Santos’ RCV Legal Argument May Be Difficult To Defend

By Steven Tavares

“Upon reflection, I am sorry I supported ranked-choice voting,” San Leandro Mayor Tony Santos wrote Friday to the city council. Once one of the voting system’s most staunchest supporters for implementation this fall, Santos has soured on RCV after unofficial results show Stephen Cassidy pulling off an upset of the incumbent mayor, despite trailing in first-place votes.

“There are too many variables and questions in ranked choice voting that I now believe it should be scrapped,” said Santos. Along with Councilman Jim Prola, Santos had pushed for adoption of RCV as far back as late last year. The primary benefit being its long-term cost effectiveness. RCV does away with the need of two elections by consolidating it into one.

Following the likelihood Cassidy will become the first candidate in city history to win election against a sitting mayor, Santos now believes lessening the confusion he says is associated with RCV outweighs its cost-savings. “Even if there are additional costs,” he says, “those costs are worth it in order to have a fair and impartial election.”

Santos, who is out of the country on vacation until the end of the month, does not plan to concede the election to Cassidy just yet. There have been no formal calls for a recount or legal maneuvers. The Alameda County Registrar of Voters must certify results of the election by Nov. 30. Updated results from this weekend increased Cassidy’s lead in ranked-choice voting to 231 votes and narrowed his deficit in first-place votes to 75 against Santos. The latest tally gives Cassidy 50.57 percent of the votes after six rounds to Santos’ 49.43 percent, but a lawsuit filed Nov. 8 in federal court asserts, among other things, races including the San Leandro mayor’s race did not return a true majority winner. The case is one of the pillars Santos’ campaign points toward invalidating this month’s results, with an eye towards running a separate special election runoff early next year.

The City Charter calls for a candidate to be victorious after securing a “majority plus one.” Santos contends Cassidy received just 44 percent of the 23,493 ballots cast in San Leandro. The same argument could be made in the Oakland mayor’s race where Don Perata sat in the same position as Santos, but chose to concede the election last Thursday to Jean Quan.

Language in the charter first adopted by voters after approving Measure F in 2000 and by the council last January when it approved the use of ranked-choice technology may be problematic to Santos’ argument. Measure F, which passed with 63 percent approval called for a run-off system to be enacted if a candidate did not receive a majority plus one of the vote and allowed for a range of methods to reach that majority, including ranked-choice voting “when such technology is available to the city.” The city ordinance approved Jan. 11 by the council and including Santos, appears to bolster the argument in favor of the election results thus far. “All continuing ballots for all continuing candidates shall be counted again in a new round,” it reads

The recent suit against the City of San Francisco is a lower court appeal of a recent ruling in favor of ranked-choice voting. San Francisco has used RCV since 2004. The suit asserts the use of “restricted” ranked-choice voting disenfranchises voter who they say happened to not vote for the candidates who subsequently advanced to the final rounds of tabulation. By limiting voters to rank just three preferences no matter the size of the field, the results give more weight to some votes over others, it says. Incidentally, this was the fear communicated by Councilwoman Diana Souza earlier this year when she made the argument in opposition to RCV. It was Souza and Councilwoman Joyce Starosciak who unsuccessfully attempted to put off RCV’s implementation to another election on two occasions.

Despite similarities to Santos’ case in San Leandro it is unlikely the appellate case will be decided anytime in the near future. As it stands, Cassidy will be sworn-in as mayor Jan. 1, 2011.