Ranked voting on November ballots

[Updated Sept. 29 with additional information from interviews obtained at the Colorado SunFest 2024 Seminar held in Denver Sept. 27.]

Election Day is Nov. 5. Ballots to Larimer County voters will begin be mailed to domestic voters by Oct. 13. Over the next several weeks, the Estes Valley Voice will examine many initiatives that voters will see on their ballots. This article by Hank Lacey takes a deep dive into Proposition 131 which asks voters if they want to institute ranked choice voting in Colorado. The Estes Valley Voice will focus its election coverage on Colorado State and Larimer County elections. Please send us your Letters to the Editor and chime in on election matters, news@estesvalleyvoice.com. Thank you to the Associated Press for the use of its ranked-choice voting graphic.]

Centennial State voters will decide in November whether to require a form of ranked voting in almost all general election contests and to establish a single open primary in which candidates from any party or no party would be eligible to compete. 

If adopted, Proposition 131 would usher in perhaps the most significant changes to the workings of Colorado politics in the state’s history.

“I think that the electorate is hungry for change,” said Celeste Landry, the voting methods team co-leader for League of Women Voters of Boulder County. “And this is a change.” 

Landry was speaking in her individual capacity and not as a representative of LWV.

The proposed top-four open primary system would be identical to that used in Alaska. Voters in The Last Frontier use that method to choose nominees for state executive, state legislative, and federal offices. If adopted in Colorado, all voters would receive the same primary ballot and the candidates who finish first, second, third, and fourth, ranked by the number of votes received and regardless of party affiliation, would proceed to the general election ballot. 

Landry speculated that, if Colorado had used the top-four open primary this year, at least one party nominee probably may have entered the general election season as something other than a favorite.

“If you look at Lauren Boebert, if you look at that election [in CD-4], she would not be the only candidate on the ballot this fall,” Landry said “There would be at least two, probably three, Republicans and a Democrat on the ballot this fall if we had this system.”

One significant benefit of the top-four open primary, she continued, is that candidates would have to appeal to voters beyond their party’s activist base to be assured of a spot on the November ballot.

“The parties are totally opposed to this all-candidate primary idea,” Landry said. “What happens right now is you have this partisan primary and the extremists work to get their candidate elected. And there’s a low turnout primary.”

Kent Thiry, the former Davita, Inc. chief executive officer who is a principal driver of Initiative 131, is confident that the top-four open primary component of the measure will help to inspire politicians to find solutions to public policy problems. 

“This system allows you to govern because you don’t have to worry about getting primaried from the far left or the far right,” Thiry said in an interview with Estes Valley Voice. “Suddenly, ‘I can govern again.’ Right now so many of our elected officials govern out of fear because our primaries are so partisan that they know, if they actually cross the aisle and actually reach a common sense compromise, they’re going to be punished in the next primary.”

Primary ballots

If Proposition 131 were adopted, voters would not be limited to casting primary ballots only for those candidates from their own party. And Coloradans who are members of minor parties could vote in the primary.

“It lets every voter vote in the primaries, whereas now you have to be registered as a Democrat, a Republican, or an unaffiliated voter,” Landry said. “And then you have to choose one ballot. Here you won’t have to choose one ballot. You can vote on all of the candidates. So you could pick a Democrat for governor and a Republican for attorney general, for instance.”

Candidates could petition onto the primary ballot, or be chosen for that ballot by a party committee, to the extent now permitted by state law, but would not be able to gain a place on the general election ballot in that manner.

Alex Koplin, a previous president of League of Women Voters of Alaska, said that, in that state, voters have seemed happy with the top-four open primary system adopted in 2020. 

“The parties don’t have control of the primaries, the people do,” he said. “It allows for the ability to get more moderate candidates. They don’t want to attack another candidate because you might need that person. I think a lot of voters here really like that. They see less divisiveness than nationally.”

Anna Stout, a Grand Junction city council member and former mayor of that western slope city, agreed with that perspective. She believes Initiative 131 will empower voters who are not on the ideological extremes of either of the two major parties. 

“I live in a part of our state that has a reputation of having had pretty extreme political representation and I don’t think it represents the people who live in my community or my region or my district,” Stout said. “So much of what we have experienced here is a product of the extremism that is bred by these partisan primary systems that we have.”

Stout explained that many voters in the region “self-identify as moderate or independent or unaffiliated.” She thinks their views are not served by the current system. 

“That’s not reflected in the representation that we’ve had,” Stout said. “It’s not reflected in the candidates that come out of our primaries, as a general rule.”

Amber McReynolds, a member of the National Council on Election Integrity and a former Denver clerk and recorder, believes the current primary system does not encourage competition.

“If you look at the 2024 primaries, we had 26% turnout,” she said at a forum on Initiative 131 held Sept. 27 at the University of Denver. “Most of the seats in the state legislative bodies or in Congress are not in fact competitive, [so] the election is, in fact, the primary. Lauren Boebert basically had 10% of the electorate voting for her to advance to the general election for a very safe seat.”

“When we think about the voters, when we think about enfranchising them, we really have to make sure the voters have meaningful choices.”

California and Washington use a method akin to the top-four finisher variant. In those states the top two finishers in the open primary for statewide and federal offices move on to the general election. In Nebraska that top-two open primary system is used for state legislative races. 

According to Doug Spencer, a professor and expert on election law at the University of Colorado Law School, voters should not be concerned about whether an open primary system is legally problematic.

“If you do a top [four] primary, the purpose of that first round is not partisan but is a first stage,” Spencer said. “You’re not infringing on the party’s rights because you’re not running a partisan primary.”

The U.S. Supreme Court held in 2008 that a top-two open primary system like those used in the Golden State and the Evergreen State is constitutionally permissible. Spencer explained that the decision in Washington State Grange v. Washington State Republican Party would apply to the top-four open primary system proposed by Proposition 131.

After the top-four open primary determines the contestants in the general election for each office on the ballot, a form of ranked voting would determine the winner of that office. Landry explained that Proposition 131 would establish a type of ranked voting known as “single winner instant runoff voting.” 

The ranked voting system would apply to general elections for U.S. senators and representatives, governor, attorney general, secretary of state, treasurer, and members of both the University of Colorado board of regents and the General Assembly.

Voters would receive a general election ballot with a maximum of four options for each covered public office, since that is the number of candidates who move on from the primary. It is possible that, in primaries for some public offices, fewer than four candidates would choose to compete. If that happened the number of options on the general election ballot would match the number that appeared on the primary ballot. 

To cast a ballot, voters would then rank the candidates in their personal order of preference. “Your ballot starts as a vote for your first-choice candidate,” according to a League of Women Voters of Boulder County information pamphlet. 

Vote counting is done in rounds. During the first round, the candidate that receives the fewest number of votes is eliminated. In the second round, the second-choice preference of the voters who ranked that candidate first would be allocated. By the third and last round, there are only two candidates remaining in contention. The candidate that receives the most votes in that round is elected. 

“If your first and second choices are eliminated [in the first two rounds], your vote will count for your third choice in the last round,” Landry said. “And you’ll either help the winner, if your third choice wins, or you won’t, if your fourth choice wins.” 

Landry pointed out that voters would not be required to rank more than one option on the ballot. They could select one candidate as their only choice or rank fewer than four. 

“Instant runoff voting does not guarantee that a winner gets a majority of all votes cast in the election,” said the League of Women Voters of Colorado in an information sheet. “Because voters have the option not to rank all four candidates, some ballots end up not counting in the final round and become exhausted.”

The League of Women Voters of Larimer County supports Initiative 131

The League of Women Voters of Larimer County supports Initiative 131. “Due to the power of the backup choice, candidates are incentivized to run civil issues-based campaigning and to reach out to a broader base of voters, because not only does a candidate want to be a voter’s first ranked choice, but also to be a voter’s second ranked choice,” the organization’s website says. “Voters are free to vote their values without ‘wasting their vote,’ and more candidates are free to run without fear of ‘splitting the vote.’”

LWVLC’s publicly available statements on ranked voting also urge voters to consider that ranked voting “is not a threat to our political duopoly system, but it does open the political process to women, minorities, and third-party candidates.” 

Spencer emphasized that voters will want to recognize that it likely will take more than one election cycle for voters to become fully comfortable with ranked voting. His comments indicated, though, that LWVLC’s perspective may be correct and that the immediate payoff of a ranked voting system is more participation.

“On the practical side, there is higher turnout in places where ranked choice voting has been used, but there are also higher error rates by voters [and] higher exhaustion rates, where people don’t complete the entire ballot,” Spencer said. “Now the ballot is longer and so they exhaust their votes more frequently.”

The impacts of a ranked voting system also can vary among communities, including those characterized by diverse demographics.

“In neighborhoods that have lower educational attainment and income you see more ballots thrown out for overvoting, where people just filled it out the wrong way [and] put too many marks on the ballot,” Spencer said. “Over time, the equilibrium is that voters are able to do this without error. But at least in the first several elections ballot exhaustion and ballot rejection rates, they go up. On net, the political science literature, because turnout is increasing, there’s a consensus that more voices have a say.”

The legislature could delay implementation with four conditions

According to the text of Proposition 131, the proposal would take effect, if adopted, in 2026. But the Colorado General Assembly enacted in June a measure that would delay implementation until at least 2028. SB24-210 provides that four requirements must first be demonstrated. 

The first of those prerequisites involves use of a ranked voting system by cities or towns in various population ranges in at least three counties, with at least two of those counties having “a population of at least two thousand citizens or at least two and one-half percent of citizens” over age 18 “who speak English less than very well” and “who speak a shared language” at home. A third condition is that at least two of those counties have at least 2,000 or at least 2.5% “non-white active electors,” while a fourth proviso is that the secretary of state completes and certifies accuracy audits of each of the elections held in the various cities or towns.

Once all of those criteria are met, the new law states, and “before a primary or general election can use a ranked voting method for federal or state offices,” the secretary of state must file with the General Assembly a report that discusses “the impact of ranked choice voting methods as compared to elections conducted through other voting methods” and highlights “spoilage of ballots, undervotes,” records of use and results of risk-limiting audits, and the impact on voter turnout in historically under-represented communities, including the disabled community, non-English speaking voters, and non-white voters.”

Whether the members of the state legislature back off on the stringent requirements of SB24-210 likely depends on whether Gov. Jared Polis successfully persuades the General Assembly to honor voter desires if Proposition 131 is approved. Polis said in June that he would insist that the legislature do so. 

“[T]he language in [SB24-210] will not be the starting point for implementation and it will be essential to reconcile the bill with the measure and to take prompt and good faith actions to successfully implement the will of the voters, and we are committed to doing so,” Polis announced.

But legislators could potentially resist Polis’ entreaties. “The larger the margin the more the legislators are going to feel that they should listen to their constituents,” Landry said. “The legislators might think they know better than the voters because they’re elected officials. They might think, ‘well, the voters aren’t really that knowledgeable.’” 

Results of a poll conducted by Keating Research indicate that nearly two-thirds of Colorado voters support enactment of Proposition 131, according to Colorado Politics.

Ranked voting may reduce partisanship, extremism on both sides of aisle

Thiry, the ballot measure’s leading champion, told The Sum & Substance, a Colorado Chamber of Commerce publication, earlier this month that his goal is to incentivize more moderation in the state’s politics.

“It’s not that I’m looking for a world where all candidates are in the middle,” Thiry said in an interview with that outlet. “I’m looking for a world where candidates can meet in the middle.”

Whether ranked voting does, in fact, produce elected officials who tend to be more centrist in their views is unclear. A 2021 paper that purported to synthesize a few studies, for example, found that there is insufficient evidence to conclude that it does. Others indicate that ranked voting systems may well reduce partisanship in governance.

Spencer argued that the consensus among political scientists favors the view that ranked voting increases the likelihood that politically moderate candidates are elected.

“The outcome will more closely match what the population wants and the way the district is drawn,” he said. “The peculiarities of moving from a hardcore partisan primary into a more moderate general election, that process doesn’t lead to the kind of skewed outcomes where some candidates can win even if they’re only preferred by a minority.”

Candidates in a ranked voting system election, Spencer continued, are less likely to stake out positions that appeal to the extremes of their party. 

“It’s populist in that it will reflect the popular will,” he said, referring to the ranked choice system. “It’s not necessarily populist in increasing the likelihood that candidates that can demagogue it, and say ‘I’ll get you whatever you want,’ [or] ‘I’ll cut your taxes,’ [will] win.

Aside from Alaska and Maine, several large American cities have used ranked voting to choose municipal officials. They include Burlington, Las Cruces, Minneapolis, New York, Oakland, Portland (Maine), Salt Lake City, San Francisco, and Santa Fe. In Colorado the cities of Aspen, Basalt, Boulder, and Telluride have utilized a ranked voting system in local elections.

The Democratic Party has used a ranked voting system in primary elections in a few states, including Hawai’i, Kansas, Nevada, and Wyoming, and the Republican Party has used an odd variant of it to select nominees in Virginia.

Here in Colorado, the state Democratic Party said September 6 that it opposes Proposition 131.

Shad Murib, the state party’s chair, thinks that ranked voting is a bad idea. “An overcomplicated  system that will cost tens of millions of dollars to implement, that will have confusing ballots for voters, and will invite more and more dark money into Colorado politics is not the answer,” he said at a forum held at the University of Denver Sept. 27. “This measure will make every problem we have in Colorado politics worse.”

Murib did not explain why he believes Initiative 131 will lead to irreparable voter confusion or why he thinks a ranked voting system will invite more financial contributions that are difficult for voters to track.

The state Democratic Party’s 2022 platform indicates that the party’s official view on ranked voting, as articulated by Murib, is relatively new. That document says the party believes Colorado should “[r]eplace plurality voting with methods that allow voters to rate or rank candidates.” That same language appears in the 2020 Colorado Democratic Party platform.

There is no unified national Democratic Party opposition to ranked voting. In fact, some Democrats in Congress appear to support the concept. On Sept. 12 three of the party’s veteran members of Congress – U.S. Sen. Peter Welch of Vermont and U.S. Reps. Don Beyer of Virginia and Don Beyer of Virginia – introduced a bill that would require ranked voting in all congressional elections. 

The Colorado Republican Party indicated opposition in May, according to a KOAA News5 report. Its national counterpart did so in 2023. A February report by Documented and Rolling Stone indicated that Republican-aligned interest groups have begun to mount coordinated efforts to oppose ranked voting around the country.

“I would guess that the reason for the fear of ranked choice voting is that it could help elect more Republican moderates rather than more extreme Republicans,” said Rick Hasen, a professor and director of the Safeguarding Democracy Project at the University of California Los Angeles School of Law, according to the Documented/Rolling Stone report.

Stout called it “disingenuous” for the major parties to think that voters cannot understand ranked voting. 

“I think it’s incredibly insulting to our electorate to say that the people can’t understand ranked choice voting [or] understand that what they’re being asked to do is list people in order of preference,” she said. “People do that all the time in surveys and in response to questionnaires. To me it’s asinine to suggest that the electorate won’t be able to figure this out.”

“I think that’s a dog whistle to try to maintain the power the parties have in these elections in our overall governance system,” Stout argued. “It’s not true. In fast, what they’re essentially arguing for is continuing to have people be disenfranchised and having to make the decision between essentially throwing away their vote for their candidate they really believe in, but who doesn’t have a chance in the current system, or plugging their nose and choosing between what they view as the lesser of two evils. That, to me, is a much worse situation for our voters than having to learn how to fill out a new ballot.”

Stout agreed that voter education may be necessary, but said she does not find that to be a reason to oppose ranked voting.

“Part of our job as municipalities or as counties will be to educate people as to how to fill out their ballot.” 

The cost of providing that education, and the time needed to do it, is a significant concern for the state’s county clerks.

Molly Fitzpatrick, the clerk and recorder of Boulder County, said at the Sept. 27 DU forum that the clerks are not currently prepared to put Initiative 131 into effect. “I think about this question not only from Boulder County’s perspective, but from the perspective of all the counties across the state,” she said. “We talk about these technology systems, they are not ready. When we talk about the training that needs to happen for election officials, that is not developed. This does take time.”

Fitzpatrick explained that ranked voting “does touch every single thing” for which county clerks are responsible and, to her, the state must step up to help. “The biggest question is how are we going to get this done by 2026.”

“If this ballot measure were to pass, clerks will absolutely take the lead on implementing legislation,” she continued. 

Matt Crane, the executive director of the Colorado County Clerks Association and former Arapahoe County clerk and recorder, echoed Fitzpatrick’s concern, pointing out that two years may not be enough time to get ready.  

“We have great reservations that the systems will be in place by 2026,” he said. “When you’re talking about a transition like this, should the voters pass it we will do what we’ve always done, which is go to the mattresses to implement this properly. But it has to be done in a way that puts the voters first.”

“We can do this, we will do this if the voters direct us to do it,”  he said, “but people need to be aware of the challenges involved in implementing this too soon.”

Both Crane and Fitzpatrick agreed that county clerks are not opposed to ranked voting or the top-four open primary system in concept. Their worries relate to funding and time.

“Colorado has been on the cutting edge of election innovation since the early 1990s. Should the voters choose to do this, then we can do it in the same way we’ve delivered elections for the last thirty years, which is among the best in the nation,” Crane said. 

Asked if the clerks can carry out the voters’ will if Initiative 131 is approved, Fitzpatrick was clear that the answer is “yes” if the needs they have identified are met. “If the systems [that] we’ve described, and [have] been on record for . . . are in place, absolutely.” She emphasized that county clerks need time to familiarize themselves, their staff, and voters with the new system. 

“The question of when the tools are developed, and did you give election officials enough time to work with the tools, get educated with the tools, test the tools, educate the voters,” is important, Fitzpatrick said. 

An information sheet prepared by the Colorado County Clerks Association lists a number of specific concerns, including the need to upgrade the Election Night Reporting website to present ranked voting results, Dominion Voting Systems to “program and certify a version of their software that allows for a multi-winner contest using RCV,” and for Clear Ballot voting Systems to certify a version of their software for ranked voting.

The information sheet also points to the necessity of the secretary of state’s office updating limiting audit software, undertaking rulemaking, and developing a communication campaign aimed at voters in coordination with CCCA.

Thiry said at the DU forum that he has been in discussions with Gov. Jared Polis about how to find the money in the state budget needed to fund efforts to prepare the state for implementation of Initiative 131, should it be approved.

“We agree with the importance and significance of that investment and we’re going to work super hard to make that happen,” he said.

Thiry pointed out that clerks have access to a wide network of expertise on implementing ranked voting systems because there are dozens of locations around the country that have already put it into effect.

“There’s an ecosystem of nonprofit entities that will provide free support, in terms of technology, in terms of voter education, in terms of marketing materials, et cetera,” he said. “All of those national partners of ours are ready to help.”

Thiry was instrumental in the enactment of previous ballot measures allowing unaffiliated voters to participate in the party primaries that are now a feature of Colorado election law, eliminating the presidential caucus system in the state, and creating independent redistricting commissions to set boundaries of state legislative and Congressional districts.

His detractors have accused him of using ballot initiatives as a way to advance a political ambition to become Colorado governor, a claim he denied Sept. 27 at a Colorado Sun-sponsored forum.

“When we ran the initiative in 2016, people said I was going to use it as a platform to run for governor,” Thiry said. “In 2018, we were running the gerrymandering [initiative]. They said ‘you’re going to run for governor.’ I didn’t. In 2020, in dealing with the calendar, people said I was going into that. So at some point, I think the credibility might sink in.”

In Thiry’s interview with the Estes Valley Voice, he said he believes that the top four primary system and ranked voting would inspire more public confidence in democracy.

“When people are not engaged, when they don’t think their vote is meaningful, they tend to become negative about the system overall,” he said. 

Thiry also argued that the top four open primary and ranked voting will mean better decision making by politicians, too. 

“I do think, if this passes, we will have better governance,” he said. “In general, it will be a more governance-oriented, action-oriented legislature because that’s what it takes to get elected. Suddenly you’ve got to appeal to the entire electorate.”

Voters in Arizona, Idaho and Nevada will decide in November whether to adopt varieties of all-candidate open primaries and ranked voting. The Oregon electorate is asked to adopt ranked voting in all primaries and general elections for federal and statewide office. In Montana an initiative that would create a top-four open primary has qualified for the ballot and, in South Dakota, voters will face the choice of installing a top-two open primary.