Kansas Attorney General Opinion 2020-007

June 1, 2020
ATTORNEY GENERAL OPINION NO. 2020- 7
The Honorable Adam Smith
State Representative, 120 th District
1970 Road 3
Weskan, Kansas 67762
Re: 	Constitution of the State of Kansas–Elections–Mode of Voting; Ranked-
Choice Voting
Synopsis: 	Article 4, § 1 of the Kansas Constitution prescribes the methods by which
votes may be cast but is silent on the method to be used for allocating votes
and 	therefore 	does 	not 	prohibit 	the 	use 	of 	ranked-choice 	voting
methodology. Cited herein: Kan. Const., Art. 4, § 1; K.S.A. 25-702.
* 	* 	*
Dear Representative Smith:
As State Representative for the 120 th District, you request our opinion concerning the
constitutionality of the use of “ranked-choice election methodology.” Specifically, you ask
whether ranked-choice election methodology would be in violation of Article 4, § 1 of the
Kansas Constitution and whether language would need to be added to the Kansas
Constitution “to clarify and allow ranked-choice election methodology” for calculating
election results. We conclude that the answer to your first question is no, which dictates
that the answer to your second question is also no.
Your request explains that, for the purpose of your request, ranked-choice election
methodology is “a single-ballot, majority winner process for voting and tallying election
results” to be used in races among more than two candidates. Ranked-choice voting
methodology allows voters to mark their ballots for more than one candidate for a position,
indicating their first-choice candidate and then also their second- , third-, and subsequent-

Representative Adam Smith
Page 2
choice candidates. 1 When election results are tallied, if no candidate receives more than
50% of the first-choice votes cast, the candidate with the fewest first-choice votes is
eliminated from consideration and the votes on the ballots listing that candidate as first
choice are distributed to the candidates who those voters ranked as their second choice. 2
This process of elimination of candidates and redistribution of votes continues until one
candidate has garnered more than 50% of the votes cast.3
In contrast, the historical–and in 49 states, current–method has voters select a single
candidate for each position. 4 The winner of the election is the candidate who garners the
most votes.5 This system is known as the “plurality” system.6 Under this system, in a race
with three or more candidates, it is possible that the candidate who garners the most
votes does not garner more than 50% of the votes cast.7
With this understanding of these two systems, we now consider Article 4, § 1 of the
Kansas Constitution. It states, “All elections by the people shall be by ballot or voting
device, or both, as the legislature shall by law provide.” 8 “Ballot” is a familiar term in voting
and is defined as “a sheet of paper used to cast a secret vote” and “the action or system
1 	Ranked -Choice 	Voting, 	Nat’l 	Conf. 	of 	State 	Legislators, 	May 	14, 	2019,
https://www.ncsl.org/research/elections-and-campaigns/ranked-choice-voting636934215.aspx 	(last
accessed March 25, 2020). This system is sometimes referred to as “instant-runoff” voting. Id.
2 	Id.
3 	Id.
4 	The first, and so far only, state to use the ranked-choice method for statewide voting is Maine. Id. In
2018, under its Ranked-Choice Voting Act, Maine used ranked-choice voting in races for the U.S. House
and Senate primary and general elections, as well as statewide and state assembly primaries. Id. The
method was not used for the election of state representatives, state senators, or governor because the
Maine Constitution states that those offices are to be elected by a plurality of votes. Me. Const. Art. IV, pt.
1 § 5, pt. 2 § 4; Art. V, pt. 1, § 3; see also Opinion of the Justices, 162 A.3d 188, 205 (Me. 2017). In other
settings—caucuses and city and county elections—ranked-choice voting, and variations thereof, have been
used in caucuses and city and county elections dating back to the early twentieth century and are currently
used in some state party caucuses and city and county elections. See, e.g., State ex rel. Farris v. Simpson,
155 So. 831 (Fla. 1934) (considering the method of voting for party's state executive committee); Minnesota
Voters All. v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009) (considering constitutionality of instant
runoff voting election methodology adopted by city); Dan Dorio and Wendy Underhill, Ranked-Choice
Voting, Nat’l Conf. of State Legislators LegisBrief, Vol. 25, No. 24 (June 2017), available at
https://www.ncsl.org/research/elections-and-campaigns/ranked-choice-voting.aspx (last accessed May 5,
2020) (noting that ten cities currently use ranked-choice voting).
5 	K.S.A. 25-702 mandates plurality voting, stating: “In all elections for the choice of any officer . . . unless
it is otherwise expressly provided, the person [or governor/lieutenant governor pair] having the highest
number of votes for any office shall be deemed to have been elected to that office.”
6 	A plurality may be “an excess of votes over those cast for an opposing candidate” or “a number of
votes cast for a candidate in a contest of more than two candidates that is greater than the number cast for
any other candidate but not more than half the total votes cast.” Plurality. Merriam-Webster.com Dictionary,
Merriam-Webster, https://www.merriam-webster.com/dictionary/plurality (last accessed May 5, 2020).
7 	Id. See also Clarence Gilbert, Hallett Hoag, George Hervey, Jr., Proportional Representation 2 (1926)
(defining a plurality as a relative majority).
8 	Kan. Const. Art. 4, § 1 (emphasis added). The Kansas Supreme Court has interpreted Article 4, § 1 as
guaranteeing voters the right to secrecy in their vote. Sawyer v. Chapman, 240 Kan. 409, 413 (1986).

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of secret voting.” 9 “Device” is defined as “a piece of equipment or a mechanism designed
to serve a special purpose or perform a certain function.”10 From these definitions, we
conclude that both “ballot” and “voting device” as used in Article 4, § 1 are physical means
for casting votes. Thus, we conclude that Article 4, § 1 of the Kansas Constitution
prescribes the physical manner in which votes may be cast, but does not prescribe the
manner in which votes are to be allocated to the candidates.
“It is fundamental that our state constitution limits rather than confers powers. . . . [T]he
question presented is, therefore, not whether the act is authorized by the constitution, but
whether it is prohibited thereby.”11 Applying these principles, we conclude that because
Article 4, § 1 of the Kansas Constitution is silent on the manner in which votes are
allocated to the candidates, it does not prohibit the use of ranked-choice voting.
Your second question is whether additional language would need to be added to the
Kansas 	Constitution 	“to 	clarify 	and 	allow 	ranked-choice 	election 	methodology 	for
calculating the election results.” This question is necessarily answered by our answer to
your first question.
Sincerely,
Derek Schmidt
Kansas Attorney General
AnnLouise Fitzgerald
Assistant Attorney General
DS:AA:AF:sb
9 	Ballot. 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/ballot (last accessed March 26, 2020).
10 	Device. 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/device (last accessed March 26, 2020).
11 	State ex rel. Tomasic v. Unified Gov't of Wyandotte Cty./Kansas City, Kan., 264 Kan. 293, 300 (1998)
(citations omitted). In Tomasic, the Kansas Supreme Court applied these principles to evaluate the
constitutionality of a statute. Here, no statute concerns ranked-choice voting, so we cannot opine on the
constitutionality of a statute and opine only on whether there is a constitutional prohibition on using that
methodology.