In a deeply polarized nation, some voters do not like the candidates offered.

That leads to growing interest in ranked choice voting — a system where voters also cast ballots for their second and third choices in a contested race. Those choices can eventually be counted in the race as candidates seek an overall majority of the vote in essentially an instant run-off election.

But Connecticut Attorney General William Tong says that ranked-choice voting is likely unconstitutional in races for state legislature and statewide offices like governor, treasurer, and attorney general. Tong’s formal opinion throws uncertainty into an issue pushed by advocates, and he acknowledged the intricacies of the matter that he described as a “complex and novel question, which no Connecticut court has examined.”

The legislature debated multiple bills on the issue last year at the committee level, but the measure was not passed and is awaiting debate again when the 2024 legislative session starts on Feb. 7.

In a highly detailed letter with 22 footnotes, Tong wrote that ranked-choice voting “would likely not survive a constitutional challenge.”

“This is a close call,” Tong wrote in the final lines of the 11-page letter to House Speaker Matt Ritter of Hartford. “But I must conclude that legislation implementing RCV in state general elections would not pass constitutional muster absent a constitutional amendment.”

The state’s complicated election laws are often changed only by constitutional amendments that need to be approved by the voters, as already done for early voting. Another amendment for no-excuses absentee balloting is on the statewide ballot in November.

“Our state has never used ranked choice voting. Our constitution does not mention it; and I found no evidence that the framers of our constitution intended to authorize it,” Tong wrote. “But that does not end the inquiry, since the Connecticut constitution is a ‘living document’ and ‘an instrument of progress … intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all our citizens.’ ”

Gov. Ned Lamont favors the idea, and his spokesman, David Bednarz, said Wednesday that the issue now remains unsettled.

“The governor’s counsel is in the process of reviewing Attorney General Tong’s opinion on ranked choice voting, including its impact on state elections and how that differs from the ability to enable this option for primaries and municipal and federal elections,” Bednarz said. “The governor believes ranked choice voting will benefit Connecticut and is reaching out to advocates on both sides of the aisle to hear their suggestions on whether this remains as something they would be interested in pursuing.”

Tong’s opinion was relatively narrow in scope. Based on the complicated vagaries of the state Constitution, the opinion applies only to general elections and not primaries. It also does not cover federal or local municipal races for mayor or first selectman.

Lamont’s 2022 campaign

The issue dates back to the 2022 race between Gov. Ned Lamont and Republican Bob Stefanowski.

During that battle, Lamont received an important endorsement from a third political party, known as the Griebel-Frank for CT Party, which was created by business executive Oz Griebel and attorney Monte Frank for their 2018 race for governor.

While the party was not well known to the general public, the endorsement was politically important because it made Lamont the first Connecticut governor in more than 100 years to have three ballot lines.

Frank noted that the endorsement was based largely on support by Lamont and Lt. Gov. Susan Bysiewicz for ranked choice voting.

“Our endorsement is not based on left-right ideological issues, but instead was premised on their commitment to the people of Connecticut to lead the charge to enact ranked choice voting and help restore our democracy,” Frank said at the time. “Governor Lamont has pledged to introduce a bill in the next legislative session for ranked choice voting in federal elections and to give municipalities the option of using it in single-office races. We look forward to working alongside the governor to pass the bill.”

The bill did not pass in 2023, and Tong was asked by Ritter to explore whether the issue was constitutional at the state level.

While unknown to many voters, ranked choice voting had been used in 2022 in Alaska, where former vice presidential candidate Sarah Palin lost to a Democrat in a race for Congress.

“Sarah Palin said, ‘I think ranked choice voting’s a little weird.’ It sorta took on a new credibility with me,” Lamont said. “I think it’s a lead worth taking, no question about it.”

Under questioning outside the state Capitol after he received the endorsement, Lamont said it was the first time that he had publicly endorsed ranked choice voting.