I am strongly in favor of ranked choice voting in Virginia and am commenting specifically for the option in my home county of Botetourt. I believe it is a nonpartisan solution that would make elections less negative and reduce the risk of lesser-known candidates pulling votes from more popular candidates. 

I assume that you are developing more text than is now on view - I encourage you to look at the City of Cambridge (Massachusetts) mechanism for single transferable vote in selecting its School Committee and City Council.  Cambridge has eighty years experience in making this work, it's highly popular with the citizens there.  They dispense with any primary, going straight to the general - this should probably be local option in Virginia, but mechanisms to enable primary/no primary single transferable should be looked at.  I don't know whether these regulations would be the right place to work out a process for shifting from a staggered-term arrangement, like that in Arlington, to simultaneous election of several office holders, but if they are this should be considered.  

Reference 100-60. No one person should be able to create a ballot from another’s ballot. If this must be done need many eyes watching. This is an open invitation to fraud. Do not create the temptation. I am Secretary of EB in Isle of Wight.

I would only support rank-choice voting in primaries so the winner can say they won with a majority of the vote vs. a plurality.  Primary voters, in general, are more motivated and possibly more engaged than general election voters and there are fewer of them, so won't be rushed while filling out the complex ballot.  Virginia must avoid the mess that was in New York City.  The Republican Party of Virginia handled rank-choice voting in its unassembled convention quite well, so that may be a good model for Virginia.  Hand counting had this go on for days and I would not recommend that counting method in the state primary.

I served in municipal office for 10 years in Loudoun, four years on the Board of Supervisors and 6 on the Leesburg Town Council.   So, I ran in a multiple candidate ballot situation three times (vote for 1, 2 or 3) for Council and then Republican vs. Democrat for the Board of Supervisors.  I would not support rank-choice voting in multiple candidate ballots.  It could be very very confusing.

My preference is to do it for primaries not general elections and while we're at it, I wish we would have closed primaries.

Fine for a Primary.  Current voting system not broken, so what are advantages for wanting this change -- I need to be fully educated  on this process before making a final decision.

This will create extra training for Chiefs/Assistant Chiefs and the Officers of Election to make sure everyone understands this process.  Not to mention having to re-train the public on a new voting method.  This has a ring of "voter exclusion" to my ears.

What are the extra costs or new equipment needs effecting our budgets?

How about Legislators talking to their local Registrar before suggesting changes, please!

In the past two gubernatorial elections, there have been three candidates -- one from each of the Republican, Democrat, and Libertarian parties.  There have been others in previous years, but none of those ever get more than about 2% of the vote. 

The only place where RCV would have value is at the primaries where multiple candidates are vying to be on the ballot for their party. 

Rather than introducing "new and exciting" voting procedures, the legislature should focus on making the primary system in Virginia more efficient and accessible -- such as having primary voting over multiple days, and making it easier for individuals to qualify to be on the ballot.  Furthermore, all candidates for state office should be residents of Virginia who have resided in and filed state taxes for at least 2-3 years.  The interest in Ranked Choice Voting is a misguided focus on trendy "hip" topics and does not serve the public interest.

Introduction

I am submitting these comments on behalf of the Ranked Choice Voting Resource Center (RCVRC). RCVRC is a nonpartisan, nonprofit organization providing information, research, and tools to teach the public about ranked-choice voting. We have extensive experience with ranked choice voting (RCV) and have assisted efforts to implement RCV across the United States, from Alaska to Maine to New York City. We appreciate the opportunity to submit comments on proposed regulations 1VAC20-100-10 through 1VAC20-100-80 to implement § 24.2-673.1 of the Code of Virginia.

We are submitting this comment to propose a revised set of ranked-choice voting tabulation regulations, the full version of which is available below. First we describe the changes made to the proposed regulation, with some commentary on why these changes are necessary. After this description we include the full text of our revised regulation. Detail on the value and necessity of these changes is also covered in comments from RepresentUs, FairVote, Unite America, and the Campaign Legal Center. 

Major updates to the regulation are: 

• A rewritten definitions section (Section 10)

• More detail and an updated timeline in the RCV adoption section (Section 30)

• Clarifying the ballot treatment section (Section 40)

• Adding all relevant details of the round-by-round count for RCV elections (Section 50)

• Expansion of the outreach section, including example language for materials (Section 80)

Definitions

A number of changes are proposed to the definitions section. First, four new terms are added:

• Highest-ranked active candidate

• Surplus Fraction

• Transfer value

• Undervote

“Highest-ranked active candidate” provides clarity when describing the RCV round-by-round count, by specifying a term to refer to the candidate for whom a ballot should count in a given round of counting.  

“Surplus fraction” and “transfer value” provide necessary details for the proper administration of a single-transferable vote contest.

“Undervote” clarifies what should be reported as an undervote in any ranked-choice voting contest, given that voters can skip a ranking in an RCV contest but still have cast a vote in the contest. Drafters may wish to avoid using a term already defined in Virginia law, however, in which case we suggest the term “ranked-choice undervote.”

Second, eight definitions were updated. Some completely replace the prior definition, while others suggest minor updates to the text. 

• Updated definitions

  • Major updates

    • Active candidate (replacing continuing candidate)

    • Election Threshold

    • Overvote (was “defective ranking”)

    • Ranking

    • Round

  • Minor updates

    • Inactive ballots (was “exhausted ballot”)

    • Ranked choice voting

    • Surplus vote

Major updates

Active candidate (formerly “continuing candidate”), election threshold, overvote (formerly “defective ranking”), ranking, and round all have completely new definitions proposed. 

We suggest the term “active candidate” because this term was already used in the text of the regulation. The definition itself has been updated to clarify that an active candidate is one that has neither won election (applicable in a multi-winner/single transferable vote contest) nor been eliminated (in either single- or multi-winner contests). 

The “election threshold” definition now includes a precise formula for determining the election threshold in single transferable vote contests in Virginia. The proposed version of the regulation did not define any formula for determining the threshold. This threshold is a fundamental piece of defining how to conduct a ranked-choice voting election. See Dave O’Brien’s comment for more detail. 

We suggest replacing the term “defective ranking” with the term “overvote” to conform to practice in all other ranked-choice voting jurisdictions. Drafters may wish to avoid using a term already defined in Virginia law, however, in which case we suggest the term “ranked-choice overvote.”

The definition for the term “Ranking” now includes clearer language describing the term and an illustrative example of what a ranking is. 

“Round” has been updated for clarity and to include references to the provisions of the regulation where the RCV round-by-round count is described. 

Minor updates

We suggest replacing the term “exhausted ballots” with the term “inactive ballots.” Inactive ballots is the agreed-upon best practice term for the ballots described in that definition. Our revisions also include a reference to section 40(A), which details when and how ballots go inactive in the round-by-round count. 

The “ranked-choice voting” definition now refers to both instant runoff voting and the single transferable vote. The proposed definition referred only to instant runoff voting. 

The “surplus vote” definition now includes a reference to the term “election threshold.” This is because any votes over the election threshold are designated as surplus votes. This additional precision makes clear exactly how to determine how many surplus votes a candidate may have. 

Deleted definitions

Third, two definitions have been removed. 

We suggest removing “eliminated candidate” as the term itself is not used anywhere in the text of the regulation. 

We suggest removing “inclusive gregory method of reallocation” because our updated text instead fully describes the reallocation method to be used in ranked-choice voting elections in Virginia. If drafters still wish to include this terminology, the proper reallocation method to refer to is the “Weighted Inclusive Gregory Method.”

RCV Adoption

Section 30, called “Ranked choice voting” in the proposed regulation and called “Ranked choice voting adoption” in our revisions, covers procedures for how to adopt ranked-choice voting and which elections RCV applies to. Three primary edits are suggested for this section. First, we have revised the first paragraph of the section to more clearly lay out that jurisdictions may adopt ranked-choice voting for either primary or general elections. Second, we have changed the deadline for RCV adoption from 90 days before the election RCV is being adopted for to 180 days before the election in question. Third, we have expanded the terms governing when RCV does or does not apply to an election to more clearly indicate how many candidates must be in a primary or general election for RCV to apply. In addition, we suggest that subparagraph (D) could include a cross reference to the ballot design regulation co-published with this proposed regulation, but did not include that in our proposed revision. 

Ballot treatment

The Ballot treatment section, section 40, also has a suggested overhaul. The updated language more clearly defines how to handle various ballot errors voters may make and uses the updated terminology from the new definitions section. This section also includes a revised tie breaking procedure to handle ties between candidates to be eliminated using the standard methodology in ranked-choice voting jurisdictions. 

RCV Tabulation

We suggest significant updates to Section 50. Section 50 originally consisted of a single line referring to the Inclusive Gregory Method of Reallocation. As discussed in Dave O’Brien’s comment, however, this is insufficient for defining how to conduct a ranked-choice voting round-by-round count. In its place we propose a full explanation of the steps necessary to conduct both single-winner and multi-winner ranked-choice voting contests (also referred to as instant runoff voting and single transferable vote, respectively). This proposed update includes all necessary steps to conduct the round-by-round count in an RCV contest. Additional detail on these changes is available in FairVote’s comment. 

Election results

A single line has been added to this section requiring the release of cast-vote records when results are posted. This is standard practice in ranked-choice voting jurisdictions and provides valuable transparency to ensure voter confidence in the election. 

Outreach

A new subsection, 80(C)(2) has been added to the Outreach section. This new subsection provides for expanded voter education opportunities by listing additional locations and media through which to provide voter education.

Thank you very much for your consideration of our comments. We are excited to see Virginia join the growing list of jurisdictions that give voters the freedom to rank candidates. We are available to answer questions and provide the Board of Elections with any additional information necessary.

Sincerely,

Chris Hughes

Policy Counsel

Ranked Choice Voting Resource Center

Chapter 100 Ranked Choice Voting

1VAC20-100-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

1. “Active Ballot” means a ballot which counts towards an active candidate in the current round of counting.

2. Updated: “Active candidate” means a candidate who has not been eliminated or elected during a round-by-round vote count. 

3. “Duplicate ranking” means a voter has assigned one candidate multiple rankings.

4. Updated: “Election threshold” means the number of votes sufficient for a candidate to be elected in a multi-winner, single transferable vote contest. The election threshold equals the total votes counted for active candidates in the first round of tabulation, divided by the sum of one plus the number of offices to be filled, then adding one, disregarding any fractions. Election threshold = ((Total votes cast)/(Seats to be elected+1)) +1, with any fraction disregarded.

5. Updated: “Inactive ballots” are ballots that do not count for any candidate for any of the reasons given in section 40(A).

6. New: “Highest-ranked active candidate” means the active candidate assigned to a higher ranking than any other active candidates.

7. “Instant runoff voting” means no more than one seat in the office must be filled by the election. 

8. Updated: “Overvote” means an instance in which a voter has ranked more than one candidate at the same ranking.

9. Updated: “Ranked choice voting” means a method of voting which permits voters to rank their preference for candidates. Ranked choice voting is also known as instant runoff voting or the single transferable vote. 

10. Updated: “Ranking” means the number available to be assigned by a voter to a candidate to express the voter’s choice for that candidate. The number “1” is the highest ranking, followed by “2” and then “3” and so on.

11. Updated: “Round” means an instance of the sequence of voting tabulation beginning with 50(A) for single-winner, instant runoff voting contests or 50(B) for multi-winner, single transferable vote contests.

12. “Single transferable vote” means more than one seat in the office must be filled by the contest

13. Updated: “Skipped ranking” means a voter has left a ranking unassigned but ranks a candidate at a subsequent ranking.

14. Updated: “Surplus vote” means the number of votes a candidate receives beyond the election threshold set for a single transferable vote race.

15. New: “Surplus fraction” is a number equal to the quotient of the difference between an elected candidate’s vote total and the election threshold, divided by the candidate’s vote total, (or (V-T)/V, in which “V” is the elected candidate’s vote total and “T” is the election threshold), truncated after four decimal places.

16. New: “Transfer value” means the proportion of a vote that a ballot will contribute to its highest-ranked active candidate. Each ballot begins with a transfer value of 1. If a ballot contributes to the election of a candidate under subsection (b)2, it receives a new transfer value.

17. New: “Undervote” means a ballot that does not contain any candidates at any ranking in a particular contest.

1VAC20-100-20. Administration.

The Department of Elections shall publish on the department website, https://www.elections.virginia.gov, instructions on the administration of ranked choice voting elections. 

Updated: 1VAC20-100-30. Ranked choice voting adoption.

As prescribed by § 24.2-673.1 of the Code of Virginia a county board of supervisors or city council may elect by majority vote to conduct primary and/or general elections for its members by ranked choice voting.

1. Adoption to conduct an election by ranked choice voting must be enacted no later than 180 days prior to the date of the next such election.

2. Any locality that adopts to conduct an election by ranked choice voting must electronically transfer the signed ordinance to the Department of Elections promptly 

3. Primaries may only be conducted by ranked choice voting if there are three or more candidates who have qualified for the ballot for that contest. General elections may only be conducted by ranked choice voting when there are two or more candidates who have qualified for the ballot for that contest. 

4. Notwithstanding 24.1-613(E) all ballot forms for an election conducted by ranked choice voting shall comply with the standards prescribed by the State Board of Elections. 

New/Replaced: 1VAC20-100-40. Ballot treatment and tie-breaking.

As prescribed by § 24.2-673.1 of the Code of Virginia, ballots shall be tabulated in the following manner: 

1. INACTIVE BALLOTS AND UNDERVOTES. 

   1. In any round of tabulation in a contest conducted by ranked choice voting, an inactive ballot does not count for any candidate. A ballot is inactive if any of the following is true:

      1. It does not contain any active candidates and is not an undervote.

      2. It has reached an overvote.

      3. It has reached two consecutive skipped rankings.

   2. An undervote does not count as an active or inactive ballot in any round of tabulation.

2. Tie-breaking

   1. If two or more candidates are tied with the fewest votes, and tabulation cannot continue until the candidate with the fewest votes is defeated, then the candidate to be defeated shall be determined by lot. Election officials may resolve prospective ties between candidates prior to tabulation after all votes are cast.

New/Replaced: 1VAC20-100-50. Ranked choice voting tabulation.

1. SINGLE-WINNER TABULATION. - In any contest for one office conducted by ranked choice voting, each ballot shall count as one vote for the highest-ranked active candidate on that ballot. Tabulation shall proceed in rounds with each round proceeding sequentially as follows:

   1. If two or fewer active candidates remain, the candidate with the greatest number of votes is elected and tabulation is complete.

   2. If more than two active candidates remain, the active candidate with the fewest votes is defeated, votes for the defeated candidate are transferred to each ballot’s next-ranked active candidate, and a new round begins with paragraph 1.

2. MULTI-WINNER TABULATION. - In any contest for more than one office conducted by ranked choice voting, each ballot shall count, at its current transfer value, for the highest-ranked active candidate on that ballot. Tabulation shall proceed in rounds. Each round proceeds sequentially, until tabulation is complete, as follows:

   1. If the number of elected candidates or the sum of the number of elected candidates and the number of active candidates is less than or equal to the number of seats to be filled, then all active candidates are designated as elected, and tabulation is complete. Otherwise, the tabulation proceeds pursuant to paragraph 2.

   2. If any active candidate has a number of votes greater than or equal to the election threshold for the contest, that candidate shall be designated as elected. Each ballot counting for an elected candidate is assigned a new transfer value by multiplying the ballot’s current transfer value by the surplus fraction for the elected candidate, truncated after the fourth decimal place. The transfer value of each ballot cast for an elected candidate must be transferred to the highest-ranked active candidate on that ballot. Each candidate elected under this paragraph is deemed to have a number of votes equal to the election threshold for the contest in all future rounds and a new round begins pursuant to paragraph 1.

   3. If no candidate is elected pursuant to paragraph 2, the candidate with the fewest votes is defeated and votes for the defeated candidates shall be transferred at their current transfer value to each ballot’s next-ranked active candidate and a new round begins pursuant to paragraph 1.

3. SURPLUS TRANSFER. - If, in a round of counting conducted under subsection (b), two or more candidates have a number of surplus votes greater than the election threshold for the contest, the surpluses shall be distributed in rounds in which the largest surplus is distributed first, with any ties resolved by lot. The chief election official may modify the procedure to distribute surpluses simultaneously in the same round, provided that such modification is made prior to the election. 

1VAC20-100-60. Paper ballots.

For the purposes of this section, “paper ballot” means a tangible ballot that is marked by a voter and must be manually counted. 

In the event the general registrar receives a ballot that cannot be read by the ballot scanner machine, the general registrar or election official shall transpose the voter’s intent to a machine readable ballot. 

1VAC20-100-70. Election results.

Results for all rounds must be publicly posted on the Department of Elections website at https://www.elections.virginia.gov. Final cast-vote records for each contest must also be posted alongside round-by-round results.

1VAC20-100-80. Outreach.

1. For the purposes of this section, “educational information” means nonpartisan information that in plain language informs the public on the adoption of ranked choice voting for an election, a description of ranked choice voting, an unmarked official sample ranked choice voting ballot, and instructions on how to read and mark the ballot. 

2. The Department of Elections shall be required to post educational information about ranked choice voting on its website at https://www.elections.virginia.gov for the public.

3. Any county board of supervisors or city council that adopts to conduct an election by ranked choice voting shall develop and distribute educational information about ranked choice voting no later than 60 days before the specified election.

   1. Educational information must be disseminated to the public through circulation in the local newspaper, posted on the locality’s website, or mailed to active and inactive voters eligible to vote in the specified election.

   2. Educational information can also be distributed, to the extent practicable, through other means. Examples include, but are not limited to, disseminating mock ballots through existing community-wide mailings such as utility bills, and publicizing educational information in additional public places such as libraries and department of motor vehicle offices, and through the use of broadcast media and online sources, including ethnic media. 

   3. Educational information must be posted in the office of the general registrar and made available for distribution if requested by the public. 

   4. Educational information about ranked choice voting shall be posed in each satellite office and polling place operating for the election.

I am submitting these comments on behalf of RepresentUs. RepresentUs is a nonpartisan, nonprofit organization committed to protecting and strengthening American democracy. We have extensive experience with ranked choice voting (RCV) and have assisted efforts to bring RCV across the United States, from Alaska to Maine. We appreciate the opportunity to submit comments on proposed regulations 1VAC20-100-10 through 1VAC20-100-80 to implement § 24.2-673.1 of the Code of Virginia.

The promulgation of implementing rules is a necessary and welcome development, however the proposed regulations contain significant omissions that would seriously impair or even prevent the successful operation of RCV elections in Virginia. As a general matter, the proposed regulations don’t have any explicit tabulation procedures that instruct election administrators how to run an RCV tabulation. Rules implementing RCV should provide a clear, transparent, step-by-step process that offers administrators (as well as candidates, voters, the media, courts, and any other interested parties) specifics about things like how votes are transferred or when and how a candidate is declared elected, neither of which are directly addressed in the proposed regulations. Specificity about the basic, mechanical parts of the tabulation process is essential for both the practical administration of elections (from the vote count to any subsequent audits and recounts, and even post-election litigation if it comes to it) and the public’s understanding of, and trust in, the electoral process. This is why implementing rules and guidelines for RCV in states like Colorado (Rule 26 of 8 CCR 1505-1), New Mexico (1.10.14 NMAC), and California (Secretary of State’s Guidelines for Instant Runoff Voting in Charter Counties and Charter Cities, available at https://votingsystems.cdn.sos.ca.gov/oversight/directives/irv-guidelines.pdf) contain clear, explicit, step-by-step instructions for conducting an RCV tabulation. We therefore strongly recommend that the Board of Elections adopt or incorporate the proposed language submitted by Chris Hughes of the Ranked Choice Voting Resource Center in comments.

There are several crucial issues that the implementing regulations should address.

First, the proposed regulations don’t establish an explicit and comprehensive process by which candidates are eliminated and votes are transferred (or “reallocated”). Proposed regulation 100-50 establishes that the inclusive Gregory method should be used, however “the inclusive Gregory method” as commonly understood and as defined in the proposed regulations, applies specifically to the reallocation of surplus votes in multi-winner or “single transferable vote” (STV) elections. Reallocation also occurs in STV elections when there are no elected candidates with a surplus, in which case the last-place candidate is eliminated and votes for that candidate must be reallocated to the voter’s next choice. In single-winner or “instant runoff” (IRV) elections, there are no surplus votes and reallocation only occurs after candidate elimination, so the inclusive Gregory method wouldn’t apply at all.

Second, the proposed regulations don’t address what is necessary for a candidate to be elected. For IRV elections, this would be when a candidate receives the majority of votes on active ballots (some jurisdictions wait until only two candidates remain and declare the candidate with more votes the winner, but the outcome would be the same in either case). For STV elections, candidates are elected when they reach a predetermined election threshold. The proposed regulations mention the election threshold in definitions but do not establish how a specific threshold will be determined in an election. We recommend using the Droop method, which is common in places that use STV. Under Droop, the threshold is determined by taking the total votes counted for active candidates in the first round of tabulation, divided by the sum of one plus the number of offices to be filled, then adding one, disregarding any fractions, or ((Total votes cast)/(Seats to be elected+1))+1. For example, in a four seat election where 1,000 votes were cast, the election threshold would be 201 votes (since ((1000/(4+1))+1 = 201). Without providing a specific threshold formula in the regulations, election administrators won’t have any way to determine what the threshold is for a particular election or recognize when a candidate has crossed it.

We are also concerned by the specific method of breaking ties among last-place candidates proposed by the regulations. The standard practice is to eliminate tied candidates one at a time, until the tie is broken and tabulation can continue (typically through a random draw). Eliminating all tied candidates simultaneously, as the proposed regulations do, is an unusual approach that could lead to counter-intuitive outcomes and undermine the purpose of RCV. For example, consider a scenario where three candidates, A, B, and C, are running for a single seat. Candidate A has 100 votes, candidates B and C are tied for last place with 80 votes each. 60 of candidate B’s voters have ranked candidate C next and vice versa. If only B is eliminated then C will have more votes than A and will be elected (or vice versa, if C is eliminated). But if they are both eliminated simultaneously, A will win even though most voters preferred B and C over A. We strongly recommend that the Board follow the standard practice among other jurisdictions that use RCV and adopt a method to eliminate candidates tied for last place one at a time rather than all of them simultaneously.

It’s unclear why 100-30(3)’s prohibition on the use of RCV in elections with fewer than three candidates is limited to primary elections. The same logic (that there is no point in ranking when there are only one or two candidates) would apply in general elections as well.

Finally, the adoption language in 100-30 appears to require local governments to continuously readopt RCV ahead of each election in which they wish to continue to use it (“The adoption for ranked choice voting shall only be valid for the election specified in the ordinance signed by the governing body.”). Requiring local governments to continuously decide how to run elections with as little as 90-days notice can make it unnecessarily difficult for administrators, voters, candidates, and potential candidates to prepare for upcoming elections. Administrators may need to know in advance what voting method to prepare for when devising an annual budget or developing training and educational materials for their staff and the voters. Those considering a run for office may need to know what voting method will be used when making their decision. Requiring a local government to determine the rules of an election ahead of each new election removes the consistency and predictability necessary to make those kinds of decisions. We recommend that a city or county’s adoption of RCV under these regulations be effective for all subsequent elections unless the city or county’s legislature affirmatively votes to stop using RCV. 

The proposed regulations are a positive step for RCV implementation, but they need revision, and we again recommend the Board of Elections adopt or incorporate the proposed language submitted by Chris Hughes of the Ranked Choice Voting Resource Center in his comments. This language has been developed in conjunction with some of the country's foremost experts on RCV and has been developed from the successful use of RCV in other jurisdictions. Thank you very much for your consideration of our comments. We are excited to see Virginia join the growing list of jurisdictions that give voters the freedom to rank candidates. We are available to answer questions and provide the Board of Elections with any additional information necessary.

Sincerely,

David O’Brien

Policy Counsel

Overall, I concur with the edits suggested by Mr. Chris Hughes.  In particular, I think it is important that the definition of "Active candidate" be updated to add the phrase "or elected".  Adding this phrase is necessary to account for multi-member races where a candidate who is elected in, for example, the first round of tabulation would not be an “active candidate” in any additional rounds that might be necessary to determine which candidates are elected to the other seats being filled.

I also concur with Mr Hughes that it is critical to include the details of how to tabulate in a multi-winner contest, rather than simply refer to a method of tabulation by its title.  Describing in detail how to determine the election threshold and how to calculate the transfer value of votes is critically important when introducing ranked choice in a multi-winner context, and deserves more detail.

I also concur with a previous comment suggesting that the definition of "round" add "continued" to the possible outcomes for candidates - "elected, continued or eliminated" - if this phrase is included in the final definition.  Again, in a multi-member contest a round of tabulation can result in any of these 3 possibilities for a candidate.

I look forward to seeing RCV used in those localities who decide to try it as I believe it holds great promise.

Washinton Post LTE I wrote: CommentID: 99721

As a former Fairfax County Democratic Committee officer and longtime party activist, I've been intimately involved in elections for much of my adult life, including my entire 13 years in Northern Virginia.  Relying on my experience with elections and voters, I hereby submit my informed opinion that ranked-choice voting (RCV), while well-meaning, is a bad idea.

The concept of RCV is to allow voters of underperforming candidates have a second "bite at the apple" to influence the outcome of an election.  This, on the surface, might appear to have some merit in providing equity where there are major imbalances of resources to reach voters among various candidates, that diverge from their substantive merits as candidates.

However, RCV has been applied sporadically in jurisdictions across the United States, and has demonstrated no improvement in the elections process, and in fact has proved problematic.

Voters are familiar and comfortable with accepting first-past-the-post winners, even where a victorious candidate earns only a plurality of votes.  There is no history of voters distrusting the legitimacy of an election where the top vote-getter fails to reach a majority.  Therefore, no "problem" exists needing to be solved.

Meanwhile, where RCV has been applied, voters are routinely confused and concerned about the value of their vote.  Will a first-choice vote be diluted by candidates who have few first-choices?  This in itself is unfair in the minds of many.  Further, the system can easily be manipulated by instructions by a candidate's campaign to the candidate's strongest supporters to decline to provide second-choices.  This dilutes the very purpose of RCV.

There simply is no reason to abandon first-past-the-post elections.

I therefore respectfully discourage adoption of RCV generally, and encourage regulations that only minimize its implementation in Virginia.

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

I am submitting these comments on behalf of Unite America. Unite America is a movement of Democrats, Republicans, and independents working to put voters first by fostering a more representative and functional government.

In general, I find the proposed regulations incomplete even with respect to vital basic issues like tabulation procedures and criteria for deciding winners.  As an example, I doubt that anyone would understand what is meant by the "inclusive Gregory Method of Reallocation" after reading the definition in the proposed regulation.  Furthermore, I cannot imagine how this method could possibly be implemented in a hand-counted multi-seat RCV election by local election officials nor am I aware of any certified tabulation software available to be employed as an alternative to hand counting. 

The fact that the issue of write-in votes is never mentioned I find to be a serious omission.  With the 10% threshold for resolving write ins in place this would seldom be an issue but there should be some acknowledgement of the possibility of write-in votes in RCV general elections and instructions provided on how they would be addressed especially when sufficiently numerous to trigger the 10% rule.

I am not an enthusiast for RCV but accept that it is worth a try in local elections, at least in primaries where no write-ins are permitted.  However, more work needs to be done before we are ready for RCV, particularly for multi-seat elections.  And voter education concerning ballot marking instructions as well as explanations of how the ballots are counted will be a major challenge.  I cannot imagine trying to explain to voters complicated issues like the Gregory reallocation method and the Droop threshold for determining winners.

I agree with the comments and editing suggestions by David O'Brien of RepresentUs and Chris Hughes from the Ranked Choice Voting Resource Center as well as those of G. Michael Parsons of FairVote.  And I share Mr. Bell’s concerns about allowing General Registrars to duplicate ballots that are unreadable by ballot scanners.

I am the Secretary of the Charlottesville Electoral Board.

The General Assembly enacted legislation in 2020 to allow localities to use a ranked choice voting (RCV) method for election of “county boards of supervisors and city councils,” Va. Code § 24.2-673.1. It further amended Va. Code § 15.2-705.1 to allow RCV as an option for the county manager form of government.

Numerous concerns have been raised about the necessity and benefits of the RCV voting process. The proposed Department of Election (ELECT) Regulations illustrate two of these concerns. First, the process is confusing for voters and complicated for election administration. Second, and perhaps most important at present, the RCV process lacks transparency and may compound the lack of confidence many voters have expressed in election administration. Third, the resources that ELECT and local election administrators expend in implementing this process detracts from efforts to facilitate voter registration and early and absentee voting, which are far more important goals. ELECT should focus on making voting easy and keeping vote counting simple – these proposed regulations do not advance those goals.

The proposed regulations discussed below illustrate some of the problems inherent in Ranked Choice Voting – the process is confusing and lacks transparency.

1. The definitions set out at 1VAC-20-100-10 are contradictory and circular: They provide that “ranked choice voting is also known as instant run-off voting.” “Instant run off voting means no more than one seat in the office must be filled by the election.” But “single transferable vote means more than one seat in the office must be filled by the election.” These definitions suggest that “single transferable voting” is not “ranked choice voting.” But the statute states in contradiction that: “’Ranked choice voting’ is known as ‘instant runoff voting’ when electing a single office and ‘single transferable vote’ when elective multiple offices.” 24.2-673.1A. The terms are confusing. The definitions are also confusing in that the statute refers to single and multiple offices, while the proposed regulations refer to one seat or more than one seat in an office.
2.  1VAC-20-100-40, Ballot Treatment, discusses review of ballots with defective rankings, including determining voter intent. What aspects of this process are to be conducted by hand? If the tabulation process is to be conducted by scanners, has ELECT evaluated costs and availability of necessary voting and tabulation software and hardware?
3.  1VAC-20-100-40.1, Ballot Treatment, provides that “a duplicate ballot ranking shall be counted unless the voter’s choice was eliminated.” Does this need to be clarified to state that it should be counted in the earliest round and only once?
4. 1VAC-20-100-50, Reallocation of Votes, states that: “Vote reallocation will be conducted with the Inclusive Gregory Method of Reallocation.” The definition section, 1VAC-20-100-10, helpfully provides: “‘Inclusive Gregory Method of Reallocation’ means vote counts are transferred fractionally. When a candidate wins a seat, votes for that candidate are reweighted, multiplying their current weight by the quotient of their surplus vote divided by their total vote.” At a time when many voters fail to understand which presidential candidate won the most votes in 2020, introducing complicated mathematical concepts to the simple process of vote counting does not serve the interests of voters (or election administrators). This provision also appears to apply only to multi-candidate races.
5. 1VAC-20-100-60, Paper Ballots, does not address the circumstances under which a “ballot must be manually counted.” Is that the same as the as an optical scan ballot being unreadable? Under what circumstances would be the ballot be hand counted and in what circumstances would the general registrar or election official “transpose the voter’s intent to a machine readable ballot.” Also, shouldn’t there be a requirement be for election officials of both parties to review such ballots?
6. 1VAC-20-100-70, Election Results – The final results should report the total percentage of the winning candidate as a percentage of the total votes cast. For example, in the recent New York Mayor’s election, the results were largely reported as the winner receiving 50.4 % of the vote, but that was only of the votes cast in the 8th Round. Review pf the total of number of votes cast (including “exhausted ballots”), shows that the winner received only 43% of the total votes cast.
7. IVAC20-100-80.B, Outreach – The Department should be careful about posting information on RCV because it is not available for most elections and may cause confusion among voters participating in normal elections. Local election board postings should be enough, and should make clear that only certain races are subject to RCV.
8. The regulations may also address the issue of voter confusion and tabulation difficulties that will arise when only the election for county board/city council is subject to RCV, and the remainder of offices on the ballot are elected by the normal process.
9. Are there provisions for write-in votes in this process and how are those tabulated?

Thank you for your consideration.

A few comments regarding Ranked Choice Voting:

1 – Previous elections in other states revealed high percentages of spoiled ballots due to lack of understanding by voters how to properly mark ranked-choice ballots.

2 – Currently, Virginia voting tabulators are not programmed to accept and properly count ranked-choice ballots. Virginia voting tabulator vendors have recently been required to increase security measures and pass multiple equipment tests, which have been quite costly. Switching to ranked-choice voting for some elections (primaries) would demand vendors to re-program tabulators and obtain re-certification for tabulators again.

3 – US Supreme Court ruling in Reynolds v Simms in 1964 stated “one man, one vote” however ranked-choice in essence is allowing a voter to vote for numerous candidates in each race.

4 – Ranked-choice may discourage voters from participating. For instance, if there are four candidates running and voter likes one candidate only, ranked-choice basically forces the voter to rank the other three candidates in order to be certain his/her vote is counted in the final total. If the voter’s choice loses in the first round and he/she did not mark choices two, three and four, it’s as if he or she never voted.

5 – How will the ranked-choice votes be tabulated? By precinct or by district? What about early voting and vote by mail ballots? Will they be tabulated separately or added to the corresponding precinct or district? General Registrars and staff are already working long hours during the election cycle; however, this would be an additional burden for them to tally ballot numbers and rankings accurately.

6 – What about provisional ballots? And emailed ballots which cannot be fed into tabulator? That would require all offices the ability to hand-tally the ranked-choice votes. Would they be added to the corresponding precinct or district total? Official results would be delayed for many days.

7 – If a complete hand-recount were called, tabulating the votes would be extremely taxing, difficult, time consuming and expensive.

8 – Educating voter registration staff and officers of election would take time. Having them uniformly educating voters at the polls or at an early voting site (particularly during the first one or two elections) would be a challenge and could cause upset voters and workers as well as long lines. A crash-course in educating voters could cause many voters to cry “disenfranchisement” due to not listening to instructions, mismarking ballot, becoming overwhelmed and not understanding ranked-choice voting.

9 – For many November elections, we would have local candidates with ranked-choice voting available and Congressional or state-wide candidates without ranked-choice voting. That would be confusing to many.

10 – At a time when much of the public (both Democratic and Republican) are concerned about votes being tallied correctly or not disenfranchising voters, it does not seem an appropriate time to test/implement a completely new system of tabulating votes.

11 – Prior to each election, all voting tabulators must pass L&A testing. In order to test all of the possible scenarios well would require MANY additional test ballots.

12 – The above concerns are not an exhaustive list.

As a voter in Arlington, we are looking at whether RCV (along with STV) might help the competitiveness of our elections, increase voter turnout, reduce character attacks, save tax-payer's money, improve diversity and quality of representation.  If, after public deliberation, some of these improvements are deemed possible and Arlington or any other polity in Virginia chooses to use RCV, then we really need to make sure the regulations are top notch.  I found the comments by G. Michael Parsons of FairVote, David O'Brien from RepresentUS, the Campaign Legal Center, and Chris Hughes of the Ranked Choice Voting Resource Center, to be extremely helpful and clear. I hope their comments will be substantially incorporated into the regulations so that if RCV is implemented anywhere in Virginia, it will be done as well as possible.  RCV is not new. It has been around more than 100 years and was used efficiently long before computers made this even easier.  Let us please learn from RCV experience elsewhere to ensure success if any polity chooses to use it in Virginia.

Ranked Choice voting is a terrible idea which make voting more complicated – the exact opposite of what we should be doing.

Advocates pushing for RCV constitute a small sliver of voters (frankly elitists) who, as Jay Reddy pointed out “want another bite at the apple” when they vote.  Those advocates say: “what can be complicated about ranking your choice of candidates?”  The answer is that there are a lot of complications, but the most important is the total lack of transparency since such a miniscule portion of the electorate would ever understand how the results were tabulated. 

Why would we want a voting system where a voter practically needs to be a mathematician to understand the consequences of their vote?  Everyone understands the concept of “whoever gets the most votes wins.”  Only a miniscule sliver of the electorate understands all the aspects of the algorithm that selects the winner in RCV. 

RCV has been repealed in jurisdictions when the electorate was surprised at the result and realized that it did not always operate as advertised.  RCV is also more complicated at the voting stage than advocates suggest as evidenced by the high number of spoiled ballots.  Those voters are disenfranchised - along with voters who choose not even to show up due to confusion over the system.

The irony is even most of the advocates don’t really understand how it works, they just believe they get to rank their candidates and that is all they care about.  They also seem to believe that RCV ensures a majority winner – even though it doesn’t unless it is mandatory that people rank all candidates, but mandatory ranking sends the number of spoiled ballots through the roof. 

But when it is not mandatory to rank all candidates, the system does not work as advertised and is subject to manipulation.  Furthermore, voters tend to vote randomly on many of the candidates using the “eenie meenie miney mo” method, which is no way to run an election.  With mandatory ranking, the system actually forces voters to randomly vote.

RCV does not take into the intensity of support, so it is not really possible to do an accurate ranking.  If there are three candidates and on a scale of 1 to 10, one is a 10, one is a 4 and one is a 1, RCV cannot accurately record those voter preferences.  In that case, depending on the choice of the voter, their vote could actually elect the one they rank #1.

The average voter (actually nearly all voters) would never understand that voting for their ideal candidate could actually make their least favorite candidate win in RCV – after all, it is advertised to do the exact opposite.  Of course, that fact is hidden in a complex non-transparent algorithm, so this fact isn’t widely known.

If someone votes for their most favorite candidate every time in a plurality system, they may be helping their least favorite candidate by “throwing away” their vote, but everyone understands that they get one vote and need to vote responsibly.  That is not the case with RCV.

It appears that the staff does not even fully understand the Gregory method or chose not to explain it detail because of its complexity.  Contrast that with how simple it is to describe how a winner is elected in a normal plurality election.  If you need a majority, hold a runoff.  A runoff is also simple to understand – and in a runoff you are actually assured to get a majority winner, something you don’t with RCV.

 The only way one can even attempt to make the case that RCV is easy to understand is if you don’t believe voters need to understand how the results are tabulated – but they must if we are going to have a transparent voting system.

Also, the idea that education on the process needs to start 60 days before the election is also not realistic.  It would take at least a year to publicize and even attempt to educate people on the system.  Even then, probably at least 25% of the electorate would have some degree of confusion at the polls.  Of the ones who do understand how to rank the candidates, possibly 99% of them would still not completely understand how their votes will be tabulated nor the implications of their vote.  Conversely, 99% of them WOULD understand how their vote would be tabulated in a plurality system.

The complexity inherent in RCV makes it fundamentally non-transparent and make it a very bad voting system.  We should not be introducing more complexity into the voting process.  We also should not adopt a system where few people understand the implications of their vote as is the case with RCV.  Even advocates don’t really understand how it is counted.  That lack of transparency results in an undermining in the confidence of elections.

Simplicity and transparency of the results are critical attributes for any voting system, but especially in a time where there is such mistrust in our election system – mistrust that is based in part on a misunderstanding on how our very simple current system works.