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Judge Nixes IRV Ballot Suit

By J. Douglas Allen-Taylor
Tuesday January 06, 2004

Showing equal amounts of disdain for, impatience with, and incredulity at the arguments of Berkeley activist-attorney Rick Young, Alameda County Superior Court Judge James Richman late last week denied Young’s petition to amend or delete the ballot arguments against Berkeley’s Instant Runoff Voting (IRV) measure. 

The judge’s expedited ruling, held after a half-hour hearing in Oakland court, means that the anti-IRV arguments signed by City Councilmembers Gordon Wozniak, Maudelle Shirek, and Betty Olds will appear as originally written on next March’s Berkeley ballot. The referendum will be listed as Measure I. 

In papers filed with the court, Young charged that “both the Argument Against and the Rebuttal to the Argument In Favor of Measure I contain statements that are false, misleading or inconsistent with the requirements of” California electoral law. California courts in the past have not allowed arguments for or against measures on the ballot which have been shown to be false or misleading. 

Young’s assertion was supported by Berkeley City Councilmember Dona Spring, a strong IRV supporter, who was not present at the hearing, but told the Daily Planet in a telephone interview that “there were three major untruths and a lot of red herrings” in the anti-IRV ballot arguments.  

Among other items from the ballot arguments,” Young cited statements that “IRV systems are currently not legal in California,” “in most forms of IRV all votes are not counted,” and “IRV costs more.” All of these ballot argument statements, Young asserted, were either false or misleading. 

But Young withered under close questioning by Judge Richman, who chastised the attorney for asking the court to, in the judge’s words, “throw out ballot arguments without providing any proof that the arguments were false. Do you think that this is how elections should work, in your heart of hearts?” 

Richman told Young that “what you ought to do is go out during the election, go into the coffee klatches in Berkeley, and tell people that Mr. Wozniak is wrong in his arguments, and why. You shouldn’t be asking the court to do this.” 

In his argument, Young made several references to an opinion on Instant Runoff Voting by “Secretary of State Bill Lockyer,” prompting Berkeley attorney Fred Feller to say at one point, “There has been only one untrue statement established at this hearing, and that is that Bill Lockyer is not now, nor has he ever been, Secretary of State.” Lockyer is state Attorney General. Feller represented Wozniak and Berkeley Transportation Commission chairperson Dean Metzger, an anti-IRV ballot argument signator. 

Asked by the judge if he wanted to add anything to the discussion, Deputy City Attorney Zack Cowan smiled, held up his hands, and said, “I’m just here to watch.” Cowan represented City Clerk Sherry M. Kelly. 

Young conceded that he was not properly prepared for the hearing, stating, “I’ve only been an attorney for two years, I’ve never done this kind of thing before [filed against a ballot argument], a friend of mine was put in the psych ward, and I was sick this weekend.” 

In the courthouse hallway following the judge’s terse ruling of “petition for writ of mandate denied,” Young said he still considered the failed lawsuit a victory. 

“Gordon [Wozniak] got the message,” he said. “It’s not okay to mislead the public. And if you try to do that, you’ll find yourself in court.” He also said he would like to debate the issue with the Councilmember before voters go to the polls in March “if I have time to prepare.” 

Wozniak said he did, in fact, receive a message, but not necessarily the one intended by Young. “Some of the people who signed the ballot arguments were getting served by Mr. Young at six in the morning, with papers that said they might be liable for court costs,” the Councilmember said. “One person came to me as a result and wanted to take her name off of the ballot arguments. This was an attempt at intimidation. It’s a free speech issue. It’s the kind of tactic that doesn’t belong in Berkeley.” 

The anti-IRV ballot arguments were also signed by Metzger, 2002-03 ASUC President Jesse Gabriel, Berkeley Police Review Commission chair William White, Panoramic Hill Association President Janice Thomas, Community Environmental Advisory Commission chair Sara MacKusick, and Berkeley business executive Helen Meyer. Young’s petition listed City Clerk Kelly as a respondent and the nine listed signators as “real parties in interest.” 

Wozniak was the only named party who appeared in court during the hearing, and Young referred almost exclusively to the Councilmember in making his arguments to the court. The petition, legal arguments, and the judge’s decision all had to be rushed through to meet a noon, Friday deadline for any changes to be made to the ballot statements. 

Instant Runoff Voting eliminates runoffs by allowing voters to rank candidates in a 1-2-3 order on the first ballot of an election. Under most runoff election systems, if no candidate wins a majority of the votes on the first ballot, voters must come back to the polls for a second time to choose between the top two vote-getters.  

Under IRV, however, the last-place candidate is eliminated and the “second choice” votes of those who voted for the eliminated candidate are passed on to the remaining candidates. The process is continued—eliminating the bottom candidates and passing on their next choice votes—until one candidate eventually gets a majority. 

IRV made the March Berkeley ballot after a vote of Berkeley City Council. If passed, the runoff system would not go into effect until certain conditions are in place, including the development of election software that would allow it to be consolidated with a general Alameda County election. 

IRV has been approved for implementation in San Francisco, San Leandro, Santa Clara counties, and in limited instances in Oakland, but has not yet been used in any election in the Bay Area.