NOS. 05-35780 & 05-35774 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WASHINGTON STATE REPUBLICAN PARTY, et al., Appellees/Plaintiffs, WASHINGTON STATE DEMOCRATIC CENTRAL COMMITTEE, et al. Appellees/Plaintiff Intervenors, LIBERTARIAN PARTY OF WASHINGTON STATE, et al., Appellee/Plaintiff Intervenors, v. DEAN LOGAN, King County Records & Elections Division Manager, et al., Defendants, STATE OF WASHINGTON, et al. Appellants/Defendant Intervenors, WASHINGTON STATE GRANGE, Appelant/Defendant Intervenor ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE No. C05-0927 The Honorable Thomas S. Zilly United States District Court Judge AMICI CURIAE BRIEF OF FAIRVOTE – THE CENTER FOR VOTING AND DEMOCRACY, JACK BENNETTO, JOHN R. BURBANK, GEORGE K. CHEUNG, JEROME R. CRONK, TODD DONOVAN, GERRICK W. DUDLEY, ROBERT KELLER, DAVID KORTEN, FRANCES KORTEN, BECKY LIEBMAN, KRIST NOVOSELIC, AND NADINE SHIROMA, IN SUPPORT OF APPELLEES IN SUPPORT OF AFFIRMANCE Jerome R. Cronk, Attorney at Law WSBA #357 17544 Midvale Avenue North, Suite 107 Shoreline, WA 98133 (206) 542-3181 Page 1 RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and Ninth Circuit Rule 26.1, Amicus Curiae FairVote – The Center for Voting and Democracy (“FairVote”) hereby states that it is a non-profit corporation organized under the laws of the District of Columbia under the name “Center for Voting and Democracy.” FairVote has no parent corporation, and no publicly traded company owns 10 percent or more of the stock of FairVote, given that FairVote issues no stock and thus has not shareholders. Dated: October 25, 2006 ____________________________ Jerome R. Cronk WSBA #357 Attorney at Law 17544 Midvale Avenue North, Suite 107 Shoreline, WA 98133 Attorney for Amici Curiae FairVote – The Center for Voting and Democracy, et al. Page 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES………………………………………………….……...….6 INTERESTS OF AMICI CURIAE ……………………………………………………………………………….8 STATEMENT OF THE CASE…………………………………………..12 SUMMARY OF ARGUMENT ……………………………………….…14 ARGUMENT………………………………………...……………………17 I. VOTING SYSTEMS ARE COMPOSED OF MULTIPLE PARTS WITH DISCRETE POSITIVE AND NEGATIVE EFFECTS THAT SHOULD BE ANALYZED AND CAN BE MODIFIED SEPARATELY…………………………….……………………...…17 A. No Voting System Is Perfect, But All Can Be Tailored to Better Meet Desired Goals……………………………….…………………………….17 B. At Least Some of Initiative 872’s First Amendment ProBlems Arise From Electoral Consequences Not Intrinsic to the Top- Two System……………………………...…………………..………..18 II. MODIFYING THE TOP-TWO PRIMARY WITH A RANKED CHOICE VOTING METHOD WOULD ALLEVIATE THE FIRST AMENDMENT BURDENS PLACED ON PARTIES BY THE SELF-IDENTIFICATION PROVISION OF INITIATIVE 872, WHILE RETAINING INCREASED VOTER CHOICE……………………………………………………………..21 Page 3 A. The Top-Two Primary System in Question Could Be Easily Modified to Use a Ranked Choice Voting System, Without Losing the Defining Characteristics of the Challenged Top- Two System…………………………………………………….21 B. Ranked Choice Voting Systems Would Eliminate the Danger of Multiple Candidates Diluting a Party’s Overall Electoral Strength……………………………………………………..….22 C. Modifying Initiative 872 with a Ranked Choice Voting Method Would Allow for the Self-Identification Provision to Be Dispensed with Entirely While Allowing for Parties to Nominate or Endorse Candidates Without Diminishing the Intended Voter Choice Benefits………………………………24 D. Ranked Choice Voting Methods Have Been And Are Currently Used In The United States And In Other Countries…………………………………………..…………...26 E. Washington State Has in the Past Used Ranked Choice Voting Methods, and Interest in these Fair and Efficient Voting Systems Grows Throughout the State……………………………………...…………………...…26 F. Additional Methods of Implementing Ranked Choice Voting Systems In Washington Exist, And Their FlexiBility In Implementation Allows Them To Be Used Both Within or In Place of the Top-Two System………………………………….27 1. A One-Round “Blanket” Ranked Choice General Election Without Either a Primary or Any Kind of Nominating Process…………………………………..…..28 2. Multi-Seat Districts with a Choice Voting Method for the Election of State Representatives………..………………30 III. THE PROPOSED REFORMS ARE VALID UNDER FEDERAL LAW AND THE FEDERAL CONSTITUTION……………………………….………………….33 Page 4 A. Ranked Choice Voting Methods Are Fully CompatiBle With The Voting Rights Act As They Protect Minority Voting Strength In Multi-Seat Districts………………………………..34 B. A Ranked Ballot Voting Method Is Consistent With The United States Constitution’s One Person One Vote Requirement……36 IV. THE PROPOSED REFORMS ARE ALL VALID UNDER THE WASHINGTON STATE CONSTITUTION…………….……..…37 CONCLUSION………………………….……………………………..….38 CERTIFICATE OF COMPLIANCE ………………………………..….40 Page 5 TABLE OF AUTHORITIES PAGE Cases Holder v. Hall , 512 U.S. 874 (June 30, 1994)……………………………...34 McSweeney v. City of Cambridge , 665 N.E.2d 11 (Mass. 1996)…………..35 Moore v. Election Comm’rs of Cambridge , 35 N.E.2d 222 (Mass. 1941)…36 State v. Nichols , 50 Wash. 508, 97 P. 728 (1908)……………………...27, 37 Thornburg v. Gingles , 478 U.S. 30 (1986)…………………………………34 Wesberry v. Sanders , 376 U.S. 1 (1964)……………………………….32, 36 Statutes and Regulations 42 U.S.C. § 1973(b) (2004)………………………………………………...34 2005 Wa. ALS 153…………………………………………………………27 Vancouver, WA City Charter § 9.03 (2004)……………………………….27 Constitutions Wash. Const. Art. I, § 19…………………………………………………...37 Wash. Const. Art. II, § 43………………………………………………….37 Other Authorities Douglas Amy, Real Choices, New Voices (1993)………………………….35 Page 6 Kenneth J. Arrow, Social Choice and Individual Values (Yale University Press 1963)…………………………………………………………………17 Hugh Bone and Belle Zeller, The Repeal of PR in New York City: Ten Years in Retrospect , American Political Science Review 42, 1127-48 (December 1948)………………………………………………………………………..30 Richard Derham, The “Cajun” Primary: Unintended Consequences in Political Reform, Washington Policy Center (January 1, 2005) at http://www.washingtonpolicy.org/ElectionLaws/PNPrimary 01-10.html… .30 Steven J. Mulroy, Alternative Ways Out: A Remedial Road Map for the Use of Alternative Electoral Systems as Voting Rights Act Remedies , 77 N.C. L. Rev. 1867………………………………………………………………26, 35 Steven J. Mulroy, The Way Out: A Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies , 33 Harv. C.R.-C.L. L. Rev. 333 (1998)………………………………………………………………….22 United States Census Bureau , Geographical Mobility: 1995-2000 , Census 2000 Brief at http://www.census.gov/prod/2003pubs/c2kbr-28.pdf……….32 Page 7 INTERESTS OF AMICI FairVote - The Center for Voting and Democracy (“FairVote”) is a national non-partisan, non-profit corporation incorporated in the District of Columbia for educational purposes. FairVote researches and distributes information on the impact of electoral structures on voter participation and representation and advocates for fairer electoral systems that would benefit the public interest. FairVote has been active in encouraging government officials, judges and the public to explore alternatives to current approaches to plurality elections and winner-take-all electoral systems, and has over the years done extensive work in attempting to implement electoral reforms in Washington state, including instant runoff voting. Visit www.fairvote.org Jack Bennetto, PhD, is a Seattle resident, Washington state voter and the Electoral Coordinator for the Green Party of Seattle. He is a founding member of FairVote - The Center for Voting and Democracy. John R. Burbank is a Washington state voter and the Executive Director of The Economic Opportunity Institute (“EOI”), a Seattle-based nonpartisan, nonprofit, public policy institute, started in 1998, to define the policy debate on the issue of economic security. EOI focuses on concerns shared by Page 8 middle-class families and low-income workers. The issue of voting touches fundamentally upon these goals. He was political director of AFL-CIO COPE in the early 1990s. George K. Cheung is a Washington state voter and an activist with ROAR (Raising Our Asian Pacific American Representation). He is the founder of Equal Rights Washington, a statewide LGBT advocacy organization. Jerome R. Cronk is a Seattle attorney who has handled election law cases. He was profiled in a Seattle Post-Intelligencer article last year about his efforts with Instant Runoff Voting Washington, a 2004 effort to place a ranked voting ballot measure on the Washington state ballot. His clients include the Green Party of Washington. Todd Donovan is a Professor of Political Science who studies elections and representation. He is a registered voter in Washington, was a candidate for (non-partisan) elected office in Nov. 2004, and was elected and served as the alternate Presidential Elector from Washington's 2nd Congressional District in 2004. Page 9 Gerrick W. Dudley is a registered voter in Washington state and he wants his vote to be “counted for the person I'd like to see in office.” Toward that end, he is in favor of paper trails, IRV, proportional voting, etc. Robert Kuller is a registered voter from Bellingham, Washington, Keller earned his Ph.D. from the University of Chicago, and after teaching at a half-dozen institutions, retired in 1994 from Fairhaven College, Western Washington University. Dr. Robert Korten is a Washington voter who holds MBA and Ph.D. degrees from the Stanford Business School and has thirty years experience as a development worker in Asia, Africa, and Latin America. He has authored numerous