P.O. Box 12060
Austin, Texas 78711-2060
Henry Cuellar, Ph.D.
Secretary of State
TTY (800) 735-2989
(800) 252-VOTE (8683)
Mr. John Steiner
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.
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:
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):
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:
Act of May 30, 1951, 52nd Leg., R.S., ch. 492, amended by Act of May 28, 1977, 65th Leg., R.S., ch. 664 (repealed 1985) (emphasis added).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:
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, 77th 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.
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.
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.*
Prepared by Melanie Best