The following comments are submitted on behalf of FairVote. FairVote is a nonpartisan organization seeking better elections for all by researching and advancing voting reforms that make democracy more functional and representative. We are a leading national voice on ranked choice voting (RCV), with almost 30 years of work on the issue. We are grateful for the opportunity to provide comments on proposed regulations 1VAC20-100-10 through 1VAC20-100-80, implementing § 24.2-673.1 of the Code of Virginia.

The regulations proposed by the State Board of Elections require several changes to operate effectively. In particular, the regulations would be substantially improved by (1) updating the definitions section, (2) clarifying the RCV tabulation process with respect to vote transfers, (3) fixing the process for breaking ties, (4) providing greater detail on how to identify the winner of an election, and (5) clearing up the language describing RCV adoptions. To address all of these issues comprehensively, FairVote fully supports the language provided in the comments by Chris Hughes of the Ranked Choice Voting Resource Center (RCVRC). 

(1) Definitions. FairVote recommends the Board of Elections update the regulations’ definitions to align with the language provided by RCVRC. These suggestions provide a number of benefits. First, the RCVRC definitions eliminate a handful of internal contradictions, unused terms, and ambiguities found in the current proposed language. Second, the RCVRC definitions reflect language that has developed from decades’ worth of learning and experience. This helps reduce the risk of unexpected developments or inconsistent applications. Third, the RCVRC definitions reflect a more commonly accepted set of terms. This shared vocabulary can help facilitate information exchange and the proliferation of best practices and resources among jurisdictions that have adopted RCV, enabling election officials in Virginia to more seamlessly discuss, implement, and execute RCV.

(2) Tabulation Process. Virginia’s RCV regulations should establish a clear step-by-step process by which candidates are eliminated and votes are transferred. This process is essential to a successful RCV election. At present, proposed regulation 100-50 merely states that “[v]ote reallocation will be conducted with the Inclusive Gregory Method of Reallocation.”  This fails to provide adequate guidance and, in fact, may mislead those tasked with implementing it.  

To start, the fractional transfer discussed in the applicable definition only applies to multi-winner (or “single transferable vote” (STV)) elections; it does not apply to single-winner (or “instant runoff voting” (IRV)) elections. This means that the proposed regulation fails to offer any meaningful guidance on the reallocation of votes in single-winner, IRV elections.

Moreover, by using only a very general description of the vote transfer process in the definition of “Inclusive Gregory Method of Reallocation” in 100-10, the regulations proposed by the Board of Elections leave a number of critical multi-winner reallocation questions unanswered. Without further specificity, the proposed regulations create a risk that STV could be implemented in unpredictable or problematic ways.

To ensure that election officials have clear and complete guidance on how to conduct the vote reallocation process for both single- and multi-winner RCV elections, FairVote strongly recommends that 100-50 be replaced with the comprehensive language provided in RCVRC’s comment. This proposal provides plain language descriptions of the reallocation process for both types of elections and eliminates the need to refer to the “Inclusive Gregory Method” in the definitions section entirely.

(3) Tie-Breaking. FairVote shares the concern of RepresentUs regarding the regulations’ proposed method of breaking ties. As David O’Brien’s comments on behalf of RepresentUs clearly demonstrate, eliminating tied candidates simultaneously could lead to unanticipated and undesired results that would undermine the purpose of RCV. The standard practice—eliminating tied candidates one at a time—is the standard practice for good reason, and we hope the final regulations reflect that practice.

(4) Election Threshold. One of the primary functions of an election system is identifying winning candidates. Unfortunately, the proposed regulations as written do not specifically indicate what is necessary for a candidate to be elected. The definitions section states that an “election threshold” means “the percentage of votes a candidate must receive to guarantee to win a seat or remain within the election,” but the regulations do not provide guidance on what the percentage is or when/how it is met.

For single-winner, IRV elections, the threshold would be when a candidate receives the majority of votes on active ballots. For multi-winner, STV elections, different methods exist with different election thresholds. We recommend using the Droop method to define the threshold. The Droop threshold is determined by the formula ((Total votes cast)/(Seats to be elected+1))+1. David O’Brien’s comments for RepresentUs provide a helpful example: in a four seat election where 1,000 votes were cast, the election threshold would be 201 votes because (1000/(4+1))+1 = 201. The updated definitions and regulatory language provided by Chris Hughes on behalf of RCVRC fill out these vital details to ensure that administrators, candidates, voters, and media alike have a clear understanding of how to identify RCV winners.

(5) Adoption Language. The current language of 100-30 could be read to suggest that local governments must readopt RCV before every single election in which they wish to use RCV. Although this may not have been the drafter’s goal, the language should be clarified to ensure that, once adopted, RCV remains in place for all future elections until the local government affirmatively votes to stop using RCV. The purpose of the underlying statute is to facilitate and streamline the process for local governments to use RCV in Virginia, not to erect substantial hurdles to its adoption and implementation.  The revisions proposed by RCVRC clear up this language and provide election officials more time (180 days) to prepare to run an RCV election.

For all of these reasons, we endorse the analysis submitted by David O’Brien of RepresentUs and recommend that the Board of Elections adopt or incorporate the proposed language submitted by Chris Hughes of the Ranked Choice Voting Resource Center. As discussed above, RCVRC’s proposed language conforms with best practices from jurisdictions across the country and has been rigorously vetted by numerous organizations with expertise in RCV elections. 

Thank you again for the opportunity to submit these comments. We are available to answer any questions you may have and to provide additional information as requested.

Sincerely,

G. Michael Parsons

Senior Legal Fellow