                                    ATTORNEY GENERAL OF TEXAS
                                                 GREG         ABBOTT




                                                     March 4,2003



The Honorable Carlos Uresti                                        Opinion No. GA-0025
Chair, Human Services Committee
Texas House of Representatives                                     Re: Whether a home-rule                 municipality may
P.O. Box 2910                                                      adopt instant runoff voting             (RQ-0591 -JC)
Austin, Texas 78768-29 10

Dear Representative       Uresti:

        Your predecessor asked about a home-rule                       municipality’s          authority    to adopt instant
runoff, or “preferential,” voting.’

        Representative Naishtat indicated that in 2001 citizens and officials of the City of Austin
(the “City”) considered adopting instant runoff voting. See Request Letter, supra note 1, at 1.
He described instant runoff voting as a method that eliminates the need for an expensive runoff
election if no candidate has garnered a majority of the votes cast at an initial election:

                  [W]hen voters go to the polls, they rank candidates as to their first
                  choice, second choice, third, fourth[,] and so on. If a candidate
                  does not receive a clear majority of votes on the first count, a
                  series of simulated runoff counts are then conducted until one
                  candidate receives a majority. After the first count, the candidate
                  who received the fewest first place ballots is eliminated and his or
                  her second place votes reallocated to the remaining candidates.
                  All ballots are then tabulated, with each ballot counting as one vote
                  for each voter’s favorite candidate who is still in contention.
                  Voters who chose the now-eliminated         candidate [as their first
                  choice] have to support their second choice candidate-just       as if
                  they were voting in a traditional two-round runoff election-but    all
                  other voters get to continue supporting their top candidate.     This
                  process continues until a candidate receives a majority.2


         ‘Letter from Honorable Elliott Naishtat, Chair, Human Services Committee, Texas House of Representatives,
to Honorable John Cornyn, Texas Attorney General at 1 (Aug. 22,2002) ( on f IIe with Opinion Committee) [hereinafter
Request Letter].

         2For a sample instant runoff ballot, see http://www.fairvotevermont.ornlballot.pdf.
The Honorable    Carlos Uresti   - Page 2      (GA-0025)




Id. at l-2 (footnote added); see also, e.g., Tony Anderson Solgard & Paul Landskroener, Feature,
Municipal Voting System Reform: Overcoming the Legal Obstacles, 59 BENCH & BAR MINN. 16,
17-18 (Oct. 2002); Roberta A. Yard, Comment, American Democracy and Minority Rule: How
the United States Can Reform its Electoral Process to Ensure “One Person, One Vote,” 42
SANTA CLARA L. REV. 185,214-15 (2001).

         The Election Code (the “Code”), which “applies to all general, special, and primary
elections held in this state,” “supersedes a conflicting statute . . . unless this code or the outside
statute expressly provides” to the contrary.      TEX. ELEC. CODE ANN. 8 1.002(a)-(b) (Vernon
1986). To maintain uniformity in applying and using the election laws, the Code designates the
secretary of state as the chief election officer. See id. 9 31.003; Bullock v. Calvert, 480 S.W.2d
367,371 (Tex. 1972).

         Chapter 275, in particular, applies to elections for officers in a city with a population of
200,000 or more, such as the City. See TEX. ELEC. CODE ANN. 5 275.001 (Vernon 1986)
(regarding applicability); BUREAU OF THE CENSUS,U.S. DEP’T OF COMMERCE,2000 CENSUS OF
POPULATION: General Population Characteristics: Texas, City of Austin (population:          656,562),
available    at httn://www.factfinder.census.gov);        see also TEX. GOV’T CODE ANN.
5 311.005(3) (V emon 1998) (defining term “population” generally as “population shown by . . .
most recent federal decennial census”). Under section 275.002, “[t]o 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 ANN. 8 275.002 (Vernon 1986). Section 275.003 requires a city
with a population of 200,000 or more to elect officers by place until the city establishes another
system:

                          (a) When a city attains a population of 200,000 or more,
                 the city shall establish a system of electing its governing body in
                 accordance with this section if in the city’s general elections more
                 than one member of its governing body is elected from the same
                 set of candidates.

                         (b) Not later than the 60th day before the date of the first
                 general election held in accordance with this section, the city’s
                 governing body shall assign a place number to each position on the
                 governing body that is to be elected from the same territory as
                 another position, identifying it by the name of the incumbent at the
                 time the assignment is made.

                        (c) One person shall be elected to fill each position      for
                 which a place number appears on the ballot.

                          (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. 8 275.003.
The Honorable   Carlos Uresti - Page 3        (GA-0025)




         Once an election has been held, section 2.021 of the Code generally requires a runoff
election when no one “candidate for a particular office . . . in an election requiring a majority
vote” received a majority of the votes cast. Id. 8 2.021 (Vernon 1986). If a runoff is necessary,
“the authority responsible for ordering the main election” must order a runoff election.       Id.
9 2.024. “[Tlhe candidates in a runoff election are the candidates who receive the highest and
second highest number of votes in the main election or who tie for the highest number of votes.”
Id. 6 2.023(a).

         After considering a City inquiry regarding the legality of instant runoff voting, the
secretary of state concluded, in Election Law Opinion HC-1, that the City could not adopt instant
runoff voting. See Op. Tex. Sec’y State No. HC-1 (200 1) at 5. While acknowledging a home-
rule municipality’s   “broad authority,” the secretary cautioned that a city charter must comport
with state law, which requires election by a majority.              Id. at 1 (citing TEX. CONST.
art. II, 5 5). The majority vote requirement in sections 275.002 and 275.003(d) of the Code
“theoretically   could include preferential    majority,” the opinion continues, but “the term
[“majority”] as it has been used in the [Election] Code does not.” Id. at 2. Rather, “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 in tent.” Id. at 3 (emphasis added). The secretary of state believed that his
opinion was further supported by the 1985 repeal of a statute expressly providing for preferential
voting. See id. at 2-3; see also Act of May 13, 1985, 69th Leg., R.S., ch. 211, 1985 Tex. Gen.
Laws 802, 802. Representative Naishtat asked us to determine first whether the secretary of
state correctly determined the proper standard for resolving the preemption issue. See Request
Letter, supra note 1, at 3.

         The secretary of state articulated the proper standard for determining whether state law
preempts a home-rule municipality’s authority generally. As the secretary indicated, state law
preempts a home-rule municipality’s charter or ordinance if the state law and municipal law are
irreconcilably inconsistent.    See TEX. CONST. art. XI, 5 5 (prohibiting home-rule municipality
from adopting charter or ordinance that contains “any provision inconsistent               with the
Constitution . . . , or . . . the [state’s] general laws”); see also TEX. Lot. GOV’T CODE ANN.
5 5.004 (Vernon 1999) (providing that home-rule municipality operates under municipal charter
that has been adopted under article XI, section 5 of Texas Constitution).     To the extent a home-
rule municipality’s charter conflicts with a state statute, the charter provision is unenforceable.
See TEX. Lot. GOV’T CODE ANN. 5 5 1.072(a) (Vernon 1999). But a court “‘will not hold a state
law and a [home-rule municipality’s] charter provision repugnant to each other if [the court] can
reach a reasonable construction [that leaves] both in effect.“’ In re Sanchez, 81 S.W.3d 794, 796
(Tex. 2002) (quoting Dallas Merchs. & Concessionaire’s As&n v. City of Dallas, 852 S.W.2d
489,491 (Tex. 1993)); see also City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17,
19 (Tex. 1990) (“When there is no conflict between a state law and a city ordinance, the
ordinance is not void.“).

        Moreover, the secretary correctly declared that the Code preempts inconsistent home-rule
charter provisions.    See Op. Tex. Sec’y State No. HC-1 (2001) at l-2. The Code preempts with
“unmistakable    clarity” contrary home-rule municipality    charter provisions and ordinances,
The Honorable   Carlos Uresti - Page 4        (GA-0025)



except where the Code expressly permits a conflicting law. In re Sanchez, 81 S.W.3d at 796
(quoting Dallas Merchs. & Concessionaire’s Ass ‘n, 852 S.W.2d at 491); see, e.g., TEX. ELEC.
CODE ANN. $5 1.002(b), 2.022 (Vernon 1986) (stating that Election Code generally supersedes
conflicting laws).

        Representative   Naishtat also asked whether state election law preempts the City’s
adoption of instant runoff voting. See Request Letter, supra note 1, at 3. The secretary of state’s
opinion focuses on the statutory majority vote requirements. See Op. Tex. Sec’y State No. HC-1
(2001) at 2-3. By contrast, we believe that the statutory runoff requirements preempt an instant
runoff system.

         The Code plainly precludes a municipality        from adopting an instant runoff system.
Under the Code, in the event of a plurality vote in a home-rule municipality, the appropriate
official must order a runoff election. See Tex. Att’y Gen. Op. No. JC-0293 (2000) at 2 (citing
Estrada v. Adame, 951 S.W.2d 165, 167 (Tex. App.-Corpus Christi 1997, no pet.). Compare
TEX. ELEC. CODE ANN. 4 2.001 (Vernon 1986) (stating that, except as otherwise provided,
candidate must receive plurality vote to win), with id. 5 2.021 (requiring runoff in election
“requiring majority vote”).       The runoff election generally must be conducted between the
twentieth and thirtieth day “after the date the final canvass of the main election is completed.”
Id. 5 2.025(a) (Vernon Supp. 2003). Although in certain circumstances a runoff election may be
held after this prescribed period, see id. 5 2.025(b), in no circumstances does the Code prescribe
that a runoff be held simultaneously with the main election. The election officer’s duty to call a
timely runoff election where no candidate received a clear majority is “clear.” See Estrada, 95 1
S.W.2d at 167. Furthermore, a home-rule charter is not a law that can supersede section 2.021’s
runoff requirement.     See id. (concluding that home-rule municipality’s charter allowing election
by plurality did not prevail over runoff requirement).

         Representative  Naishtat suggested that section 275.003(d) may allow a home-rule
municipality to adopt instant runoff voting. See Request Letter, supra note 1, at 3 (summarizing
arguments of instant runoff voting proponents and secretary of state).         Section 275.003(d)
requires a municipality with a population of 200,000 or more to use the place system “until the
city establishes another system of election that is consistent with an election by majority vote.”
TEX. ELEC. CODE ANN. 0 275.003(d) (Vernon 1986).

         Section 275.003(d) does not apply here. Section 275.003 as a whole applies only to a
municipality that has recently attained a population of 200,000 or more: “When a city attains a
population of 200,000 or more, the city shall establish a [place] system of electing its governing
body.” Id. 5 275.003(a). Election “by place” generally denotes “the scheme of electing multiple
candidates from the same territory by assigning distinct ‘place’ numbers to as many positions as
are to be filled by the election.” Tex. Att’y Gen. Op. No. DM-122 (1992) at 2. As the secretary
of state has suggested, an “other method consistent with majority vote” for the purposes of
section 275.003(d) may be election by single-member district. Op. Tex. Sec’y State No. HC-1
(2002) at 3.

        The fact that the legislature deleted statutory references to preferential voting in 1985, as
the secretary of state has pointed out, lends additional, although not conclusive, support to our
The Honorable Carlos Uresti          - Page 5         (GA-0025)




determination.   See id. at 2-3. From the time of its original adoption in 1941 and its codification
in 1985, state law had excepted from majority vote and runoff requirements a municipality
whose charter provided for selecting local officers “by means of a preferential type of ballot;
provided that such city does not use voting machines as the legal method of voting.” Act of
Mar. 26, 1941, 47th Leg., R.S., ch. 80, fj 2, 1941 Tex. Gen. Laws 98, 99; see also Clancy v.
Clough, 30 S.W.2d 569, 573 (Tex. Civ. App.-Galveston             1928, no writ) (approving use of
preferential ballot in City of Houston’s primary elections); Tomlinson v. Williamson, 243 S.W.
287, 288 (Tex. Civ. App.-El Paso 1922, writ dism’d w.0.j.) (concluding that city charter
provision permitting voting by preferential ballot did not violate Texas Constitution article VI,
sections 3 -4). This preferential ballot provision disappeared without explanation when the
current Code was adopted in 1985. See Act of May 13, 1985, 69th Leg., R.S., ch. 211, 1985
Tex. Gen. Laws 802,802.

        We conclude that state law conflicts irreconcilably with, and thereby preempts, instant
runoff voting. Consequently, a home-rule municipality may not adopt instant runoff voting.3




          3We note that a bill was introduced to the United States House of Representatives    that would establish a
program under which the Federal Election Commission would “make grants to eligible States which have adopted an
instant runoff voting system for presidential elections.” H.R. 3232, 107th Cong., 0 3 (2001). The bill was referred to
the Committee on House Administration       in November 2001. See id.
The Honorable   Carlos Uresti   - Page 6      (GA-0025)



                                        SUMMARY

                         State law preempts a home-rule municipality’s adoption of
                instant runoff voting. A home-rule municipality that is subject to
                section 275.002 of the Election Code or article XI, section 11 of
                the Texas Constitution is not authorized to adopt instant runoff
                voting.    Instant runoff voting is irreconcilably inconsistent with
                statutes requiring a municipality, in the event no candidate receives
                a majority of the votes cast, to conduct a runoff election at a later
                date.

                                              Very truly yours,




                                              tAGrk4
                                                R G A BOTT
                                              Attorney&&era1 of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
