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DUDUM v. ARNTZ
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.
No. 10-17198.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 15, 2011.
Filed May 20, 2011.
Before: RICHARD A. PAEZ, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.
OPINIONBERZON, 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 HISTORYIn 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
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).
1. See Charles L. Dodgson, A Discussion of the Various Methods of Procedure in Conducting Elections (1873), reprinted in 3 THE PAMPHLETS OF LEWIS CARROLL 33, 35 (Francine F. Abeles & Charlie Lovett eds., 2001).
2. See, e.g., Francine F. Abeles, Introduction to the Political Pamphlets and Letters, in 3 THE PAMPHLETS OF LEWIS CARROLL, supra, at 1, 21-22; Douglas J. Amy, BEHIND THE BALLOT BOX 187-89 (2000); Samuel Merrill, MAKING MULTICANDIDATE ELECTIONS MORE DEMOCRATIC 70 (1988).
3. See Charles L. Dodgson, Circular Accompanying A Method of Taking Votes on More Than Two Issues (1877), reprinted in 3 THE PAMPHLETS OF LEWIS CARROLL, supra, at 59, 59 (emphasis omitted).
4. San Francisco Charter § 13.102, which codifies Proposition A, refers to the City's voting system as both "instant runoff" voting and "ranked-choice" voting. See S.F. CHARTER § 13.102. Election experts also sometimes call this form of voting the "alternative vote system." See, e.g., Samuel Issacharoff, et al., THE LAW OF DEMOCRACY 1095 (2d ed.2002). We refer to the City's system using the initialism for instant runoff voting, although, as will become clear, the label is somewhat misleading.
5. Two or more candidates can be "eliminated" at the same time if the total number of votes they receive is less than the number of votes received by the next-lowest ranked candidate. See S.F. CHARTER § 13.102(e).
6. In an order filed simultaneously with this opinion, we grant Dudum's request for judicial notice of the City's official election results as posted on the Department's website. See Fed.R.Evid. 201(b) (allowing a court to take judicial notice of a fact "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir.2010) (taking judicial notice of official information posted on a governmental website, the accuracy of which was undisputed); United States v. Camp, 723 F.2d 741, 744 n. ** (9th Cir. 1984) (taking judicial notice of a verifiable public record).
7. Dudum challenges only the three-candidate limitation, including the corollary to that limitation that ballots are treated as "exhausted" when three ranked candidates on a ballot are eliminated. Ballots can also be "exhausted" for tabulation purposes under unrestricted IRV. For instance, in both systems, ballots can be "exhausted" when a voter chooses to rank fewer candidates than the system permits and the ranked candidates are eliminated. Likewise, a ballot is "exhausted" if a vote of a given rank would otherwise be attributed to a candidate, but the voter indicated that same rank for more than one candidate. See S.F. CHARTER § 13.102(a).
8. The parties stipulated that several thousand votes have been "exhausted" in each of various elections between 2004 and 2008. For example, in the 2004 supervisorial elections for District Five, 16.2% of all ballots cast were "exhausted" as a result of the elimination of the three candidates ranked on those ballots. The City suggests that the 2004 District Five race was an outlier, pointing to the 2008 supervisorial race for District Nine and the 2006 supervisorial race for District Six. In those races, only 3.4% and 0.2% of ballots were "exhausted" as a result of the elimination of all the candidates ranked on the ballots.
9. Dudum again points to the 2004 race for District 5 Supervisor, in which 22 candidates were on the ballot and the winner was determined in the 19th stage of tabulations. By that stage, 37.44% of ballots cast had been "exhausted." Of those, voters had exercised all three available choices on 16.2% of the ballots. Because the margin of victory in that election was only 311 votes, the argument goes, those involuntarily "exhausted" ballots may have affected the outcome had they not been limited to the three ranks and so not been "exhausted" before the tabulation was complete.
10. The two-round runoff system is distinct from, yet similar to, party primaries, in which political parties select a nominee to run in a general election. See generally Cal. Democratic Party v. Jones, 530 U.S. 567, 572-82, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (discussing state regulation of party primary systems).
11. For example, in San Francisco's 2010 supervisorial election for District 10, the top five candidates received the following percentages of all first-choice votes: Lynette Sweet, 12.07%; Tony Kelly, 11.80%; Malia Cohen, 11.78%; Marlene Tran, 11.51%; and Steve Moss, 11.06%. Cohen received only 5 fewer first-rank votes than Kelly. But, in a two-round run-off system, Cohen would not have proceeded to the runoff election. As it turned out, Cohen won the election under the City's IRV system, because she garnered more second- and third-choice votes than any other candidate. See City and County of S.F. Dep't of Elections Website, Official Ranked-Choice Results Rep., Nov. 2, 2010 Consolidated Statewide Direct Primary Election, Bd. of Supervisors, Dist. 10, available at http://www. sfelections.org/results/20101102/data/d 10. html (last visited May 12, 2011) [hereinafter 2010 Election Results].
12. See Amy, supra, at 16 ("Wasted votes are votes that do not elect someone. If your candidate loses, you have cast a wasted vote.").
13. To illustrate: In San Francisco's 2010 supervisorial election for District 2, Janet Reilly won the highest percentage of all the first-choice votes (41.08%), and Mark Farrell received the second highest percentage of those votes (40.26%). Farrell ultimately won the election, because he received more second-choice votes in the second (and final) calculation stage than did Reilly. See 2010 Election Results, Bd. of Supervisors, Dist. 2, available at http://www.sfelections.org/results/ 20101102/data/d2.html (last visited May 12, 2011). In other instances, the plurality winner after the first stage will eventually be elected. For example, in the 2010 supervisorial election for District 6, Jane Kim received the highest percentage of all first-choice votes (31.40%) and was eventually elected, after twelve stages of calculation. See 2010 Election Results, Bd. of Supervisors, Dist. 6, available at http://www.sfelections.org/results/ 20101102/data/d6.html (last visited May 12, 2011).
14. A voting system called "Condorcet" voting addresses a related problem. In Condorcet voting, each voter ranks his candidate preferences, and the winner is determined by considering all pairwise contests between candidates. "For example, for three candidates (A, B, and C), there are three pairwise contests (A-B, A-C, and B-C). The winner is the candidate who wins all of her pairwise contests." O'Neill, supra, at 335. Like IRV, Condorcet voting does not require two elections, and academics tend to like it because it selects candidates who are highly rated by the majority of voters. But it has problems as well: It allows for the election of a candidate with few first-place votes. Moreover, when there are more than two candidates, the system can fail to produce a winning candidate (e.g., A beats B, B beats C, and C beats A). See Amy, supra, at 188-89; Merrill, supra, at 15; O'Neill, supra, at 337-38 & 337 n. 64.
15. Dudum does not suggest separate analyses for his First Amendment, Due Process, or Equal Protection claims. The Supreme Court has addressed such claims collectively using a single analytic framework. See Anderson, 460 U.S. at 787 n. 7, 103 S.Ct. 1564 ("[W]e base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis. We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment."); LaRouche v. Fowler, 152 F.3d 974, 987-88 (D.C.Cir.1998) (using "a single basic mode of analysis" for such claims). We do the same here.
16. An algorithm is "any well-defined computational procedure that takes some value, or set of values, as input and produces some value, or set of values, as output. An algorithm is thus a sequence of computational steps that transform the input into the output." Thomas H. Cormen, et al., INTRODUCTION TO ALGORITHMS 5 (2d ed.2002); see also 1 NEW ENCYCLOPAEDIA BRITANNICA 266 (15th ed.2007) (defining algorithm as a "systematic mathematical procedure that produces—in a finite number of steps—the answer to a question or the solution of a problem").
17. We, of course, express no views on the constitutionality of this hybrid election system.
18. One might question why receiving a majority of the votes cast for non-eliminated candidates should be the triggering event ending the election. That is, why shouldn't the final step occur when all the recorded votes have been distributed in accord with the tabulation rules, with the winning candidate being the person with more votes than the other remaining candidate after the losers are eliminated and their votes redistributed?
The answer is that, if a candidate receives a majority of the votes cast for non-eliminated candidates, it is mathematically impossible for that candidate to lose if the tabulation is extended until all ranked votes are distributed. To see why that is so, consider an election in which, after several IRV tabulations, 100 ballots containing votes for non-eliminated candidates remain. Candidate A receives 51 of those votes. The votes attributable to him can be thought of as the numerator, and that number plus the remaining 49 votes (spread over the other non-eliminated candidates) the denominator. In later stages of tabulation, the votes counted in the denominator may be redistributed, but the denominator can never increase beyond 100 votes. Thus, even if no further votes are attributed to candidate A, he will always have at least 51% of the votes cast for non-eliminated candidates. And, in fact, the denominator could very well decrease as candidates are mathematically eliminated, and last-ranked votes continue to be recounted for those eliminated candidates (rather than being redistributed to non-eliminated candidates and retained in the denominator). Of course, if the denominator decreases, or if more votes are distributed to candidate A, his majority position can only increase.
It is true that further rounds of tabulation might affect the ultimate vote distribution for non-winning candidates. Imagine that candidates B, C, and D have 24, 13, and 12 votes respectively (totaling 49 votes) when candidate A receives his 51 votes. If, after candidate D is eliminated, every vote attributed to him is redistributed to candidate C, then candidate C will have one vote more (25 votes) than candidate B (24 votes). But no matter how the non-elected candidates are ranked, candidate A wins. Thus, there is no practical difference (in terms of who will be elected) between ending the tabulation when only two candidates remain or when any candidate receives a majority of the votes cast for non-eliminated candidates.
Moreover, in addition to maintaining a majority of the votes cast for non-eliminated candidates, candidate A will always have a plurality of the total votes cast: As we just explained, his 51 votes will always be more than any of the non-eliminated candidates. Likewise, each previously eliminated candidate at some point received the fewest votes in a stage, meaning, of course, fewer votes than candidate A. Moreover, the respective vote totals of each previously eliminated candidate can only decrease thereafter—they cannot obtain further votes, and some of the 1st- and 2nd-rank votes that were attributed to them likely will have been distributed to the 2nd- and 3rd-choice candidates on those ballots.
19. Dudum does not dispute the legality of plurality systems. Rather, he presents simple plurality voting as a preferable alternative to restricted IRV. We are aware of no successful challenge to plurality voting generally. Cf. Edelstein v. City & Cnty. of S.F., 29 Cal.4th 164, 183, 126 Cal.Rptr.2d 727, 56 P.3d 1029 (Cal.2002) ("Plurality rule is not anathema to the federal or state Constitutions.").
20. A voter might regard as objectionable San Francisco's IRV system, even as thus more fully reticulated, because he would prefer to have his vote recorded in the final step of tabulation in favor of his first-choice candidate rather than his third-choice pick. Such an objection would have little force, as the election results reported by the City would reflect the first-choice vote up until the tabulation stage in which the designated candidate received the fewest votes and so could not prevail. Alternatively, a voter could decide to vote for only one candidate, and the ballot would be recorded as a vote for that candidate throughout the tabulation process and in the final election report.
21. The "single transferable vote" system resembles IRV but it is used to elect multiple candidates to a representative body, whereas IRV is used to elect a single candidate to office. See Issacharoff, supra, at 1096.
22. McSweeney went on to decide the case on different grounds, but its reasoning on the counting argument mirrors our own.
23. The "one person, one vote" cases involve instances in which citizens from heavily-populated districts select the same number of legislative representatives as voters from sparsely populated districts, with the result that their votes have less potential impact on the legislative process. See Reynolds, 377 U.S. at 563, 84 S.Ct. 1362. To rectify that "dilution" problem, the Supreme Court has interpreted the Equal Protection Clause to require that the seats in state legislatures "must be apportioned on a population basis." Id. at 568, 84 S.Ct. 1362; see also Bd. of Estimate, 489 U.S. at 693, 109 S.Ct. 1433 (discussing cases).
24. Other courts have reached the same conclusion. See McSweeney, 422 Mass. at 652, 665 N.E.2d 11 (noting, in the context of an unrestricted preferential voting scheme, that "it would be misleading to say that some ballots are counted two or more times. Although these ballots are examined two or more times, no ballot can help elect more than one candidate."); Stephenson v. Ann Arbor Bd. of Canvassers, No. 75-10166 AW (Mich.Cir.Ct. Nov. 1975) (same).
25. As the parties recognize, the Minneapolis election system actually does limit voters to ranking three candidates. But the court in Minnesota Voters did not address that limitation.
26. We express no views on any characteristics of restricted IRV beyond those discussed.
27. We note that a sliding-scale balancing analysis, rather than pre-set tiers of scrutiny, apply to challenges to voting regulations. Thus, there may be instances where a burden is not severe enough to warrant strict scrutiny review but is serious enough to require an assessment of whether alternative methods would advance the proffered governmental interests. Cf. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190 n. 8, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (opinion of Stevens, J.).
28. Dudum objects that the interests the City now relies on were not advanced upon adoption of Proposition A and so are impermissible post hoc rationales. We are far from sure that the normal ability of litigants to advance arguments justifying their out-of-court behavior is suspended in election challenges where, as here, the burden imposed on voting is minimal at best. For instance, in Timmons v. Twin Cities Area New Party, the Court expressly relied on a state interest admittedly not advanced in its briefs, but mentioned during oral argument, implying that the interest also was not advanced prior to the litigation (or else the Court presumably would have noted that fact). See 520 U.S. at 366 n. 10, 117 S.Ct. 1364.
In any event, the post hoc rationale point doesn't matter in this case, as the City's justifications for the three-candidate limit were set forth in the text of Proposition A itself. Proposition A explained that the Director of Elections may limit the number of choices a voter may rank if "the voting system, vote tabulation system or similar or related equipment used by the City and County cannot feasibly accommodate choices equal to the total number of candidates running for each office." S.F. CHARTER § 13.102(b). The interests in avoiding changes to the voting system and equipment that would be confusing or risk seriously disrupting the administration of elections are aspects of the "feasibly accommodate" concern identified in Proposition A, not post hoc rationales.
29. See Lewis Carroll, The Hunting of the Snark: An Agony in Eight Fits (MacMillan Co. 1876).
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