640 F.3d 1098 (9th Cir. 2011), 10-17198, Dudum v. Arntz

Docket Nº:10-17198.
Citation:640 F.3d 1098
Opinion Judge:BERZON, Circuit Judge:
Party Name:Ron DUDUM; Matthew Sheridan; Elizabeth Murphy; Katherine Webster; Marina Franco; Dennis Flynn, Plaintiffs-Appellants, v. John ARNTZ, Director of Elections of the City and County of San Francisco; City and County of San Francisco, a municipal corporation; San Francisco Department of Elections; San Francisco Elections Commission, Defendants-Appellees
Attorney:James R. Parrinello, Christopher E. Skinnell, Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, San Rafael, CA, for the plaintiffs-appellants. Therese M. Stewart, Chief Deputy City Attorney, and Jonathan Givner, Andrew Shen, and Mollie Lee, Deputy City Attorneys, San Francisco, CA, for the d...
Judge Panel:Before: RICHARD A. PAEZ, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.
Case Date:May 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1098

640 F.3d 1098 (9th Cir. 2011)

Ron DUDUM; Matthew Sheridan; Elizabeth Murphy; Katherine Webster; Marina Franco; Dennis Flynn, Plaintiffs-Appellants,

v.

John ARNTZ, Director of Elections of the City and County of San Francisco; City and County of San Francisco, a municipal corporation; San Francisco Department of Elections; San Francisco Elections Commission, Defendants-Appellees.

No. 10-17198.

United States Court of Appeals, Ninth Circuit.

May 20, 2011

Argued and Submitted March 15, 2011.

Page 1099

James R. Parrinello, Christopher E. Skinnell, Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, San Rafael, CA, for the plaintiffs-appellants.

Therese M. Stewart, Chief Deputy City Attorney, and Jonathan Givner, Andrew Shen, and Mollie Lee, Deputy City Attorneys, San Francisco, CA, for the defendants-appellees.

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Appeal from the United States District Court for the Northern District of California, Richard G. Seeborg, District Judge, Presiding. D.C. No. 3:10-cv-00504-RS.

Before: RICHARD A. PAEZ, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

OPINION

BERZON, Circuit Judge:

In 1873, Charles Lutwidge Dodgson, better known by his pen name, Lewis Carroll, spotted what he took to be an " extraordinary injustice" : using simple plurality voting to determine the winners of elections.1 Dodgson, celebrated for his whimsical classics Alice's Adventures in Wonderland and Through the Looking Glass, was also a mathematician who developed election systems— meaning, simply, methods for translating preferences, or votes, into winners of elections. Dodgson disliked simple plurality voting because, in fields with several candidates, it can elect a candidate who receives the most first-place votes but is strongly disfavored by a majority of the electorate. Dodgson's innovative election systems were designed to remedy that limitation, and are still praised today because they tend to elect candidates with widespread electoral support.2

While Dodgson preferred his systems to simple plurality voting, he recognized that his innovations were themselves imperfect. In a letter accompanying one of his pamphlets, Dodgson lamented: " A really scientific method for arriving at the result which is, on the whole, most satisfactory to a body of electors, seems to be still a desideratum." 3

Over a century later, Dodgson's wish remains unfulfilled. No perfect election system has been devised. Nonetheless, some governmental entities continue to experiment with innovative methods for electing candidates. At issue here is one such system, used by San Francisco for the election of certain city officials.

FACTUAL AND PROCEDURAL HISTORY

In March 2002, San Francisco voters approved a ballot measure, Proposition A, amending the City Charter to adopt a new electoral system for certain municipal elections. Before adoption of Proposition A, most city officials were selected in a two-round election: The city first held a general election. Then, unless one candidate won an outright majority in the first-round election, the two candidates who had garnered the most votes faced each other in a runoff election. Proposition A implemented instant runoff voting (" IRV" ) 4 to replace the two-round runoff

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election system for the following city offices: Mayor, Sheriff, District Attorney, City Attorney, Treasurer, Assessor-Recorder, Public Defender, and members of the Board of Supervisors. See S.F. CHARTER § 13.102(b).

IRV allows voters to rank, in order of preference, candidates for a single office. The Department of Elections (the " Department" ) then tabulates the voters' preferences as follows: First, all first-choice rankings indicated on the ballots are counted. If a candidate wins a majority of these first-choice votes, he wins the election. Id. § 13.102(c). If not, the candidate who received the fewest first-choice votes is " eliminated," meaning that that candidate cannot win the election.5 The second-choice votes on the ballots that had selected the eliminated candidate are then distributed to those voters' second-choice candidates. Some candidates' vote totals, as a result, now reflect a combination of first- and second-choice votes. Id. If all candidates ranked by a voter are eliminated, that voters' ballot is " exhausted," meaning that it is not recounted as the tabulation continues. Id. § 13.102(a). As long as no candidate receives a majority of the votes from the " continuing" ballots— that is, the nonexhausted ballots— the process of eliminating candidates, transferring preferences, and " exhausting" ballots repeats. A candidate is declared elected when he receives a majority of the operative votes on the " continuing" ballots. Id. § 13.102(d).

San Francisco's Charter provides that IRV ballots are to allow voters to rank a number of candidates equal to the total number of candidates running in an election. Id. § 13.102(b). For instance, if ten candidates are running for mayor, then voters are to be able to rank all ten of them. But the Charter also provides that if the voting system or equipment used by the Department cannot " feasibly accommodate" ranking that many choices, the Director of Elections can limit the number of candidates voters may rank to no fewer than three. Id. We refer to this variant as " restricted IRV."

As it has turned out, in all of the City's IRV elections since Proposition A passed, the Department has restricted the number of rankings on each ballot to three. San Francisco maintains, and the plaintiffs, several San Francisco voters (collectively " Dudum" ), do not dispute, that this choice is one of necessity: The voting machines currently in use are not equipped to tabulate unlimited rankings; cost and logistical concerns make accommodating the unlimited option untenable; and providing a ballot on which voters may rank every candidate in a large field could result in confusion, voter error, and inaccuracies in vote calculation.

The Department makes publicly available on its website tables showing the election results for the City's past IRV elections. These tables tally the total ballots cast in each election; provide synopses of vote distribution during the tabulation process and of the final votes attributed to each candidate; and show the numbers of ballots " exhausted" as the tabulations proceeded.6 See, e.g., City and County of San

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Francisco Dep't of Elections Website, Elections Archives by Year, available at http:// www. sfgov 2. org/ index. aspx? page= 1671 (last visited May 12, 2011). These tables provide helpful illustrations of how restricted IRV has worked in practice.

Dudum filed suit in federal court seeking injunctive relief against San Francisco and its election officials (collectively " San Francisco" or " the City" ). Principally, Dudum maintains that when more than four candidates run for a particular office, the restricted IRV system precludes some groups of voters from participating to the same extent as others. That argument is premised on an analogy: It would be unconstitutional, Dudum asserts, to prevent qualified voters from casting ballots in a runoff election; " exhausting" the ballot of a voter who would have ranked more than three candidates if allowed to do so, Dudum contends, is no different.7 Dudum also points out that the City's Charter declares that " exhausted" ballots are " not counted in further stages of the tabulation," S.F. CHARTER § 13.102(a) (emphasis added), and argues that not including the votes of certain voters in the later tabulation stages once all three of their chosen candidates have been eliminated is similar to disenfranchisement of those voters, and so unconstitutional. In support of those arguments, Dudum points to several recent elections in which significant numbers of ballots were " exhausted" before tabulation was completed,8 sometimes in numbers greater than the final margin of victory.9 Dudum maintains that as a result of the mandatory " exhaustion" feature and its impact, the restricted IRV system violates the First Amendment, the Equal Protection and Due Process clauses of the Fourteenth Amendment, and the Civil

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Rights Act, 42 U.S.C. § 1983. He requests declaratory and injunctive relief prohibiting the City from using the system in future elections.

Agreeing that material facts are not in dispute, the parties filed cross-motions for summary judgment. The district court granted summary judgment for the City on all claims. Dudum appealed.

DISCUSSION

A. Overview

" Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections." Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). As a way of " structuring elections," San Francisco's IRV system is fairly innovative in the context of American elections, yet has a historied pedigree.

First developed in the 1870s by W.R. Ware, a professor at the Massachusetts Institute of Technology, instant runoff (or " ranked-choice" or " alternative vote" ) systems have been used in the United States and elsewhere at various times since then. See Issacharoff, supra, at 1095; Jeffrey C. O'Neill, Everything That Can Be Counted Does Not Necessarily Count, 2006 MICH. ST. L. REV. 327, 334. Australia, Ireland, and London use IRV for certain elections, see Issacharoff, supra, at 1095, and several U.S. cities use versions of the restricted IRV system at issue here, including Oakland and Berkeley, California, and Minneapolis, Minnesota, among others. See CHARTER OF THE CITY OF OAKLAND, § 1105(k)(1); BERKELEY MUNICIPAL CODE § 2.14.030(A); MINNEAPOLIS MUNICIPAL CODE § 167.30.

Like all electoral systems, including widely-used systems such as plurality voting and two-round runoff elections, IRV offers a " package[ ] of potential advantages and disadvantages." Issacharoff, supra, at 1089. Dodgson's disappointed "...

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