In a strongly worded opinion made public today, Oakland City Attorney John Russo said it would be illegal for the Oakland City Council to try to block ranked choice voting, also known as instant runoff voting, from going into effect next year. Russo issued the opinion after receiving queries from council members. There had a concern among ranked choice voting advocates that the council might attempt to block the new voting system in 2010, despite the fact that 69 percent of Oakland voters approved it in the 2006 election.
Former state Senator Don Perata, who is running for mayor in 2010, had been working to stop ranked choice voting from happening, expressing concerns that it will confuse seniors and non-English speakers. Perata also would benefit from having two elections under the old format, as opposed to one using ranked choice voting, because he is a prodigious fund-raiser and enjoys strong name recognition. Ranked choice voting allows for a single November election and eliminates the need for a June primary.
But the release of Russo’s opinion appears to put to rest any concerns that ranked choice voting will be blocked or delayed. Russo concluded that once Secretary of State Debra Bowen approved the hardware and software system and county Registrar Dave MacDonald declared that he was ready to conduct a ranked-choice election, then the city has no choice under law but to go ahead with the new voting format. Russo noted that the 2006 measure adopted by a supermajority of voters stated that the city “shall use rank choice voting once the Alameda County Registrar of Voters is able to conduct the election on behalf of the city.” Russo added that neither the council nor any other city official has the legal power to override that mandate.
Oakland Vice Mayor Ignacio De La Fuente, a close ally of Perata’s who also had raised several concerns about implementing the new format next year, said that in light of Russo’s opinion, he believes the council will go forward with ranked choice voting in 2010. However, he said the council needs to make sure that the educational outreach program outlined by Bowen’s office is implemented fully and effectively. He also said the council needs to have an honest discussion about how much it will cost to implement the new voting format next year. While the city will save about $800,000 by not having a June election, De La Fuente said he believes ranked choice voting will cost more than that, although he acknowledged that the city will save money over the long run. MacDonald has said previously that he does not believe that implementing ranked choice voting, including financing an education outreach program, will cost Oakland more than $800,000.
The city council is scheduled to take up the issue of ranked choice voting on January 5. Before Russo’s opinion, there were four solid votes for it on the eight-member council — Rebecca Kaplan, Pat Kernighan, Nancy Nadel, and Jean Quan. Kernighan had expressed some reservations earlier this fall, but said today that she stands firmly committed to the new format. She also co-sponsored the 2006 ballot measure with Nadel.
The release of Russo’s opinion also coincided with a letter from Oakland lawyer Stuart Flashman, who is representing ranked choice voting advocates. Flashman came to the same conclusion as Russo as to why the city must use the new voting format next year. He also said in an interview that his clients will likely sue the city if the council tries to delay or block it. His clients include school board members and good government activists. The Sierra Club and the Wellstone Democratic Renewal Club also concurred with his legal conclusion.
But if the council still tries to attempt to block ranked choice voting and there is ultimately a legal battle over the issue, then Russo’s legal opinion will undermine the council’s position. The council also likely would be forced to hire private attorneys to defend their decision, thereby adding to the city’s costs.
Correction: An earlier version of this story erroneously stated that the clients of Oakland attorney Stuart Flashman included the Sierra Club and the Wellstone Democratic Renewal Club. Both clubs, however, concurred with his legal conclusion concerning the City of Oakland's requirement to implement ranked choice voting.