Things are getting tighter for instant runoff voting in San Francisco this November. There are really interesting legal questions put front and center, detailed below.

A San Francisco Chronicle article on the latest development is here:
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/07/26/BA119693.DTL

[Digression]
And another news article on cumulative voting rights in county board elections in Illinois is here:
http://www.news-gazette.com/story.cfm?Number=14228

The staff of the Secretary of State's Election Division prepared a report, delivered Friday at 5 pm before the Monday Sacramento hearing on the City's proposed plan for counting the instant runoff voting ballots, recommending the Secretary not approve the application. The main legal arguments against a charter city using instant runoff voting are fairly narrow (the equivalent of a ticky-tack foul in basketball):

The staff report's 'serious concerns' include:

1. Election Code s. 15360 requires that a manual tally of 1% of precincts be conducted. The city charter doesn't define whether those precincts should be conducted using instant runoff voting only on those ballots, or whether the instant runoff should include all the ballots in the entire jurisdiction. It's easy enough to find the first-choice candidates in one precinct through a manual count -- that should match up with the automated count of first-choice candidates. That's like any other election. What if the last-place candidate in that particular precinct is the first-choice candidate citywide? How will a manual recount work then? Well, I think it means that it is impossible to conduct a manual tally in a particular precinct with instant runoff voting, so that the definition of 'manual tally' should mean one only counts the first-choice candidates in a particular precinct in a jurisdiction that uses instant runoff voting. The legislators who wrote the manual tally law understood a manual tally to mean counting the votes in one precinct, so I think there's a good argument that in order to remain faithful to that understanding, one would only count the first-choice preferences in one precinct in a manual tally (as it is otherwise impossible to conduct a manual tally of one precinct).

2. Elections Code s. 15620 and s. 15640 allows a voter to request a recount. Because instant runoff voting involves a series of elimination of candidates, any recount is a repeat of the entire process. That doesn't strike me as a particular problem.

3. The city charter amendment states that tie votes shall be resolved according to state law. Trouble is, state law differes on how to treat tie votes in primary elections and general elections. In primary elections, tie votes are resolved by lot and in general elections, a runoff is held. Seems like the one municipal election would be considered a general election. The other trouble is that state law defines a tie as when two or more people receive the same number of votes that are also the highest number of votes for that office. (Elections Code s. 15651). So what if the two candidates with the fewest amount of first-choice votes both have the same small number of first-choice votes? Is that a tie under state law, and if so, how is it dealt with? This seems like a case of statutory silence (that isn't a tie under state law, so there is no state law on the subject), and it seems like a policy-maker like the City Elections Commission is authorized to fill in the gaps whenever there's statutory silence.

4. Elections Code s. 15342 regarding the canvass requires a separate tally of write-in votes which neither the city charter nor the city's proposed implementing procedures specifically provide for. An oversight, easily corrected, and not enough of a mistake to deny the application, I think.

There are the main objections to instant runoff voting in the staff report as far as I can tell; I'm happy to send a pdf of the report to anyone that would like one. I don't think it's online yet.

Keep in mind, the plan as submitted by the city is the back-up plan in case the optical scan equipment is not ready for use by November (and certified ahead of time). That process is on track and likely to occur without any problem (so we've been told), but opponents of instant runoff voting are hoping to use this period of limbo in late July and early August before the equipment is certified to stop implementation this November.

Dan
Dan Johnson-Weinberger
General Counsel
Center for Voting and Democracy
djw@fairvote.org
www.fairvote.org
312.933.4890

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