DUDUM v. ARNTZ No. 10-17198.
640 F.3d 1098 (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.
United States Court of Appeals, Ninth Circuit.
Filed May 20, 2011.
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.
Before: RICHARD A. PAEZ, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.
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.
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."
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")
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.
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.
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.
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.
"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 "desideratum" observation, made in 1877, remains true. To this day, "there is no such thing as the perfect electoral system." David M. Farrell, ELECTORAL SYSTEMS: A COMPARATIVE INTRODUCTION 47 (2001).
For instance, in the familiar simple plurality system, sometimes called "first-past-the-post" elections, voters chose one candidate, and the winner is the candidate with the most votes. See id. at 19. Plurality voting is widely used in the United States for single-office elections, including races for mayors and governors. See Amy, supra, at 142.
Plurality voting has the benefit of simplicity: It is easy for voters to use, and also easy for voters to understand how their votes are tabulated and the winning candidate determined. Id. at 143. Plurality voting also avoids the expense and burden of holding a runoff election. Id.
But the system has less auspicious features as well. In contests with several candidates, it privileges candidates with a robust and organized core of support, even if they are strongly disapproved of by most of the electorate. Id. at 144; Farrell, supra, at 21-26. Likewise, plurality voting allows a candidate to win with a small minority of the total votes cast when many candidates are on the ballot. Amy, supra, at 144; Farrell, supra, at 26.
A two-round runoff system, sometimes called a "double-ballot" election, see Peter C. Fishburn, Social Choice and Pluralitylike Electoral Systems, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES 193, 195 (Bernard Grofman ed., 1986), similarly has both significant strengths and troublesome weaknesses. In such a system, long used in many local elections and in some state races, voters select a single candidate in the first round of voting, much like
That majority support, however, is misleading in some respects. When the second- and third-place candidates, or second-, third-, and fourth-place candidates, are relatively close in a first-round election, a runoff scheme can arbitrarily eliminate a candidate who might otherwise have won the election at the runoff stage.
Unrestricted and restricted IRV systems eliminate the need for a separate runoff and ordinarily will result in the election of a candidate with more widespread support than would simple plurality voting. See id. at 55; Farrell, supra, at 65. IRV systems also tend to produce fewer votes cast only for losing candidates—in academic parlance, "wasted votes"
Under restricted or unrestricted IRV, a candidate who did not receive the most number of first-choice votes can be elected.
Moreover, all voting systems in elections with more than two candidates can be manipulated through strategic voting. See Farrell, supra, at 171-74; Fishburn, supra, at 198; O'Neill, supra, at 340-41. In a plurality voting scheme, a voter might choose a candidate who is not his first-choice preference, but who he believes has a realistic chance of winning. In a two-round runoff system, a voter might cast a vote in the first-stage election for a weak candidate, so that his actual first-choice candidate will face that weak candidate in the runoff. See Fishburn, supra, at 199. The risk of strategic voting exists in IRV but is less severe than in plurality voting or the first stage of a runoff election: Voters are more free to vote their true preferences, because they face less of a threat of having their votes entirely "wasted" on unsuccessful candidates. See Amy, supra, at 52; Merrill, supra, at 105; O'Neill, supra, at 340.
In sum, restricted IRV, like every election system, offers a menu of benefits and limitations. But that observation does not mean it is a constitutionally acceptable system, so we now turn to Dudum's constitutional objections to the City's restricted IRV system.
B. The Burden on Voters
Restrictions on voting can burden equal protection rights as well as "interwoven strands of `liberty'" protected by the First and Fourteenth Amendments—
Recognizing the need of States and municipalities "to assure that elections are operated equitably and efficiently," id., we apply a "flexible standard" when considering constitutional challenges to election regulations:
Id. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). When the burdens on voting imposed by the government are "severe," strict scrutiny applies, and the "regulation must be `narrowly drawn to advance a state interest of compelling importance.'" Id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). But voting regulations are rarely subjected to strict scrutiny. See Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir.2008). We have repeatedly upheld as "`not severe' restrictions that are generally applicable, even-handed, politically neutral, and. . . protect the reliability and integrity of the election process." Rubin v. City of Santa Monica, 308 F.3d 1008, 1014 (9th Cir.2002). Where non-severe, "[l]esser burdens" on voting are at stake, we apply "less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions."
We have already explained some of the structural limitations inherent in restricted IRV. For instance, voters are unable to reconsider their choices after seeing which candidates have a chance of winning, and some voters might be unfamiliar with the system. Dudum does not, however, challenge those inherent features of the City's
Dudum first contends that the treatment accorded "exhausted" ballots as the vote tabulation proceeds under the City's restricted IRV scheme is akin to prohibiting certain voters from voting in an election, and so imposes a severe, or at least a serious, burden on voters' constitutional rights. To support that characterization, Dudum points out that IRV replaced a two-round runoff system, and that explanations of how IRV works often analogize the successive vote calculation steps to a series of elections. For instance, the supervisors who supported adoption of Proposition A stated in their official ballot argument that "[t]he `instant' runoff works much like December's `delayed' runoff."
But the analogy is just that—an analogy. Upon examination, the analogy is off the mark in describing the real impacts of restricted IRV on voters' opportunities to cast ballots.
In actuality, all voters participating in a restricted IRV election are afforded a single and equal opportunity to express their preferences for three candidates; voters can use all three preferences, or fewer if they choose. Most notably, once the polls close and calculations begin, no new votes are cast. To determine the winner of the election based on that single set of votes cast, restricted IRV uses an algorithm.
In contrast, a two-round runoff system involves at least two rounds of voting, or inputs, explaining why it is sometimes referred to as a "double-ballot" election. See Fishburn, supra, at 195. For instance, in a two-round runoff system, even if a voter's chosen candidate in the first round successfully proceeds to the runoff election, that voter is still afforded an opportunity in the runoff election to select a different candidate, or not to vote at all. In a restricted IRV system, in contrast, if that voter chooses a successful candidate in one round, he is not afforded the opportunity to switch his vote to a different candidate as the tabulation progresses. That is so because restricted IRV considers only one round of inputs, i.e., votes.
Restricted IRV, of course, can be used in place of a two-round runoff election, which is what occurred in San Francisco and explains why the city supervisors compared the two. But restricted IRV does not replicate a two-round runoff system because, as we just explained, in two-round runoffs, voters cast ballots twice—that is, make and record their choices twice—
Dudum's contention that restricted IRV threatens to exclude some voters from voting is therefore incorrect. The contention sidesteps the basic fact that there is only one round of voting in restricted IRV.
Aside from his two-round analogy, Dudum points to several cases in which qualified individuals were denied an opportunity to vote on certain issues and the resulting burden on the right to vote was treated as significant. But because restricted IRV involves only one round of voting, those cases are inapplicable here.
Partnoy v. Shelley, 277 F.Supp.2d 1064 (S.D.Cal.2003), for example, concerned a requirement that, unless voters voted either "yes" or "no" on the recall of a governor, their votes on any successor candidates for governor would not be counted. Id. at 1071. The defendants argued that the recall and the successor issues were part of one compound question, and no one was prevented from voting on that one question. The court disagreed, reasoning that the voters were faced with two separate questions and holding that it would be a severe burden to force voters to choose between either voting on an issue upon which they did not want to vote or having their votes for a gubernatorial successor not counted. Id. at 1074-75. The court held the requirement unconstitutional, because it concluded that the state failed to advance narrowly-tailored compelling interests to justify it. Id. at 1079.
Assuming it was correctly decided—which we do not determine—Partnoy is not instructive here. In that case there were two questions before the voters: Should the governor be recalled? If so, who should succeed him? Those two questions were conceptually separate; a voter could wish to express a view on only one of the questions, or have a strategic reason to vote on one but not the other. In contrast, voters in the San Francisco elections are asked to cast a vote on one issue: Who should be elected to the particular office?
Nor is Ayers-Schaffner v. DiStefano, 37 F.3d 726 (1st Cir.1994)—again, assuming without deciding that we would decide it the same way as did the First Circuit—at all instructive. In that case, after concluding that an election was defective, the state ordered a second curative election but limited participation to people who had voted in the original balloting. Id. at 727. The court held that the state's restriction imposed a severe burden on the excluded voters' right to vote, id. at 728, and, as the state failed to advance compelling interests justifying the limitation, it was unconstitutional. Id. at 730.
The problem in Ayers-Schaffner was that otherwise eligible voters were not allowed to vote in a determinative election. Here, to reiterate, voters who participate in the restricted IRV system are not excluded from any election or opportunity to vote, so no comparable burden is imposed on voting rights.
Finally, Dudum notes that in two-round runoff elections, some jurisdictions use an IRV-like system to tabulate the votes from certain absentee ballots. See ARK. CODE § 7-5-406; S.C. CODE § 7-15-405. According to Dudum, IRV must be equivalent to a series of elections, because in those jurisdictions absentee voters have votes counted using an IRV-like approach in more than one election.
This example is not particularly relevant, as it concerns a hybrid system which, unlike the San Francisco IRV scheme, does treat groups of voters differently with regard both to numbers of ballots cast and to the method of tabulating the ballots. The hybrid system, in effect, adds together apples and oranges: Absentee voters, a
If anything, properly understood, Dudum's example highlights that IRV is not equivalent to two-round runoff elections: In the hybrid system, each in-person voter has the opportunity to vote differently in the runoff, even if he voted in the first-round for a candidate who continues to the second round; in contrast, an absentee voter who voted for a candidate who makes the runoff has his vote automatically cast again for that candidate, even if he would now prefer the other candidate. In other words, the absentee voter is not afforded the same opportunity as in-person voters to reassess his preferences in the runoff election; the in-person voter votes twice using two ballots, but the absentee voter votes once using a single ballot.
In sum, the City's restricted IRV system is not analogous to limitations on voting in successive elections, because in San Francisco's system, no voter is denied an opportunity to cast a ballot at the same time and with the same degree of choice among candidates available to other voters. Neither Dudum's analogies nor the cases he relies upon persuade us that the City's election system imposes any serious burdens on voters' constitutional rights by providing unequal opportunities to cast ballots.
Aside from characterizing San Francisco's restricted IRV system as a limitation on casting ballots, Dudum tries a second tack: He maintains that the tabulation scheme under San Francisco's system burdens voters' constitutional rights to vote by effectively discarding, rather than counting, the votes from "exhausted" ballots.
In support of this characterization, Dudum points to the text of two provisions in the San Francisco Charter: First, according to the Charter, voters whose ballots are "exhausted" do not have their ballots "counted in further stages of the tabulation." S.F. CHARTER § 13.102(a). Second, a candidate wins the election when he receives "a majority of the votes from the continuing ballots," meaning the nonexhausted ballots. Id. § 13.102(c) & (d) (emphasis added). Dudum reads this text as meaning that "exhausted" ballots are discarded, and so not counted, in determining the election's ultimate outcome.
An examination of how restricted IRV works, however, indicates that the supposed inequity Dudum has identified is one of surface appearances and semantics, not substance. The algorithm used to determine the winner in an election conducted pursuant to the City's IRV system can be elaborated so that the outcome is mathematically identical, yet the features forming the basis of Dudum's characterization of the system as not counting some votes
To illustrate, the tabulation scheme could be spelled out and recorded more fully than it is now as follows: When a candidate receives the fewest votes in a stage, any ballots that would otherwise be "exhausted" by that candidate's last-place finish could continue to be reflected as a vote for that candidate in subsequent rounds. Votes that the candidate received from ballots with second- or third-choice candidates remaining would still be transferred to the second- or third-choice candidates. In other words, even though last-place candidates could no longer mathematically win the election, and could not obtain further votes, one could clutter the tabulation process by showing their votes on the tabulation tables even after they had been proven incapable of prevailing. The winner could then be defined as the candidate who receives a plurality of the total votes cast (including votes cast for candidates mathematically eliminated in prior stages), as long as he also receives a majority of the votes cast for candidates who were not mathematically eliminated previously.
This "show your work" alternative—to quote many high school teachers—is more cumbersome than San Francisco's actual tabulation regime, but it accomplishes precisely the same result. As pertinent to Dudum's challenge, the rephrasing makes explicit what is implicit in the current scheme: "Exhausted" ballots are counted in the election, they are just counted for losing candidates in the tally of total votes. In the terms used by election experts, these are "wasted" votes, not because they aren't counted, but because they were cast for candidates not ultimately elected. Notably, both IRV and restricted IRV tend to result in fewer entirely "wasted" votes than plurality voting, because voters whose first-choice candidate is eliminated may choose the winning candidate as their second- or third-choice pick. See Amy, supra, at 155.
All this is to say that "exhausted" ballots represent votes for losing candidates. "Exhausted" ballots are not disregarded in tabulating election results, and the result of not "counting" them is identical to counting them while explicitly recognizing that the system often produces a winner who attains a plurality, not a majority, of the total votes cast. Given this substantive equivalence, Dudum's objection that votes may not be "counted" at the determinative tabulation steps reflects only the Charter's current phrasing, not any actual burden on voting rights.
The only court to have addressed a similar argument has reached the same conclusion. At issue in McSweeney v. City of Cambridge, 422 Mass. 648, 665 N.E.2d 11 (1996), was an unrestricted form of preferential voting called the "single transferable vote."
In short, Dudum's contention that the City's system discards votes is incorrect. Instead, the system "counts" all the ballots, but the final tabulation recognizes that some of the ballots ranked only losing candidates. Like his inaccurate comparison of the algorithm used in restricted IRV to a series of elections, Dudum's "counting" argument reveals an at most minimal—and perhaps nonexistent—burden on voters' constitutional rights.
Dudum's final contention regarding the voting burden imposed by the restricted IRV system is that even if restricted IRV does not prevent some voters from voting (it doesn't, as we explain above), and even if all votes are counted (they are, for the reasons just given), San Francisco's restricted IRV system is nonetheless unconstitutional because it results in the dilution of certain votes. Specifically, Dudum maintains that "some voters—those who vote for continuing candidates—only have one vote counted in `the election'; other voters, however, have votes counted for three different candidates." Therefore, the argument goes, the City's IRV system violates the equal protection guarantee of "one person, one vote." See Bd. of Estimate of New York v. Morris, 489 U.S. 688, 692, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989) (quoting Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)).
Once again, Dudum's contention mischaracterizes the actual operation of San Francisco's restricted IRV system and so cannot prevail. In fact, the option to rank multiple preferences is not the same as providing additional votes, or more heavily-weighted votes, relative to other votes cast. Each ballot is counted as no more than one vote at each tabulation step, whether representing the voters' first-choice candidate or the voters' second- or third-choice candidate, and each vote attributed to a candidate, whether a first-, second- or third-rank choice, is afforded the same mathematical weight in the election. The ability to rank multiple candidates simply provides a chance to have several preferences recorded and counted sequentially, not at once.
Several courts have rejected variants of Dudum's dilution argument. Most recently, Minnesota Voters Alliance v. City of Minneapolis, 766 N.W.2d 683 (Minn.2009), was a challenge to an IRV scheme on the ground that voters whose first-choice candidates were eliminated were afforded
Dudum attempts to distinguish Minnesota Voters's rejection of the dilution claim by arguing that San Francisco's system is different than Minneapolis's, because the former restricts voters to choosing three candidates.
If the purported problem is that some voters have votes counted for more than one candidate as the tabulations progress (although never for more than one at any tabulation stage), then restricting the number of candidates voters can rank should reduce Dudum's dilution concerns, not exacerbate them. And insofar as Dudum's dilution argument shifts to a concern that the voters whose ballots become "exhausted" have their votes diluted because their votes do not "count" in the determinative calculation stages, we have already explained that that is so only because their candidates have no chance of prevailing. Any distinction between San Francisco's and Minnesota's systems (as considered in Minnesota Voters) therefore does not help Dudum's dilution claim.
* * *
Again, "every electoral law and regulation necessarily has some impact on the right to vote." Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir.2003). The City's restricted IRV scheme is no different. Like every electoral system, it offers an amalgam of advantages and disadvantages. The burdens Dudum identifies, however, are largely ephemeral, disappearing upon examination. The restricted IRV scheme does not provide disparate opportunities for any voter to cast additional ballots or votes. The appearance that some votes are not "counted" is just a product of how the algorithm operates for efficiency's sake; the result would be identical were the "exhaustion" feature eliminated, and the "exhausted" ballots recorded and counted throughout the process for what they are—votes for losing candidates. As the votes from "exhausted" ballots are taken into account in the election, as much as "wasted" votes ever are, the practical burden on voters is no different than in other election systems. Finally, Dudum's vote dilution argument fails as well, because the ability to rank preferences sequentially does not affect the ultimate weight accorded any vote cast in the election.
Therefore, if the characteristics of the City's system Dudum has identified impose any burdens on the right to vote, they are minimal at best. For the sake of completeness, we shall assume some burden is imposed, however limited, and so consider whether the restricted IRV system serves
C. The Governmental Interests
Because restricted IRV does not impose severe burdens on voting rights, we do not apply strict scrutiny. See, e.g., Timmons, 520 U.S. at 358, 117 S.Ct. 1364; Pest Comm. v. Miller, 626 F.3d 1097, 1106 (9th Cir.2010). And here, the City's "important regulatory interests" are more than substantial enough to justify the minimal at best burdens imposed by the City's chosen system. Timmons, 520 U.S. at 358, 117 S.Ct. 1364; Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir.2010).
Before addressing the City's proffered interests, we emphasize that the City is not required to show that its system is narrowly tailored—that is, is the one best tailored to achieve its purposes. See Timmons, 520 U.S. at 358, 117 S.Ct. 1364. Latching onto a phrase from Anderson v. Celebrezze, Dudum contends otherwise, insisting that the governmental restrictions must be "necessary to burden the plaintiff's rights," 460 U.S. at 789, 103 S.Ct. 1564 (emphasis added). But later cases refute Dudum's reading of Anderson, making clear that when a challenged rule imposes only limited burdens on the right to vote, there is no requirement that the rule is the only or the best way to further the proffered interests. See Timmons, 520 U.S. at 365, 117 S.Ct. 1364 ("[B]ecause the burdens the [challenged] ban imposes on the party's associational rights are not severe, the State need not narrowly tailor the means it chooses to promote [its interests]."); Pest Comm., 626 F.3d at 1110 (holding that the district court correctly applied the flexible balancing test and "was not obliged to consider whether Nevada's system could or should be more narrowly tailored"); Caruso, 422 F.3d at 862 (same).
Such respect for governmental choices in running elections has particular force where, as here, the challenge is to an electoral system, as opposed to a discrete election rule (e.g., voter ID laws, candidacy filing deadlines, or restrictions on what information can be included on ballots). Discrete election rules generally further limited identifiable interests; a reviewing court can assess the likely effects of entirely eliminating the challenged rule. Cf. Burdick, 504 U.S. at 430, 112 S.Ct. 2059 (state prohibition on write-in voting); Anderson, 460 U.S. at 782, 103 S.Ct. 1564 (state early-filing deadline); Rubin, 308 F.3d at 1011 (regulation prohibiting a candidate from designating himself a "peace activist" on the election ballot). In contrast, the City must use some overall system for casting ballots, tabulating votes, and determining the outcome of elections. It cannot select a system that best serves all the multiplicity of interests implicated in an election, as no such system exists.
Dudum challenges only the three-candidate limitation, not IRV generally. In light of that limited challenge, one would expect Dudum to argue that the interests advanced by the City in favor of the three-candidate restriction are inadequate. But Dudum does not contest those specific justifications. Instead, he argues that the interests advanced in favor of IRV generally can be served just as well by either a plurality system or a two-round runoff scheme. Dudum's logic seems to be that if the three-candidate limit imposes a burden on voting rights, and if the City maintains that it cannot eliminate that restriction, then restricted IRV should be compared to election systems whose constitutionality is not in question.
In the end, then, Dudum is effectively asking the court to choose between electoral systems (i.e., between restricted IRV, plurality voting, or two-round runoff elections). As explained, however, electoral systems serve diverse interests with various degrees of success. That is why, absent a truly serious burden on voting rights, "it is the job of democratically-elected representatives to weigh the pros and cons of various [election] systems." Weber, 347 F.3d at 1107.
The City advances several interests justifying the minimal at best burdens of which Dudum complains. Some of those interests concern the three-candidate restriction, and some support IRV as compared to the two-round runoff system it replaced.
First, the City adduces evidence that (1) the current voting machines cannot process ballots allowing unlimited ranking, and (2) permitting voters to rank more than three candidates might exceed the memory capacity of the machines now in use. The City maintains that the state certification necessary for new voting software or hardware or for redesigned ballots could take months or years, so allowing unlimited choices would disrupt the City's preparation for upcoming elections. Moreover, contends the City, (1) because some elections include many candidates, allowing unlimited rankings would require either extremely large, confusing ballots or multiple ballots for each voter; (2) multiple ballots could lead to calculation errors; and (3) in testing, voters regarded ballots offering four choices as confusing. Notably, Dudum introduced no evidence suggesting that San Francisco could conduct unrestricted elections without running into the problems identified, and does not now argue that the City's interests are inadequate to justify the three-candidate restriction.
Assuming for the moment the constitutional validity of IRV systems generally, then, the three-candidate restriction furthers important interests in maintaining the orderly administration of San Francisco's elections and in avoiding voter confusion. See, e.g., Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 225-26, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (noting that "protecting voters from confusion" is a "compelling governmental interest"); Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) ("[K]eeping . . . ballots within manageable, understandable limits is of the highest order," because "`laundry list' ballots discourage voter participation and confuse and frustrate those who do participate."); Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849,
We could stop there, as Dudum purports to challenge only the three-rank restriction, not IRV generally. But even if we expand the comparative inquiry to other election systems, as Dudum would have us do, his challenge fares no better.
The City points to evidence that restricted IRV will save money compared to a two-round runoff system (the election system in place prior to IRV), as each runoff election costs the City between $1.5 million and $3 million. The interest in alleviating the costs and administrative burdens of conducting additional elections can be "a legitimate state objective" that also justifies the use of IRV, given the minimal at best burdens the system imposes on voters' constitutional rights to vote. See, e.g., Bullock, 405 U.S. at 147, 92 S.Ct. 849; Lemons, 538 F.3d at 1104 (holding that the minimal burden imposed by a state's system for verifying referendum petition signatures was justified by the "administrative burden" another system threatened to impose); Weber, 347 F.3d at 1106 (recognizing a state's interest in saving money).
Further, restricted IRV advances the City's legitimate interests in providing voters an opportunity to express nuanced voting preferences and electing candidates with strong plurality support. See Storer v. Brown, 415 U.S. 724, 732, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (noting a state interest in "assur[ing] that the winner is the choice of a majority, or at least a strong plurality, of those voting"). Unlike a two-round runoff election, restricted IRV will not always produce a candidate with majority support. But restricted IRV also does not limit voters' choices to only two candidates, and so it allows voters to express a wider range of preferences. Moreover, in practice, the ability to express more nuanced preferences means that candidates with greater plurality support (although not necessarily majority support) tend to be elected, as compared to a traditional plurality system. See McSweeney, 422 Mass. at 654, 665 N.E.2d 11 ("[A] preferential scheme, far from seeking to
In sum, we have no difficulty holding that these important governmental interests are more than sufficient to outweigh the extremely limited burdens—if any—that the restricted IRV features Dudum challenges impose upon San Francisco's voters.
If the aspects of the City's restricted IRV scheme Dudum challenges impose any burdens on voters' constitutional rights to vote, they are minimal at best. Moreover, the City has advanced valid, sufficiently-important interests to justify using its system. We, of course, express no views on the wisdom of using IRV, restricted IRV, or any other electoral method. There is no perfect election system, and our search for one would prove no more successful than a hunt for the mythical snark.
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