New York City’s Ranked-Choice: Can NYC Bypass Albany and Unilaterally Change Its Voting System?

By Sacha Urbach

For progressives living in New York, the 2018 primaries felt like a long overdue bright spot during a time of uncertainty and unrest.  Letitia James became the first African-American woman to receive the Democratic nomination for New York State Attorney General, a position that Eric Schneiderman relinquished after revelations of a pattern of sexual violence.  Alexandria Ocasio-Cortez shocked the political world when she defeated incumbent Joe Crowley and pulled off the biggest upset of the 2018 primaries.  Of course, underlying all of this was the importance of this year’s primaries as the first step in a larger effort by Democrats to retake the House and rebuke President Donald Trump’s agenda.

Perhaps lost in all of this excitement, one aspect of this year’s primaries received far less coverage.  In Lowell, Massachusetts, the state’s fifth most populous city, Lori Trahan won the democratic primary for the district’s congressional seat after Niki Tsongas, the ten year incumbent, announced her retirement.  Ms. Trahan secured just 21% of the total vote in a crowded field of 10 democratic contenders, a far cry from a majority.  This, according to some, is just one example of a fundamental flaw in the predominant voting scheme used by the vast majority of cities and states in the United States.  Under winner-take-all electoral formats, a candidate only needs to secure a plurality of votes rather than a majority.  This has led to candidates winning and retaining seats in congress, governorships, and other important elected positions by securing a very low percentage of votes—far less than a majority.

The solution, according to groups like FairVote, is ranked choice voting (RCV).  RCV requires voters to rank candidates in order of preference, rather than picking only one candidate like they do in traditional winner-take-all systems.  If no candidate wins a majority of first-place votes in the initial round of vote-tallying, the last place candidate is eliminated, and the votes are redistributed.  This process continues until a candidate emerges with a majority of first place votes.  Proponents of RCV have hailed it as the solution to the issue of unpopular candidates winning by a plurality and as a purer form of democracy that better captures the preferences of voters.  Critics have argued that even under RCV, there can still be a plurality winner and that the added administrative expense required to educate voters and count ballots is not worth the purported benefits.

Maine became the first state to implement RCV this year, after calls for reforming the electoral system were spurred by the election and re-election of a deeply unpopular governor.  Several cities have implemented RCV as well.  San Francisco, for example, has used RCV in races for various city positions, including mayor, since 2004.  In New York City, there have been several calls to implement RCV in city elections.  While convincing voters that this is the wisest policy choice will be one challenge, RCV advocates in New York City also face an additional challenge.  It’s unclear whether New York City can act unilaterality in changing its voting laws to accommodate an RCV system, or if the City would need to seek approval from state legislators in Albany.  New York State’s constitution, like many states, contains a “home rule” provision, which delegates certain powers to cities and other local municipalities, similar to how the U.S. Constitution delegates certain powers (including regulating elections) to the states.  New York’s constitution allows cities like New York to pass laws “not inconsistent” with the state constitution, which generally means laws that don’t dip below the floor established by state law.  For example, a law that attempted to raise the minimum wage in New York City above New York State’s minimum wage was deemed inconsistent with state law, since it would have had to supersede state law that established a statewide minimum for hourly compensation.  There are other important factors courts have looked to when interpreting New York’s home rule provision, including legislative history and existing state regulation.

State courts have generally sided with New York City in issues surrounding unilateral election regulation.  For example, a city law regulating campaign contributions significantly more than state law, as well as a city law establishing term limits for various elected officials, have both survived judicial scrutiny.  However, these are small measures when compared to implementing a completely different methodology for choosing elected officials.  In the event that New York City chose to circumvent Albany in order to implement RCV, a court will need to determine whether or not the state constitution’s home rule provision allows a municipality to overhaul its voting scheme in what most would consider a pretty drastic manner.  For New York City, there is always the option of going through Albany and avoiding this issue altogether.  However, the state has often lagged behind the progressive goals of New York City.  Additionally, it’s very possible that Democrats in Albany might actually prefer to keep winner take all elections in place in New York City, as RCV creates opportunities for minority parties and candidates—on the right and on the left—to infiltrate New York City’s Democratic stronghold.  Whatever the course of action, proponents of RCV in New York City should prepare for a fight—both legally and politically.