Approval Voting Is Legal In Washington

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Plurality voting (left) vs. approval voting (right)

Approval voting is a voting system where you can vote for as many candidates as you wish. Above there’s a side-by-side comparison with the plurality voting system we typically use (left, black), vs. the approval voting system where the voter may support any number of candidates (right, orange).

Approval voting is an ideal way to eliminate the spoiler effect, and requires no changes to ballots or voting machines, other than removing the one-vote limit from the instructions. It is the absolute simplest reform possible, costing virtually nothing to adopt.

How We Know It’s Legal

Spokane already used Bucklin voting (like a hybrid of approval voting and instant runoff voting) for several years starting in 1911. See this archived image from Google Books.

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Bucklin voting results from Spokane’s March 7, 1911 election

Pierce County also adopted instant runoff voting (nowadays often called ranked choice voting even though it’s one of a multitude of ranked voting methods) in 2006, and first used it in 2008.

Neither of these two alternative voting methods required any special permission from state law of course, because things are generally legal unless specifically prohibited, not the other way around. And indeed, there’s nothing in the Revised Code of Washington (RCW) which specifically mandates the choose-one plurality voting method of casting ballots.

Top Two

The only major restriction on local voting procedures is the 2004 requirement for a primary followed by a top two general between the two candidates with the “most votes”. Per RCW 29A.36.170:

Top two candidates qualified for general election (as amended by 2013 c 143). (((̵1̵)̵)) For any office for which a primary was held, only the names of the top two candidates will appear on the general election ballot; the name of the candidate who received the greatest number of votes will appear first and the candidate who received the next greatest number of votes will appear second.

Since approval voting produces a simple sum of votes for each candidate, it can be trivially used to select two finalists instead of a single winner, making it compliant with the top two law. But the law arguably prohibits alternative voting methods which have no unambiguous notion of “most votes”, such as the Condorcet (condor-SAY) methods, STAR voting, and arguably the instant runoff voting aka ranked choice voting method previously mentioned.

Top “Two”?

Interestingly, due to the write-in provision in the WA elections code, there may actually be more than two candidates in the general, making approval voting useful for the primary as well as the general election. I.e. it’s not really a top two at all!

The Wrinkle

The only apparent wrinkle is RCW Chapter 29A.52 Section 161, which states:

Nothing in this chapter may be construed to mean that a voter may cast more than one vote for candidates for a given office.

For the sake of clarity, here it is in plain English.

Nothing in Chapter 52 requires municipalities to let voters cast votes for multiple candidates within the same race.

To state that even more simply: Chapter 52 does not mandate multi-select voting.

Yet some officials, such as Thurston County Auditor Mary Hall, have argued that Section 161 prohibits multi-select voting. She interprets “is not mandated” to mean “is prohibited”. Which is wrong.

The Confusion

Here’s where I think these officials are getting confused. Hall for instance seems to be confusing city rights with voter rights. We can highlight the distinction by comparing two hypothetical laws.

City Rights: A city may allow voters to cast votes for multiple candidates within the same race. (I.e. cities are allowed to use multi-select voting.)

Voter Rights: A voter may cast votes for multiple candidates within the same race. (I.e. cities are required to use to use multi-select voting.)

The above Section 161 in question just clarifies that Chapter 29 doesn’t enact the latter “Voter Rights” law. It doesn’t say that Chapter 29 prohibits the former “City Rights” law, as Hall’s misreading implies.

No-conflict Theory

Here’s a simple thought experiment. Consider that when Bucklin voting was adopted in Spokane, it was already the case that no chapter in the state law specifically said that a voter may cast multiple votes (i.e. multi-select voting was not mandatory). Now imagine if a section had then been added simply observing that, “Nothing within this entire Washington legal code may be construed to mean that a voter may cast votes for multiple candidates.” That would merely be a statement of existing fact, as indeed, nothing in WA state law specifically allowed voters to cast multiple votes (i.e. there was no mandate for multi-select voting). Obviously the addition of such an observational statement could not make Bucklin voting (or any other multi-select voting method) illegal.

Does the Constitution Ban Democracy?

To really drive the point home, it has been pointed out by legal scholars that nothing in the U.S. Constitution may be construed to mean that a citizen may even vote. Yet no one would claim the Constitution prohibits voting!

Intent

Okay, but one might ask why the need for this clarification if the intent wasn’t to prohibit multiple votes? For context, many U.S. municipalities conduct at-large elections, in which multiple candidates are elected at once, and the voter may therefore vote for as many candidates as are to be elected. It is conceivable that some voters could interpret the top two primary as a sort of two-winner election, and thus expect to be allowed to vote for up to two candidates, just like in an at-large election. Section 161 therefore seems intended to merely clarify that the top two law wasn’t enacting a multiple vote process akin to plurality at-large elections for its primary.

Bottom line is, if the intent had been to prohibit multiple votes, the authors could easily have written straightforward prohibitive language like so:

A voter may not cast more than one vote for candidates for a given office.

Instead they seem to have gone out of their way to write it as a mere clarification of what Chapter 52 does not say, rather than adding any new prohibitive statues.

One Vote

Lastly, what about the heading “One vote” at the beginning of Section 161? Well, that’s not part of the law that was enacted. It’s just a summary header. See the original law.

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Ranked Choice Voting

It seems pretty clear that the top two law is deeply incompatible with “ranked choice voting” (properly known as instant runoff voting), because the entire point of RCV is to simulate a runoff in a single round, which is illegal given the top two law. And further, RCV specifically does not necessarily elect the candidate with the most votes. The entire point is that it eliminates weak candidates and reallocates their votes, such that the ultimate winner could be someone who had the 3rd or even 4th most votes. And if you try to redefine “most votes” to mean “most votes after reallocation”, good luck in court. Approval voting not only avoids all this risk, but it’s actually generally superior to RCV. Approval voting is clearly the best fit for Washington’s current political situation.

Advocate of Score Voting and Approval Voting. Software engineer. Father. Husband. American.

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