City hedges on IRV
Reformers are angry about comments by election officials and want the city attorney to say traditional runoffs can't happen

By Alex Posorske

To the chagrin of instant-runoff voting supporters, San Francisco Department of Elections chief John Arntz revealed in a June 18 public hearing that his department is preparing for a traditional runoff election for this fall in case IRV isn't in place.

Backers of IRV, including Jon Golinger of the Center for Voting and Democracy, immediately decried Arntz's announcement, saying he had no authority to plan for a traditional runoff election after voters last year changed the City Charter to implement IRV. And Golinger noted that setting up alternatives could divert valuable resources from ensuring that IRV is successfully executed.

Arntz's comment to the San Francisco Elections Commission came toward the end of a long hearing, after Commissioner Arnold Townsend had told a capacity crowd that IRV is a done deal and that supporters are fighting a battle that has already been won.

It seems much has changed in the days since that hearing, from which most came away with the feeling that IRV would be implemented this year. Correspondence between the commission and the department obtained by the Bay Guardian indicates that on June 30 the department will mail letters seeking campaign workers for a traditional December runoff, which IRV was supposed to eliminate.

On the day after the hearing, Elections Commission president Alix Rosenthal also raised doubts about IRV's implementation in an interview with the Bay Guardian, saying that if the state has still not certified at least one of the city's vote-counting systems (a computerized system or a backup plan for hand counting ballots) by "mid July to early August," the commission would probably kill IRV for this year.

That deadline will be tough to meet considering a representative of the secretary of state told us that no hearing on the matter can be held, let alone final approval given, until at least 30 days after the initial report on the counting system is released. The report hadn't been released by press time, setting the stage for a major confrontation next month.

IRV (or ranked-choice voting, as the city now prefers to call it) will allow voters to rank their top three choices for citywide offices. If no candidate wins a majority of first-place votes, then supporters of losing candidates have their votes go to their second and third choices until one candidate wins a majority.

Legal and political battles are now shaping up between IRV supporters and those seeking to derail it. City Attorney Dennis Herrera has until recently been absent from that battleground. Matt Dorsey, a representative of Herrera's office, told the Bay Guardian the official line is that the office is proceeding as if IRV will happen in November and that "no matter what, we're going to defend it."

But a written statement Herrera's office issued June 23 left some room for doubt. In the statement Herrera noted that while IRV is technically the law, if the system is implemented in a flawed manner, "it would not merely doom the promise of IRV to failure permanently – it would be illegal."

Herrera wrote that "under the circumstances, it's certainly reasonable for the City to develop contingency plans – even while remaining hopeful that we won't need them."

The statement seems to fall well short of what IRV supporters wanted, which was a legal opinion stating that last year's change to the City Charter made IRV the only legal way to hold an election this year. They argue that it's an open legal question whether the Election Commission or the San Francisco Board of Supervisors still have the power to order a traditional election, overruling the wishes of the voters.

"We would hope for a more thorough, thoughtful, legal opinion if he's going to ask the Elections Commission to ignore the charter," Golinger said after reviewing Herrera's statement.

Golinger noted the city already has a contingency plan – hand counting the IRV ballots – if the Secretary of State's Office does not approve the computerized counting system in time. But abandoning IRV in favor of traditional runoffs would expose the city to legal challenges.

"Opening the door for a December runoff would be opening a Pandora's box of options," noted Golinger, who said IRV supporters will now press the Elections Commission and the Board of Supervisors to make a strong public statement in favor of IRV, as well as press Herrera's office for a more detailed legal analysis.

If that fails, Golinger said, the next move will be a lawsuit filed by IRV supporters. Opponents of IRV – including those connected to the political establishment that supports Sup. Gavin Newsom for mayor – are also launching legal challenges to IRV's implementation (see "The Machine Attacks IRV," 5/28/03).

No one will be publicly happy if it comes to that, but at least one person is taking some solace in all of the talk about lawsuits. "In a really odd way, it's comforting knowing that there's a lawsuit out there so someone can tell us what to do," Rosenthal said.