40 state constitutions include provisions that declare candidates elected to office if they receive “a plurality of votes” or the “highest,” “largest,” or “greatest” number of votes, so the stakes of this case for RCV were quite high.  Of course, Alaska’s state constitution doesn’t have any direct effect on cases outside of Alaska, but state courts commonly rely upon the reasoning of other states’ high courts when interpreting similar provisions in their own constitutions.  And the Alaska decision provides perhaps the clearest and most compelling opinion on this issue to date. 

Thus far, the only cases analyzing this question directly have been a 1941 case out of Massachusetts that suggested in dicta that RCV would comply with the state’s “highest number of votes” provision and a curt 2017 advisory opinion out of Maine in which the state’s Justices suggested that RCV would violate the state’s “plurality” provision.  (To this day, that is why RCV in Maine applies to federal and state races in primary elections, but only to federal races in the general election.)

The Alaska Supreme Court decision now offers a strong, thorough, and direct analysis – in an on-point case – explaining why RCV complies with the state’s “greatest number of votes” provision.  The opinion also resoundingly rejects Maine’s advisory opinion. 

Here are a few passages worth highlighting on the “plurality” question:

On the deferential role of the judiciary in evaluating electoral reforms: “If the people . . . want to try the system, make the experiment, and have voted to do so, we as a court should be very slow in determining that the act is unconstitutional, until we can put our finger on the very provisions of the Constitution which prohibit it.” (quoting Johnson v. City of New York, 9 N.E.2d 30, 38 (N.Y. 1937)).

On the purpose of plurality provisions (avoiding “failed elections”): “[R]anked-choice voting does not contravene the purpose behind article III, section 2: eliminating the risk of an election with no winner.  Except in the rare instance of a tie, ranked-choice voting will always produce a winning candidate . . .”

On whether RCV “requires” a majority to win: While the winner of an RCV election will always have a majority of the votes in the final round, the Court notes that it is technically possible for a candidate to win “with slightly less than a majority, but still the greatest number, of votes cast.” This is because “voters do not have to select second- or third-choice candidates.”  (A recent example of this is how 20% of Nick Begich’s supporters ranking Begich first and then declined to rank any second choice rather than choosing Peltola or Palin.)

On the Maine advisory opinion:

• “[T]he Maine Supreme Judicial Court did not explain why its constitution required the election to be called after ‘one round of counting.’ If 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.’ Instead that candidate is simply the candidate in the lead before the votes have been fully counted.”
• “[T]he Maine Supreme Judicial Court treated the result obtained after the first round of counting as if it were final, without pointing to any text in its constitution that requires votes to be counted in that way or that limits the way a vote can be cast or expressed.  The court discussed at length the history of the Maine constitution’s plurality provision and the state’s history of failed elections but did not explain how ranked-choice voting is any more likely to result in a failed election than single-choice voting.  The [Maine] court’s failure to pinpoint constitutional text, structure, or policies inconsistent with ranked-choice voting leaves us unconvinced by its analysis.”

On the meaning of the word “vote”:

• “[T]here is no question that a ranked-choice vote is a single vote. Rankings reflect alternative votes, not multiple votes. A vote may start with Candidate Alpha, then be redirected to Candidate Bravo, and then be redirected again to Candidate Charlie, but in the end a person’s vote will be tallied for no more than one candidate.”
• “Nothing in the Alaska Constitution prohibits voting in this way. The constitution does not define or limit the term ‘vote.’ Black’s Law Dictionary defines a vote as ‘[t]he expression of one’s preference or opinion in a meeting or election by ballot, show of hands, or other type of communication.’ A ranked-choice vote is an expression of preference that contains more information than a single-choice vote: I prefer Candidate Alpha best, but if Candidate Alpha cannot win, then I prefer Candidate Bravo to Candidate Charlie. Because a ranked-choice vote contains more information than a single-choice vote, it requires a more elaborate calculation to determine the winner. But it is still a single vote, cast by a single voter, that in the end is counted for a single candidate.”

Another argument in the case was that the “Top Four” primary structure separately violated parties’ associational rights under the state constitution.  Here, too, the Court provided a clear, direct, and persuasive analysis:

On the impact of open Top Four primaries on parties’ associational rights: 

• “[P]olitical parties do not have a right to control the State’s primary elections. . . . Initiative 2’s nonpartisan open primary places no burden on political parties’ associational rights precisely because it decouples the State’s election system from political parties’ process of selecting their standard bearers. . . . [I]t places no restrictions on how political parties go about choosing their standard bearers. . . . If a political party would like to choose the candidate that best represents its platform by primary election, caucus, or straw poll, it is entirely free to do so. The party can then throw whatever support it can muster behind that candidate’s election bid. The parties’ nomination process stands apart from the primary election, which serves merely to winnow the field of candidates to a manageable number for the general election.”
• “A candidate’s registration with a party certainly suggests that the candidate supports at least some of the party’s platform. But that is not what the ballot says; it presents only the fact that the candidate has registered as affiliated with the party. The ballot does not suggest that the party endorses the candidate. To the contrary, the ballot expressly disclaims any such endorsement.”

The whole opinion is exceptionally well-written and – as Rick has noted – seems likely to “become a major precedent for other state courts facing the same issue or issues