Is RCV Constitutional in Oregon?

Is Ranked Choice Voting Constitutional in Oregon?

Oregon law does not examine the substantive constitutionality of a bill until after it passes and goes into law. For HB 2004 this will not occur until after it goes to the public for a vote in November 2024. Even then, the Oregon courts will only examine HB 2004's constitutionality if it's legally challenged. While that is outside of our organizations scope and mission, we have taken a close look at the matter. After a careful analysis of the Oregon Constitution, we believe that RCV is substantively unconstitutional in Oregon.

Oregon has two constitutional clauses in particular that are relevant to Ranked Choice Voting:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." OR Constitution, Article 1, Section 20

In Ranked Choice Voting, of the voters whose 1st choice is eliminated or does not win, some will have their next choice counted and others will not. If all votes were transferred equally then RCV would sometimes elect other winners. RCV ignores some voters' relevant 2nd choices, as seen in Alaska. In Alaska's 2020 US house election, if Sarah Palin voters' 2nd choices had been counted it would have changed the winner.

"All elections shall be free and equal." OR Constitution, Article 2, Section 1

This extends the equal protection clause to Oregon elections specifically. Again, in RCV some people have the right to have their next choice count if their favorite is eliminated and others do not.

Is Ranked Choice Voting Currently Legal in Oregon?

Ranked Choice Voting is currently not legal in Oregon until HB 2004 passes and goes into effect in 2028.

ORS rule 254.485: "ballots shall be tallied and returned by precinct.”

This is impossible in RCV because you there is no way to tally RCV ballots by precinct. In RCV there is no way to know which rankings will be eventually be counted and which will not be until all ballots have been centralized.

Benton county is currently out of compliance with this law. Portland and Multnomah County will also be out of compliance as soon as they implement with their current plan, to the best of our knowledge.

Learn more about precinct summability and centralized tabulation requirements for RCV here.

What is HB 2004?

House Bill 2004 is a legislative bill that was referred to the voters at the tail end of the 2023 Legislative Session. It will be on the November 2024 ballot and if passed, it will implement Ranked Choice Voting for President of United States, United States Senator, Representative in Congress, Governor, Secretary of State, State Treasurer and Attorney General. Notably, it omits the legislature itself (the people who referred it) from the reform so the house and senate seats would remain as they are now, as would local elections.

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