State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.
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@jack-waugh said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
Note that the Approval winner has a plurality and the most votes, the highest number of votes, the largest number of votes, and the greatest number of votes.
Approval Voting provides equality of political power, one voter to another. This is key to defeating the two-party system. Moreover, it conforms to Wesberry vs. Sanders. So, choose-one and Hare are unconstitutional in the US.Approval voting is great but it is not as expressive as most other systems. Unfortunately expressive is sexy, which is why approval is not as popular as it should be.
How do you think Score rates in "constitutionality" compared to approval?
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@gregw I honestly think approval voting is one of the best footholds we have for moving forward with actual voting reform. Especially considering the language you reference in the constitutions, it fits the bill. It may not be perfect but it’s miles ahead of choose-one voting and would have dramatically positive consequences if adopted. While IRV is a flawed incremental change, approval voting would be a real game changer.
Score will certainly be more questionable than approval in terms of the constitutional language. I think these kinds of practical constraints are likely to focus reformer support for approval.
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@gregw said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
How do you think Score rates in "constitutionality" compared to approval?
Score Voting also conforms to Wesberry vs. Sanders, but not to the provisions you mention that require "plurality", "the most", etc.
Here's a tactic to make Approval have the same effect, in a large election (thousands of voters) as finer-grained Score. First, decide what your tactical Score vote would be. Normalize that to a scale from 0 to 1 and treat that number as a probability. Approve the candidate with that probability.
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@jack-waugh that will work if everybody does it. However, it’s likely that people will not go through with that unless they have the same kind of discipline it takes not to constantly check stock values.
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I'm not sure why these would pose a problem for score, as phrased. Under score, the candidate with the largest number of votes wins.
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@lime well, people who oppose reform (aka those in power) will find ways to concoct detailed arguments against the adoption of any reform proposal, and questionable constitutionality is a low bar.
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@lime said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
I'm not sure why these would pose a problem for score, as phrased. Under score, the candidate with the largest number of votes wins.
You are getting into dangerous rhetoric. If we say that score points are "votes", it will sound as though we are not "one person, one vote". A vote in Score assigns a score to each candidate.
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@Lime I agree with @Jack-Waugh. If we’re going to succeed in making any technical arguments then we will have to work with clear definitions and can’t afford to be loose with interpretations. It’s also dangerous territory to even bring up certain terms in the context of a legal argument, because terms that were previously undefined and may have left some room for interpretation are then liable to collapse into a narrower scope that sets a precedent. That means we have to be very careful, because if it gets screwed up once, it will be all that much harder to unscrew it in the future.
score-stratified-condorcet [10] cardinal-condorcet [9] ranked-condorcet [8] score [7] approval [6] ranked-bucklin [5] star [4] ranked-irv [3] ranked-borda [2] for-against [1] distribute [0] choose-one [0]
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@cfrank said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
If we’re going to succeed in making any technical arguments then we will have to work with clear definitions and can’t afford to be loose with interpretations.
Agreed! The "highest", "largest", or "greatest" criteria could be interpreted in differently in each state. State supreme courts tend to enforce the status quo.
This will sound weird, but could enacting legislation call for score voting, but have a provision to use approval voting if score is found unconstitutional?
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@gregw that’s a good question, I think that would be a contingency clause. I’m no lawyer and I don’t know much of anything about those or the limitations about how they can be structured.
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@gregw Legislation could be crafted that establishes Score Voting as the preferred method and Approval Voting as the default, but that will cast doubt on the constitutionality of score voting and make it easy for courts to reject. Instead I'd suggest splitting score voting into two separate pieces of legislation. The first would establish the score ballot format, and rules for filling it out. The second would cover tabulating score ballots and determining the winner.
No state constitutions have any language that set the ballot format, set rules for filling it out, or have any restrictions preventing the use of a more expression ballot. If would be difficult for the court to fabricate any justification for tossing out the ballot format. The vast majority of state constitutions contain language on tabulating ballots and determining the winner, and that was written without consideration of other alternate voting methods so it's awkward to apply to those situations. So it would be easy for the court the reject the second piece on tabulating ballots on some perceived conflict.If the court keeps the first and throws out the second they stick themselves with the task of interpreting how to apply the existing legislation for tabulating choose-one ballots to the task tabulating score ballots. The language doesn't fit the situation, so multiple interpretations are possible, but every one I've tried results in either score voting or approval voting. A judge faced with such a choice would be likely to just let score voting stand in its entirety. -
@k-shenefiel said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
Instead I'd suggest splitting score voting into two separate pieces of legislation. The first would establish the score ballot format, and rules for filling it out. The second would cover tabulating score ballots and determining the winner.
That is a very interesting strategy! As a ballot initiative, it may be difficult to get both measures approved for circulation, and a tough to sell to the voters, also, the legislatures might be tempted to repeal them.
However if this were done in the legislature you avoid those problems, except that you would need to show polls proving public support. Would the courts may be more likely to defer to the legislature than a ballot initiative?
No doubt that you no more about state constitutional law than I, so pardon me for getting off the subject and asking:
Would proportional representation require a state constitutional amendment in all or most states? -
@gregw said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
This will sound weird, but could enacting legislation call for score voting, but have a provision to use approval voting if score is found unconstitutional?
Yes, that's called a severability provision.
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@lime said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
(in reply to my question: This will sound weird, but could enacting legislation call for score voting, but have a provision to use approval voting if score is found unconstitutional?)
Yes, that's called a severability provision.
I agree severability would be the device. The question is can we get away with it? Has anyone used severability on a major feature of a state statute?
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@gregw said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
I agree severability would be the device. The question is can we get away with it? Has anyone used severability on a major feature of a state statute?
Yes, many state laws and include clauses specifying which parts are intended to be severable.
OTOH, jurisprudence has been very clear on rejecting the claim that "one person, one vote" means anything about how elections are conducted, other than requiring all votes to be treated equally.
The term comes from a Supreme Court ruling that congressional districts with different sizes (populations) are unconstitutional, because they egregiously violate the anonymity criterion. See Baker v. Carr.
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@lime said in State constitutions that require “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes.:
Yes, many state laws and include clauses specifying which parts are intended to be severable.
Good that using severability is not be legally controversial when changing state law. "If not Score than Approval" would be a legally reasonable provision in a voting reform law.
