July 23, 2001

Mr. John Steiner
City of Austin Law Department
Norwood Tower, 114 West 7^th Street                      Election Law Opinion HC-1
P.O. Box 1546
Austin, Texas 78767-1546

Dear Mr. Steiner:

     You have asked whether the City of Austin, a home-rule city with three-year terms, may adopt preferential voting. For the reasons discussed below, the answer is no.

As you described in your letter:

The method in question is variously known as "instant runoff," "alternative voting," or "preferential voting." It works like this: Instead of simply marking the ballot for their favored candidate for a seat, voters are asked to rank the candidates in the order of their choices by marking a "1" for their favorite candidate, a "2" for their second choice, a "3" for their third choice, and so on. The first-choice votes for each candidate are counted. If a candidate receives a majority of the first-choice votes, that candidate is elected to the seat. If no candidate receives a majority of the first-choice votes cast for the seat, the candidate receiving the lowest number of first-choice votes is eliminated from the count, and that candidate's ballots are examined for their second-choice votes. These votes are then assigned to the remaining candidates. The process is repeated until one candidate has a majority of the votes and is elected.

Letter, City of Austin, April 27, 2001, page 1.

           A Texas home-rule city has broad authority; however, the city charter cannot be inconsistent with state law. Tex. Const. art. II, § 5. Over the years, state law control over election procedures has increased, and the city charter's powers over elections have been somewhat narrowed. See Elec. Law Op. Sec'y State JH-3 (1992) (city charter cannot provide alternative ballot format, city charter elections cannot be inconsistent with Election Code, Election Code sets out mandatory ballot format) and cases cited therein, especially Vela v. State, 572 S.W.2d 128, 130 (Tex. Civ. App. -- Corpus Christi 1978, no writ).

         The Texas Election Code (the "Code") provides that cities over 200,000 in population must elect by "majority." The Code defines "majority" as follows:

§ 275.002. Majority Vote Required
To be elected to a city office, a candidate must receive a majority of the total number of votes received by all candidates for the office.

Tex. Elec. Code § 275.002 (Vernon 1986) (emphasis added).

        The Code further authorizes alternatives to a majority by-place system at Section 275.003(d):

(d) The city shall use the place system required by this section until the city establishes another system of election that is consistent with an election by majority vote.

Id. § 275.003(d) (emphasis added).

        Various "amicus" letters from other correspondents have argued that the word majority includes "preferential." We disagree. The term majority theoretically could include preferential majority, but the term majority as it has been used in the Code does not.

          Before the 1985 recodification, the former Article 7.16 of the Election Code read as follows:

Sec. 3. Whenever any home-rule city whose charter provides for election of more than one member of its governing body from the same list of candidates attains a population in excess of 200,000 inhabitants, not later than the 90^th day before the first regular election at which the provisions of this section are applicable, the governing body of the city shall assign a place number to each such position, identifying it by the name of the incumbent member at the time the designation is made; and thereafter one person to fill each such position shall be elected separately by place number until such time as the charter is amended to provide for some other method of election that is consistent with an election by majority vote.

Sec. 4. This law does not apply to any city whose charter provides for the selection of its officers by means of a preferential type of ballot or to any city whose charter requires that its officers be elected by majority vote and specifies the procedures for conducting a runoff election.

Act of May 30, 1951, 52^nd Leg., R.S., ch. 492, amended by Act of May 28, 1977, 65^th Leg., R.S., ch. 664 (repealed 1985) (emphasis added).

        In sum, in 1985, the language for preferential voting was deleted in the substantive recodification of the Code. The Code's general rule for runoff elections still provides at Section 2.022 that a conflicting outside law prevails. The question is then whether the word majority as used in the Code is broad enough to include the meaning of preferential voting, and whether the provision allowing outside law to provide different runoff procedures includes the "instant runoffs" of preferential voting.

       The Code Construction Act provides that words and phrases shall be read in context and construed according to common usage, but that words and phrases that have acquired a technical or particular meaning whether by legislative definition or otherwise shall be construed accordingly. Tex. Gov't Code Ann. § 311.011 (Vernon 1998). In construing a statute, a court may consider, among other matters, the legislative history, and common law or former statutory provisions, including laws on the same or similar subjects. Id. § 311.023.

       It is our opinion that the meaning of the word "majority", as the Texas Legislature has used it in the Code and as it has been interpreted by the courts, is majority in the "classic" or "traditional" sense, i.e., a majority vote consists of more than half of the original votes, as cast and not re-assigned by the voter's secondary or tertiary intent, and if no candidate receives more than half the votes, a runoff election is required. See Estrada v. Adam, 951 S.W.2d 165 (Tex. App. -- Corpus Christi 1997, no writ) (Tex. Const. art. XI, § 11 requires election by majority, mandamus action proper to compel runoff election). See also Tex. Op. Att'y Gen. JC-0293 (2000) (City of Elsa charter provided for plurality vote, art. XI, § 11 required runoff election per Estrada).

          The pre-1985 Election Code language spoke of majority vote or preferential voting, as if there were two different meanings, and preferential voting at the time was a viable alternative. In 1985, the Legislature deleted the preferential vote alternative, and re-codified the majority vote requirement and the authorization for "some other method," using almost identical language. We interpret "other method" to mean today what it meant under the former Code. An "other method that is consistent with an election by majority vote" was authorized immediately following the requirement of a majority by-place system, and in contrast to a separate paragraph concerning preferential vote. An example of an "other method consistent with majority vote" in lieu of by-place is election by single-member district. See Op. Tex. Att'y Gen. JM-179 (1984).

         Regarding the authorization for alternative runoff procedures, the current runoff procedures provide:

§ 2.021. Runoff Election Required

If no candidate for a particular office receives the vote necessary to be elected in an election requiring a majority vote, a runoff election for that office is required.

§ 2.022. Conflicts With Other Law

A law outside this subchapter supersedes this subchapter to the extent of any conflict.

Tex. Elec. Code Ann. §§2.021, 2.022 (Vernon 1986 & Supp. 2001).

         Former Article 7.16 of the pre-1985 Election Code also allowed for different runoff election procedures provided by home-rule city charters, and that rule was codified at the current Section 2.022 of the Code, which provides for the uniform procedure for runoff elections, except that the language was revised to allow any "outside law" to prevail. We agree that it is possible to take these sections out of context and argue that the authority for any outside law to supersede Subchapter B authorizes "instant runoff." However, we think it is clear in the previous Code that the language granting exceptions for runoff procedures applied to runoff elections required by the usual meaning of the majority vote requirement.

        Accordingly, we think that the language at current Section 2.022 allows for different runoff election procedures, (e.g., a different ordering time-frame or date), but not so different as to contradict the meaning of "majority" and eliminate a "runoff election," as those terms have been consistently used in both the previous and current Election Codes.

        We have reviewed the materials provided from several correspondents outlining arguments both for and against preferential voting, and thus far no one has addressed the question of the Texas Legislature's intent in removing the paragraph authorizing preferential voting in 1985.

         Recent legislation has underscored the current Legislature's view that within the Election Code, a majority vote requirement calls for a runoff election. In Senate Bill 79, 77^th Legislature, Regular Session, 2001, the two new uniform election dates in February and September are restricted to elections that do not require majority vote, because a runoff would create problems with upcoming authorized election dates, the March primaries and November general election, respectively. In 1999, Representative Maxey introduced House Bill 569, which would have authorized instant runoff voting; however, House Bill 569 did not pass.

         It has also been argued that other states allow preferential voting. A 50-state review is outside the scope of this opinion, but two examples will suffice from those state laws offered in support of preferential voting in Texas.

In Michigan, preferential voting is expressly authorized in the law.

117.3 Mandatory charter provisions.
Sec. 3. Each city charter shall provide for all of the following: (a) The election of a mayor, who shall be the chief executive officer of the city, and of a body vested with legislative power, and for the election or appointment of a clerk, a treasurer, an assessor or board of assessors, a board of review, and other officers considered necessary. The city charter may provide for the selection of the mayor by the legislative body. Elections may be by a partisan, nonpartisan, or preferential ballot, or by any other legal method of voting.

Mich. Comp. Laws Ann. § 117.3 (West Supp. 2001) (emphasis added).

        In California, the law provides that a city may elect its officers by whatever "proportion" the city chooses.

15450. A plurality of the votes given at any election shall constitute a choice where not otherwise directed in the California Constitution, provided that it shall be competent in all charters of cities, counties, or cities and counties framed under the authority of the California Constitution to provide the manner in which their respective elective officers may be elected and to prescribe a higher proportion of the vote therefor.

15452. The person who receives a plurality of the votes cast for any office is elected or nominated to that office in any election, except:

1. An election for which different provision is made by any city or county charter.

2. A municipal election for which different provision is made by the laws under which the city is organized.

3. The election of local officials in primary elections as specified in Article 8 (commencing with Section 8140) of Part 1 of Division 8.

Cal. Elec. Code §§ 15450, 15452 (West 1996 & Supp. 2001) (emphasis added). The California law is much broader, and if the Texas Legislature had chosen similar language in Chapter 275, we think the city could have adopted preferential voting.

         We would also point out that although preferential voting does indeed result in a mathematical majority, we cannot ignore the fact that by assigning legal weight to a voter's second, third, or fourth choice as if it were the voter's first choice in order to achieve a majority without a runoff, preferential voting changes the usual meaning of "votes received by all candidates" as well. Throughout the Code, there is an emphasis against subtraction of a voter's choice from the total used to determine the required result, even in seemingly obvious situations in which one of the candidates no longer desires the office, or is declared ineligible or is deceased. Tex. Elec. Code Ann. §§ 145.005, 145.035, 145.064, 145.065, 145.092, 145.094, 145.096 (Vernon 1986 & Supp. 2001) (after deadlines for removal from ballot based on withdrawal, death, or ineligibility pass, all votes cast are counted). Although preferential voting re-assigns the voter's votes by weighted intent and does not nullify that intent, we are nevertheless reluctant to read preferential voting back into the Code by administrative interpretation when the legislative context does not otherwise support that conclusion.

         In sum, it is our opinion that the language at Section 275.002 of the Code requires a majority vote for cities of over 200,000 population, and the term in the Code means majority vote in the classic or traditional sense, i.e., requiring a runoff if no candidate receives more than one-half of the (un-re-assigned) votes. The language at Section 2.022 of the Code allowing outside law to supersede Subchapter B authorizes different runoff election procedures, but it does not authorize the redefinition of "majority" or the elimination of a runoff election by using the "instant runoff" method of re-assigning the votes from the first election. Barring a conflict with the Texas Constitution, the Texas Legislature would need to amend state law, or to repeal the statutory conflict, in order to restore the city's discretion to adopt preferential voting.*

HC:AM:MB:id

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*We are not addressing the question of whether preferential voting satisfies the majority vote requirement of article XI, section 11. The Estrada court ruled that the Texas Constitution required a runoff, but the constitutional provisions were read closely together with the current Election Code, and the separate question of preferential voting was not before the court. The conflict in the state statute must first be overcome by amendment or removed. There are several ways this could be accomplished, and we think that the manner in which the conflict is overcome could affect the analysis of the constitutional question and whether a court would choose to follow Estrada. For example, if preferential voting were re-introduced into the Code, and if the Legislature further emphasized preferential voting as a new method of majority vote, the new law might have a greater presumption of constitutionality than other methods of overcoming the conflict.