By Steven T. Jones

Cost overruns, technical difficulties, regulatory hurdles, and ongoing contractual negotiations have all created barriers to implementing instant-runoff voting for the November election.

But a potentially more virulent threat to IRV emerged May 23 when a high-powered law firm hired by allies of Mayor Willie Brown's political machine filed a formal challenge with the California Secretary of State's Office, which must approve the use of the new system.

IRV, which allows voters to rank their top three choices of candidates, was approved as Measure A by voters last year in a City Charter amendment that mandates it be in place by this fall.

But IRV opponents now argue that the process will disenfranchise minority voters. They raise the specter of the Bush-Gore standoff during the 2000 presidential election, claiming that the hand counting of ballots – which is how second and third choices will probably be tabulated after the initial tally, thus avoiding a runoff election – will compromise the integrity of the election.

"You could end up with a situation just like Florida," said attorney Karen Getman, who joined the law firm of Remcho, Johansen, and Purcell after stepping down in April from the state's Fair Political Practices Commission, of which she was chair. "Nobody in San Francisco wants to see San Francisco look like Florida."

Yet IRV supporters like Steven Hill of the Center for Voting and Democracy dismiss the challenge and its chances of stopping this voter-mandated reform. "It's an act of desperation," Hill said. "They really want to stop this because they think that will help Gavin [Newsom]'s chances. They'll throw everything they can up and hope something sticks."

Still, by trying to make this about voting rights, the opponents of IRV – which in this case are David Lee, Mary Jung, Sabrina Saunders, the A. Philip Randolph Institute, and the California Voting Rights Foundation – are pursuing an area of the law that could eventually prompt a sympathetic judge to issue an injunction delaying IRV's implementation if the claim can be substantiated.

All of those plaintiffs, except the California Voting Rights Foundation, have been Brown supporters. For example, Saunders was a Board of Appeals appointee who was affiliated with One Accord PAC, which took in money from business and development interests and funneled it into Brown's 2000 runoff campaign (see "The Soft-Money Shuffle," 2/16/00). And the A. Philip Randolph Institute was accused of using its voter outreach efforts to get Brown supporters to the polls (see "By Whose Authority," 12/22/99). And given that Brown's supporters are now backing Newsom, the close links between IRV opponents and the machine raises questions about their motives.

The action targets the planned hand counting of runoff ballots this November, which is the fallback plan if the city's voting-equipment contractor, Election Systems and Software (ES&S), doesn't have an automated system working and approved by both the state and feds in time. At this point hand counting is the only plan yet filed with the secretary of state, and it is a method Getman says is prone to human error or manipulation.

"When you have a hand count, there are many studies after the Florida debacle with Bush versus Gore that show minority voters tend to be disenfranchised," Getman told us.

Getman also said non-English speakers are more likely to be confused at the polling place, a claim attacked as ludicrous, even racist, by Hill and others. "It's a disservice to these communities that already have it tough to get political muscle for well-connected, highly paid insiders to throw out a system that will enfranchise minority voters more than the old system," said Jon Golinger, also of the Center for Voting and Democracy.

They note that districts with large ethnic minority populations overwhelmingly approved Measure A last year, while the conservative, white-dominated districts opposed it. Hill said IRV voting elected an African American mayor when it was used in Ann Arbor, Mich., and was lauded by various minority groups when it was used in New York City.

Getman acknowledges there's support for IRV among San Francisco minority communities but said, "What the voters wanted was as different from what this is going to give them, as you can imagine." Golinger believes just the opposite: "What voters will see when they step into the voting booth on November 4 is exactly what they approved last year."

The implementation of IRV has been slower and more difficult than any of the proponents had hoped, and their frustrations came out May 21 in hearings before the San Francisco Board of Supervisors' Finance and Audit Committee and later in the day at the city Elections Commission.

Board president Matt Gonzalez presented the committee with a $1.6 million allocation request to help ES&S develop the automated IRV system, and Sup. Aaron Peskin used the opportunity to complain about what's transpired since he helped put Measure A on the ballot. He and others originally thought the IRV technology already existed and that adopting it would actually save the city money, instead of being the complicated boondoggle it has become.

"We need to understand and publicly talk about the 'what if?'s," Peskin said. "Do we have the discretion here to say, 'If it does come down to hand counts, do we have to do this?' "

While the exchanges between Gonzalez and Peskin got testy at times, Gonzalez said he shares his colleague's concerns. Gonzalez said there are still milestones that ES&S must pass before it can be paid and the system implemented. If something goes wrong with the technology, Gonzalez said, "at that point we'll have to decide how this election proceeds."

But the two and committee member Sup. Jake McGoldrick also agreed the bottom line is that they need to find a way to implement the will of the voters. "The voters approved this, and we expect this to happen in November," McGoldrick said.

For that to happen, the city will have to get a signed contract with ES&S (which officials say is imminent), get necessary approvals for either the automated or hand-count system, develop the ballot, and execute a $2.5 million education program teaching voters how to use it. Department of Elections chief John Arntz admitted to supervisors that he's getting more nervous with each passing day.

"I'm obligated to make this happen," Arntz said. "I'll keep trying to do that until I'm told to stop. But the timeline is very, very, very tight."

Because the funding request got bumped from $1.5 million to $1.6 million after it was put on the agenda, it legally must come back to the committee again June 4 before it can proceed to the full Board of Supervisors for consideration June 10.

Joe Taggard of ES&S told the Bay Guardian the company is very close to having a signed contract, and assuming that happens, he predicted the automated IRV system will be completed by no later than July 1.

Even so, it is still an open question whether state and federal regulators can then get it approved for use in the November election, whether the city will try to just proceed with the hand count, or whether opponents will find a way to derail IRV altogether.

IRV supporters say that final scenario simply isn't an option. For better or worse, San Francisco voters have changed the City Charter to eliminate the mechanism of a runoff election, leaving IRV as the only means of deciding the outcome.

"There is no December runoff system in place anymore," Golinger said. "IRV has to happen."