Respect the Voters 

The Memphis City Council is systematically attempting to undo the expressed will of the electorate.

In 2008, in a series of referendum votes, Memphis voters made clear how they wanted Memphis City Council elections to work. This year, the city council is systematically disrespecting the voters' preferences through a series of votes for referendum do-overs this November. The result will be voter confusion at best and, at worst, the entrenchment of incumbents in an undemocratic system.

Currently, the council consists of seven members elected from single-member districts, and six members elected from "Super Districts" electing three members each. In the single-member districts, if no one candidate gets a majority, the top two vote-getters advance to a separate runoff round six weeks later. As described by John Marek in these pages last December, these expensive runoffs typically have only 5 percent turnout, a turnout that is disproportionately white and affluent.

In the Super Districts, no majority is required. A candidate can win with 38 percent of the vote if she has more votes than the other five candidates. This "plurality" system can allow the majority to split its votes among several similar candidates, allowing the least-preferred candidate of the majority to squeak by with 38 percent of the vote.  That's how Donald Trump, who polling showed would have lost in head-to-head contests against candidates like Mario Rubio and Ted Cruz, won the early primaries to become the front-runner and eventual Republican nominee. 

It's a system subject to manipulation and collusion. An established candidate can recruit a "shill" candidate to enter the race and split the opposition's voting bloc, allowing him to prevail with a bare plurality. The plurality system is arguably an even worse system than regular runoffs.

The solution to both problems, overwhelmingly approved by voters in 2008, is Instant Runoff Voting (IRV), where voters rank their first, second, and third choices. This ensures a majority winner, without the need for an expensive, low-turnout second election. It saves time and money, boosts participation, makes the electorate more representative of the district as a whole, and discourages negative campaigning (because candidates want to be the second choice of their opponents' base and will be loathe to alienate them with mudslinging). IRV is slated to be phased in for single-member districts in the next city council election in 2019, with eventual implementation in all city council districts thereafter.

Last December, before IRV even had a chance to be tried once, the council voted to place a repeal of IRV on the November referendum ballot. Now, the council is about to add another competing referendum on the ballot: a proposal  to use plurality voting for all city council elections, even the single-member districts that have used regular runoffs. Both measures would kill IRV if approved by voters in November. 

Currently, there is no announced plan to withdraw the December "regular runoff" referendum measure in deference to the plurality plan (though that, of course, could change).

If you're confused about how two contradictory measures can be on the ballot side by side, you won't be alone. It will cause needless voter confusion in November. Some local commentators have suggested that if both are on the ballot, and they both pass, the plurality measure would make the regular runoff measure moot. That's not at all clear: The language of the two measures is directly in conflict. Passing both would cause legal uncertainty.

The mess underscores how desperate some council incumbents are to eliminate Instant Runoff Voting, which opens up opportunities for lesser-known, lesser-funded candidates to enter the system.

Also illustrative of the incumbency protection is yet another referendum measure about to pass, which would undo another 2008 referendum result: In 2008, referendum voters said they wanted council members limited to two terms. Again, before there's even been a chance to put that into effect, council members are pushing a referendum measure which would extend that from two terms to three terms. Conveniently, it applies to current council members.

The consistent theme here is that many city council members don't care what the voters decided in 2008. They know better, and they're going to push through referenda to craft a council election system most congenial to them.

We should reject all these proposals, give IRV a chance, and respect what the voters said in 2008.

Steve Mulroy is a University of Memphis law professor and a former Shelby County Commissioner.

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