| Action | Ranked Choice Voting Regulations and Ballot Standards |
| Stage | Proposed |
| Comment Period | Ended on 8/9/2021 |
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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
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
“Active Ballot” means a ballot which counts towards an active candidate in the current round of counting.
Updated: “Active candidate” means a candidate who has not been eliminated or elected during a round-by-round vote count.
“Duplicate ranking” means a voter has assigned one candidate multiple rankings.
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.
Updated: “Inactive ballots” are ballots that do not count for any candidate for any of the reasons given in section 40(A).
New: “Highest-ranked active candidate” means the active candidate assigned to a higher ranking than any other active candidates.
“Instant runoff voting” means no more than one seat in the office must be filled by the election.
Updated: “Overvote” means an instance in which a voter has ranked more than one candidate at the same ranking.
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.
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.
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.
“Single transferable vote” means more than one seat in the office must be filled by the contest
Updated: “Skipped ranking” means a voter has left a ranking unassigned but ranks a candidate at a subsequent ranking.
Updated: “Surplus vote” means the number of votes a candidate receives beyond the election threshold set for a single transferable vote race.
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.
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.
New: “Undervote” means a ballot that does not contain any candidates at any ranking in a particular contest.
The Department of Elections shall publish on the department website, https://www.elections.virginia.gov, instructions on the administration of ranked choice voting elections.
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.
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.
Any locality that adopts to conduct an election by ranked choice voting must electronically transfer the signed ordinance to the Department of Elections promptly
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.
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.
As prescribed by § 24.2-673.1 of the Code of Virginia, ballots shall be tabulated in the following manner:
INACTIVE BALLOTS AND UNDERVOTES.
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:
It does not contain any active candidates and is not an undervote.
It has reached an overvote.
It has reached two consecutive skipped rankings.
An undervote does not count as an active or inactive ballot in any round of tabulation.
Tie-breaking
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.
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:
If two or fewer active candidates remain, the candidate with the greatest number of votes is elected and tabulation is complete.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Educational information must be posted in the office of the general registrar and made available for distribution if requested by the public.
Educational information about ranked choice voting shall be posed in each satellite office and polling place operating for the election.
