Jim Bernstein, Chair

Minneapolis Charter Commission VIA E-MAIL

&

Minneapolis Charter Commissioners

RE: Proposed Revisions to the Minneapolis City Charter

Dear Charter Commissioners:

You have asked my office to provide guidance with regard to the City of Minneapolis’ ability to provide for Instant Runoff Voting and/or Ranked Voting methods by charter amendment. Instant Runoff Voting (a.k.a. IRV) is commonly known as a voting system wherein voters initially indicate weighted preferences for multiple candidates, and election officials subsequently apply procedures based on those weighted preferences to determine the winner of the election without having to hold subsequent elections. Ranked Voting (a.k.a. Borda Count) is commonly known as a voting system wherein voters indicate weighted preferences for multiple candidates, and the candidate with the greatest number of aggregate weighted votes is determined the winner of the election without having to hold subsequent elections.

Your request implicates two questions. The first question is whether the City of Minneapolis, procedurally, can provide for a new voting method by charter amendment. The answer to this question appears to be yes, and the controlling authority most on-point appears to be MINN. STAT. § 410.21 (2005). The second question is whether a new voting method will be constitutional under the Minnesota Constitution. The answer to that question is directly dependent upon what the specific new voting method is, but the Minnesota Supreme Court found preferential voting (a voting method similar to IVR and Borda Count) unconstitutional in the case of Brown v. Smallwood, 153 N.W. 953 (Minn. 1915).

MINN. STAT. § 410.21 (2005) states that "[t]he provisions of any charter of any such city adopted pursuant to [Chapter 410 of Minnesota Statutes] shall be valid and shall control as to nominations, primary elections, and elections for municipal offices, notwithstanding that such charter provisions may be inconsistent with any general law relating thereto, and such general laws shall apply only in so far as consistent with such charter." Currently, there aren’t any cases listed in the annotated version of Minnesota Statutes construing this section. The plain language of the section suggests that a home rule charter city may provide for the

19 INSTANT RUN-OFF VOTING TASK FORCE FINAL REPORT May 9, 2006

election of its municipal officers by charter provision. The plain language of the section also suggests that the home rule charter city can provide for the election procedure.

In Brown v. Smallwood, 153 N.W. 953 (Minn. 1915), the Minnesota Supreme Court considered a preferential voting system similar to IRV and Borda Count. The Supreme Court found the preferential system at-issue in Brown v. Smallwood to be unconstitutional, and stated that a preferential voting system generally would have to be implemented through a constitutional amendment. Id. at 957. The Supreme Court noted that the preferential voting system at-issue in Brown v. Smallwood violated Minn. Const. Art. VII, §§ 1 and 6 (1915). Id. at 955-956. [N.B. Minn. Const. Art. VII, § 6 (1915) is now Minn. Const. Art. VII, § 5 (2005)]. The Supreme Court addressed the concerns of a preferential voting system by stating the following:

The preferential system directly diminishes the right of an elector to give an effective vote for the candidate of his choice. If he votes for him once, his power to help him is exhausted. If he votes for other candidates he may harm his [first] choice, but cannot help him. Another elector may vote for three candidates opposed to him. The mathematical possibilities of the application of the system to different situations are infinite.

Brown v. Smallwood, 153 N.W. 953, 956 (Minn. 1915).

In conclusion, the City of Minneapolis appears to be able to provide for a new voting method by charter amendment pursuant to MINN. STAT. § 410.21 (2005), but the City of Minneapolis appears to be precluded from adopting a preferential voting system generally unless such a system is provided for by the Minnesota Constitution pursuant to Brown v. Smallwood, 153 N.W. 953, 957 (Minn. 1915).

Very Truly Yours,

Burt T. Osborne

Assistant City Attorney