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Lawmakers should seek SJC opinion on ranked-choice voting’s legality, review urges

Voters will decide on ballot Question 2 — Ranked-Choice Voting — in November.
Voters will decide on ballot Question 2 — Ranked-Choice Voting — in November.Bill Sikes/Associated Press

Massachusetts lawmakers should ask the state’s highest court to address whether the ranked-choice voting system that voters are being asked to approve this fall is even constitutional, according to an independent review of the November ballot initiative made public Tuesday.

Ranked-choice voting, as proposed in Question 2, would usher in a “dramatic shift” to Massachusetts elections, though many of its long-term ramifications — on everything from turnout to campaign spending — remain largely unknown, the Center for State Policy Analysis at Tufts University said in a newly released report.

Chief among those questions is whether it would survive a legal challenge.

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The question on November’s ballot proposes that voters, instead of choosing a single candidate for an office, rank their preferred choices in both primary and general elections for an array of races. The system, if approved, would apply to gubernatorial and state legislative races, for example, but not to presidential or municipal elections.

If a candidate in a race with three or more people gets more than 50 percent of the vote, he or she is the winner. But if no one does, the candidate with the fewest votes is stripped away, and his or her voters are reallocated based on their voters’ second choice. The process continues for as many rounds as it takes for one candidate to earn a majority of votes.

But there “may be a constitutional problem" should voters approve the system, according to the report, which did not take a position on the ballot question. The state’s constitution says that for state offices, the person “having the highest number of votes” is the winner — wording that creates a potential conflict with a ranked-choice system, where the person with the most initial votes may not necessarily win.

Should a legal challenge prevail, it could block ranked-choice voting from being used in general elections for state offices, according to the center’s report. Primaries and federal elections, it says, would not be affected.

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Attorneys and legal scholars have raised similar possibilities, given the Supreme Judicial Court has never directly addressed a ranked-choice system’s constitutionality on a statewide level.

The ballot question’s supporters are confident it’s legally sound, arguing that a ranked-choice system simply allows for a different process to count votes that, they say, would pass constitutional muster.

Nevertheless, "this uncertainty could lead to disruptive legal challenges, putting future elections in the hands of the courts,” the Tufts report states.

To avoid this, it urges state legislators to ask for an advisory opinion from the SJC, which could determine if it’s permissible to use ranked choice in general elections for state officials.

The Legislature has sought advisory opinions before, including in 2015 amid a squabble between the House and Senate over taxes. And it’s a path legislators took in Maine after voters there made it the first, and so far only, state to approve ranked-choice voting, though the state’s highest court ruled that general elections for state officials were ineligible because of language in its constitution requiring a “plurality” vote for those offices.

Evan Horowitz, executive director of the nonpartisan center and the report’s author, said even though the Legislature is in session, it’s unlikely lawmakers could get an opinion before November. But he said the Legislature should ask for one ahead of the 2022 elections, when, if approved by voters, the new system would go into place.

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“If you get an advisory opinion in advance, that would really diminish the chances of a chaotic end to election season,” said Horowitz, a former Globe reporter. “People will know what the norms are.”

The system, if implemented, could offer a variety of potential benefits, including helping ensure winners have broader support and reducing the impact of “spoiler" candidates, according to the report. Under such a system, results such as those in the Fourth Congressional District’s heated Democratic primary, where nominee Jake Auchincloss won with 22.4 percent of the vote, would be avoided.

“This doesn’t happen under ranked choice, where counting continues until someone gathers majority support,” the report states.

But beyond a potential legal challenge, there are risks, too. Should an election require multiple rounds of tabulating votes, results could be delayed. And there’s a dearth of evidence of whether such a system would help spur turnout or shift how money is spent in campaigns, according to the report.

“Switching to ranked-choice voting would add a level of abstraction to the voting process,” the report states. “This raises a risk that voters will feel unsure whether their ballot was counted properly — or even uncertain about the legitimacy of results as a whole.”


Matt Stout can be reached at matt.stout@globe.com. Follow him on Twitter @mattpstout.