A lawyer for six San Franciscans who oppose The City’s ranked-choice voting system argued before a federal appeals court Tuesday that the procedure deprives them of their constitutional voting rights.
“This case presents the issue of whether voters have the right to have their vote counted in the most important part of an election — that is when the winner is decided,” attorney James Parrinello told a panel of the 9th U.S. Circuit Court of Appeals in San Francisco
The six voters, led by former Board of Supervisors candidate Ron Dudum, want the appeals court to overturn a federal trial judge’s ruling dismissing their lawsuit.
The three-judge panel took the case under submission and has no deadline for issuing a ruling. But the panel last fall agreed to expedite the case in hopes of resolving the appeal before The City’s crowded mayoral race in November.
The ranked-choice system, also known as instant runoff, was adopted by San Francisco voters in a 2002 initiative and went into effect in 2004. Last fall, Oakland, Berkeley and San Leandro used a similar system.
Under San Francisco’s version of the procedure, voters can rank three choices in certain races such as the contests for mayor, supervisor and district attorney.
If no candidate wins a majority, the candidate with the lowest number of votes is eliminated and his or her votes are transferred to the second choices of voters who selected that candidate. The process continues until one candidate achieves a majority of the votes then being considered.
The plaintiffs in the lawsuit claim that when there are more than three candidates — as in one supervisor race last fall with 21 contenders — voters whose choices are eliminated in early rounds of voting have no voice in the final rounds.
Judge Marsha Berzon noted, however, that the system is a form of plurality voting, which courts have found constitutional. In plurality voting, the candidate receiving the most votes wins with or without a majority.
“In fact it’s not a majority system, it’s a plurality system,” Berzon said.
Looking at an illustration provided by Parrinello of voters whose candidates were eliminated, Berzon said, “It seems to me that what has happened here is that they’ve lost — they voted for three losing candidates.”
Deputy City Attorney Andrew Shen, defending the initiative, argued, “When you look at the San Francisco system, voters have the opportunity to choose three candidates for each office.
“How can tripling the opportunity be a burden whatsoever?” Shen asked.
The 2002 voter initiative, adopted as a charter amendment, provided that San Francisco could either offer ranked-choice voting for all candidates in a race, or, if that was not feasible, restrict the choices to three.
Shen told the court that The City limited the choices to three because it was not able to obtain the technology for ranking more than three choices. A ballot allowing as many as 20 choices would also be confusing, cumbersome and expensive, The City has argued.
Parrinello conceded, “We accept The City’s position that the computer system doesn’t allow unrestricted rank-choice voting.”
But he argued that the court should nonetheless prohibit the limited ranked-choice voting and order The City to implement a different alternative.
Other options, according to briefs filed by the plaintiffs, would be either to return to having separate runoff elections between the two top vote-getters in each race, or to have a simple plurality vote in each race.
Ranked-choice voting is used in San Francisco elections for mayor, Board of Supervisors positions, district attorney, city attorney, sheriff, public defender, treasurer and assessor-recorder.
School board members are elected by plurality votes.
The plaintiffs are appealing a summary judgment ruling in which U.S. District Judge Richard Seeborg last year upheld the system and dismissed the lawsuit.