Ninth Circuit Upholds Instant Runoff Voting Method

Monday, May 23, 2011

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Ninth Circuit Upholds Instant Runoff Voting Method

By KENNETH OFGANG, Staff Writer

San Francisco’s “instant runoff voting” system, in which voters rank candidates in order of preference and candidates are eliminated sequentially until a winner is determined, is constitutional, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel affirmed a ruling by U.S. District Judge Richard Seeborg of the Northern District of California, who granted the city’s motion for summary judgment and rejected a suit by former supervisor candidate Ron Dudum and others.

More than 100 years ago, Judge Marsha Berzon noted, the mathematician Charles L. Dodgson—better known by his pen name, Lewis Caroll—searched for a perfect alternative to the plurality or “first past the post” system, under which a candidate rejected by a majority of the voters can win an election.

“There is no perfect election system, and our search for one would prove no more successful than a hunt for the mythical snark,” the judge wrote. “ Happily, we are not required to engage in any such endeavor. We hold only that Dudum has not established that the City’s chosen system is unconstitutional.”

The Constitution does not require a city to adopt any particular system, she wrote, concluding that what the plaintiffs argued were defects in San Francisco’s method were policy choices that place “an at most minimal—and perhaps nonexistent—burden on voters’ constitutional rights.”

Prior to 2002, candidates for San Francisco mayor and other citywide offices, and for the Board of Supervisors, ran in a “double ballot” system. If no candidate received more than 50 percent, a runoff election was held at a later date, between the top two candidates.

Under IRV, as it is called, only one election is held.

Voters may mark their ballots for a first choice, then a second, etc. If no candidate gets a majority of the first choice votes, the candidate with the fewest votes is eliminated, and his or her votes are added to the totals for the next choice.

The process continues until one candidate gets a majority of the “unexhausted” votes. A ballot is “exhausted”—meaning it no longer figures in the count—once all of the voter’s choices are eliminated.

In order to adapt the system to its electronic voting equipment, San Francisco—unlike some IRV jurisdictions in other states and countries—limits voters to three choices, so the system is sometimes called “restricted IRV.” Three other California cities, Berkeley, San Leandro, and Oakland, have adopted restricted IRV.

“Instant runoff voting” is somewhat of a misnomer, Berzon acknowledged in a footnote, because unlike a traditional runoff system, a candidate need not have the most or second-most votes in order to ultimately prevail. In one San Francisco supervisor race last year, the top five vote-getters all received between 11 and 13 percent, and the candidate who started out third—she was five votes behind the No. 2 candidate—wound up winning.

In attacking San Francisco’s law, the plaintiffs complained that restricted IRV disenfranchises voters whose ballots have been exhausted.

They cited a ruling by a U.S. district judge prior to California’s 2003 governor recall, striking down a state law barring voters from choosing a candidate for governor if they did not also vote “yes” or “no” on the recall. They also pointed to a ruling in the federal First Circuit, that where an earlier election was held invalid and ordered re-run, all voters—not just those who voted in the invalidated election—had a constitutional right to participate in the new election.

Restricted IRV, they argued, is similarly unconstitutional because once a voter’s three choices are eliminated, that person cannot choose among the remaining candidates.

Berzon, however, said the argument rested on the flawed premise that each stage of an IRV election—the adding of the unexhausted votes cast for the most recently eliminated candidate to the totals of the remaining candidates—is a new election. Exhaustion under IRV, she said, is not equivalent to denying someone the right to vote or discarding their vote.

“[I]n San Francisco’s system, no voter is denied an opportunity to cast a ballot at the same time and with the same degree of choice among candidates available to other voters,” the judge said.

“In short, Dudum’s contention that the City’s system discards votes is incorrect,” she continued “Instead, the system ‘counts’ all the ballots, but the final tabulation recognizes that some of the ballots ranked only losing candidates.”

Whatever minimal impact IRV may have on the right to vote, the judge concluded, is outweighed by the benefits cited by the city—a substantial cost savings from elimination of the second election and “the city’s legitimate interests in providing voters an opportunity to express nuanced voting preferences and electing candidates with strong plurality support.”

Judges Richard A. Paez and Carlos T. Bea concurred in the opinion.

The case is Dudum v. Arntz, 10-17198.