City & County of San Francisco
Elections Commission

COMMISSION ANNUAL REPORT

March 20, 2003 – May 19, 2004

Pursuant to the Bylaws of the San Francisco Elections Commission, Article XI, I herewith submit the Commission’s Annual Report.

Alix A. Rosenthal
President

San Francisco Elections Commission
#1 Dr. Carlton B. Goodlett Place, Room 48
San Francisco, CA  94102
web site: www.sfgov.org/electionscommission
email at: elections.commission@sfgov.org.
phone: (415) 554-4305
fax: (415) 554-7457

 

 

I.           Introduction

The Commission consists of seven individuals, each appointed by a separate elected official or body.   The Charter Amendment creating the Commission provided for staggered terms, and most of the Commissioners seated during the period of March 20, 2003 through May 19, 2004 were still on their initial term.  Following is a brief history of those Commissioners who served during this time period, in order of their appointment dates:

• Thomas Schulz was a founding member of the Commission, appointed by the Board of Supervisors.  His initial term was two years, to run from January 1, 2002 to January 1, 2004.  He served from January 22, 2002 to January 7, 2004.  He served as President of the Commission from January 22, 2002 through April 22, 2002.  He was replaced by Commissioner Gerard Gleason.
• Richard Shadoian is a founding member of the Commission, appointed by the Board of Education.  His initial term was one year, to run from January 1, 2002 to January 1, 2003.  He has served from January 22, 2002 to the present, as a holdover appointment.  He served as Vice President of the Commission from January 22, 2002 through April 22, 2002.
• Bob Kenealey is a founding member of the Commission, appointed by then City Attorney Louise Renne.  His initial term is three years, to run from January 1, 2002 to  January 1, 2005.  He has served from January 22, 2002 to the present. 
• Alix Rosenthal is a founding member of the Commission, appointed by then Public Defender Kimiko Burton.  Her initial term is four years, to run from January 1, 2002 to  January 1, 2006.  She has served from January 22, 2002 to the present.  She served as Vice President of the Commission from April 22, 2002 through May 6, 2003, and as President during the following year.
• Michael Mendelson is a founding member of the Commission, appointed by then District Attorney Terence Hallinan.  His initial term was five years, to run from January 1, 2002 to  January 1, 2007.  He has served from January 22, 2002 to the present.  He served as President of the Commission from April 22, 2002 through May 6, 2003, and as Vice President during the following year.
• Brenda Stowers was a founding member of the Commission, appointed by Treasurer Susan Leal.  Her initial term was two years, to run from January 1, 2002 to  January 1, 2004.  She served from January 22, 2002 to February 3, 2004.  She was replaced by Commissioner Tony Winnicker.
• Arnold Townsend was appointed by Mayor Willie L. Brown, Jr. to a five-year term ending on January 1, 2008.  He has served from May 7, 2003 to the present. 
• Tony Winnicker was appointed by Treasurer Susan Leal to a five-year term ending on January 1, 2009.  He has served from February 4, 2004 to the present.
• Gerard Gleason was appointed by the Board of Supervisors to a five-year term ending on January 1, 2009.  He has served from March 7, 2004 to the present.

 

II.            Significant Commission Events

       A.      Ranked Choice Voting

             On March 5, 2002, the San Francisco voters passed Proposition A, a Charter Amendment requiring the Department of Elections to implement Ranked Choice Voting, a new method by which San Francisco voters choose its Mayor, Board of Supervisors, Treasurer, Assessor-Recorder, Public Defender, District Attorney, Sheriff, and City Attorney.  Ranked Choice Voting, or RCV (also called “Instant Runoff Voting” or “IRV”) is an innovative election method that eliminates runoff elections, and asks the voter to rank his or her choices instead of selecting one candidate.  When the polls close, the voters’ first choices are tabulated.  If no one candidate garners a majority vote, then the Department of Elections eliminates the candidate who received the smallest number of votes, and tabulates the second choice votes of those who had originally selected that candidate. Those second choice votes are allocated among the remaining candidates.  This process continues until one candidate has a majority, and that candidate is declared the winner.

             During the 2003-2004 Commission year, the Commission and the Department faced serious challenges in implementing the new law.  No jurisdiction in California had ever used RCV before, and the Charter required the Department to implement it in a relatively short timeframe.  As the deadline for implementation neared, it became clear that the City’s election equipment vendor, ES&S, was unable to get the appropriate modifications completed in time to be approved by the Secretary of State’s office.  The alternative, a manual count of ballots, was also not workable.  As the deadline approached, the Department’s ability to implement RCV generated considerable public interest, and the Commission found itself with less than palatable options, which included compelling the new Provisional Director to (1) use an uncertified mechanized system in violation of state law; (2) use a manual system that would likely take hundreds of ballot counters and several months to know the election results, and which presented serious security concerns; or (3) violate the Charter mandated deadline, and hold a traditional election with a runoff.  To boot, the new Provisional Director of the Department had not yet operated a single election season under his watch, an unprecedented special election was added to the Department’s mounting list of tasks for October, and the Department had not held a problem-free election for several years.  The controversy resulted in litigation and public criticism for all involved. 

             Following is a chronology of events related to Ranked Choice Voting from May 2003 through May 2004.

             1.            May 2003

a.             Contract Negotiations with ES&S and the Certification Process

             Before San Francisco could use the new ES&S system for Ranked Choice Voting, the system needed to be certified by the Voting Systems & Procedures Panel (“VSP”) of the Secretary of State’s Office.  It was agreed that certification of a new voting system was the responsibility of the vendor, though the Department agreed to help ES&S with this endeavor.  Under usual circumstances when a new voting system is developed, the vendor applies for certification, and then offers its new system to municipalities.  Here, however, the reverse occurred: the municipality required a new system be developed, and its vendor needed to apply for certification within a specific timeframe.  The certification process in California usually takes many months to complete, since the State usually requires both state and federal testing of the new system, the generation of reports by those testing authorities, a thorough staff-level analysis of those reports in the Secretary of State’s Office, a thirty-days notice requirement for a meeting of the VSP in order to consider the new system for certification.    

                         At the time of the Commission meeting on May 7, 2003, the Department and ES&S, the City’s election equipment vendor, were continuing to negotiate the changes to their contract that applied to RCV modifications to the ES&S voting equipment.    At that meeting, John Arntz reminded the Commission that ES&S had many incentives to develop the RCV system concurrently with the contract negotiations.  Furthermore, the modifications were not yet funded by the Board, and City practice prevented Arntz from signing a contract until there are funds to encumber.  The proposed amendments to the ES&S agreement provided no deadline for when ES&S must have a certified system in place, but they did include incentives and penalties to encourage ES&S to accomplish as much as possible by June 30, 2003.  Arntz had stated that June 30 was the date by which the Department needed a system in place for use in November, to allow for time to conduct internal testing of the new system, print and mail ballots, train poll workers and staff, and educate voters about how the system would work.

                         Later in May, it became clear to the Commission that Arntz’s June 30 deadline for ES&S to have the modifications to the Eagle system certified was no longer viable.  ES&S had asked Arntz to move the deadline to August 1, because it was not yet ready to submit its modifications to the Secretary of State.

                         b.            The Department Develops a Backup Plan

                         Since early 2003, the Department had been working on a manual count system for RCV, in case the vendor was unable to get its mechanized system certified in time for implementation, or in case the City was unable to fund the modifications to the ES&S contract.  Before May 7, the Department had sent its application for certification to the Secretary of State, and Arntz expected that the Secretary’s office would be scheduling a testing date soon.  As of that date, the Department had received no comments from the Secretary of State’s Office as to whether this plan would be certified.

                         c.            Tensions Begin to Run High

                         Before the Commission meeting on May 21, neither the Department’s manual system, nor ES&S’s modifications to the Eagle system had neared certification by the Secretary of State’s office.  Arntz reminded Commissioners at this meeting that ballots needed to be printed very soon, as absentee ballots needed to be mailed to overseas voters in August for the November election.  Arntz had concerns about running the election smoothly at all, even without RCV implemented, and he was becoming increasingly concerned that the large numbers of staff dedicated to RCV needed to be redirected toward the usual election-related tasks such as hiring and training poll workers, locating polling places, designing an alternate non-RCV ballot, providing campaign services, and purging the voter rolls.  He recognized that he had no choice but to make every effort to implement RCV for November, but the Department was not able to live in uncertainty until the last minute.  At some point, the Department needed to print and mail ballots, and the vendor needed to know whether it would be making the physical modifications for RCV to all of its machines.

                         At the May 21 meeting, tensions began to run high among the Department, ES&S, the Commission, proponents of RCV, and interested members of the public.  It was becoming clear that Arntz and certain members of the Commission were unsure of the vendor’s ability to get a system certified on time, and there were many doubts about the Department’s proposed manual system.  The Commission was alerted that the change in the law that implemented RCV also eliminated the provisions for holding a runoff election.  To hold an election without using RCV would be in direct contradiction to the new provisions of the Charter.

                         d.            Educating Voters About RCV

                         In May, Director Arntz worked closely with Supervisor Sandoval’s office to put together an outreach plan.  The Department’s plan was completed by May 21, and by the June 4 meeting of the Commission, the Finance Committee of the Board of Supervisors funded the Department’s outreach program for $526,000 – considerably less than the $1.4 million requested. 

             2.             June 2004

a.             Contract Negotiations with ES&S and Certification of the Eagle System

                         At the Commission meeting on June 4, Director Arntz reported that the contract with ES&S was completed.  At that time, ES&S claimed that it had submitted a crucial part of its application – the voting procedures - to the Secretary of State’s Office; however, this development indicated that ES&S was not able to obtain certification by June 30, and not likely to obtain certification by the end of July.  Voting procedures must be submitted 45 days before the entire application is submitted to the Secretary of State.  And once the full application was submitted, the Secretary’s staff needed time to analyze the application and the reports of the testing authorities, and give thirty days notice for a VSP meeting.  It was becoming clear that this series of events simply could not be completed within two months. 

                         At the meeting on June 18, Joe Taggard of ES&S reported to the Commission that it was continuing to work on the modifications to the Eagle Optech system to implement RCV for November 2003.  Contradicting the report on June 4 that only the voting procedures had been submitted, Taggard stated that his company had submitted the entire application for certification to the Secretary of State’s office on June 2.   He stated that the working production unit would be ready for testing on June 26, 2003, and he offered ES&S’s assistance with voter outreach.

                         On June 17, the Board of Supervisors passed two ordinances to fund the ES&S contract modification amount of $1.6 million.   At the meeting on June 18, the Director reiterated that his internal deadline for having a certified RCV system was July 1, 2003.  After that date, uncertainty about the voting method to be used would make preparations for the November election very difficult, particularly in light of an impending recall election.

                         b.            Department’s Backup Plan for a Manual Count

                         Before the Commission meeting on June 18,   representatives of the Secretary of State visited the Department to observe the demonstration for hand counting ballots.  The demonstration began in Brooks Hall and showed the media and the Secretary of State’s representatives the difficult conditions under which Department staff must work.  The Department received no feedback form the Secretary of State’s Office at that time.

                         c.            Outreach and Voter Education

                         On June 17, 2003, the Board of Supervisors funded the Department’s RCV voter education in the amount of $526,000.  The Board’s Finance Committee also placed $250,000 on reserve, for which the Department must submit a plan for outreach before the funds are released.  On June 18, Rachel Gosiengfiao, Outreach Manager for the Department of Elections, reported that the Department would be working with community organizations to educate voters about RCV.  One organization per district would be selected to receive a grant from the Department.

             3.             July 2003

                         a.                 ES&S Application to Secretary of State

                         On July 1, the Director signed the contract with ES&S and the City Attorney approved it as to form, however, the contract was found to be not valid because ES&S had failed to pay its business taxes.  The Office of Contract Administration ultimately approved the agreement on July 16, after the taxes were paid.

                         At the meeting on July 2, Director Arntz informed the Commission that Joe Taggard’s report at the last meeting was incorrect.  Arntz learned from the Secretary of State’s Office that ES&S had submitted its procedures, but not its hardware or software, both of which had to be tested by state and federal authorities.  Despite Taggard’s assurances, ES&S’s application was incomplete.  Arntz reported that the Secretary of State’s office would not review the application until it was filed in its entirety.

                         At the Commission’s next regular meeting, Mr.   Taggard attempted to explain his prior report, stating that he thought ES&S had met most of the requirements for certification on July 1 because its software had been tested by federal authorities by that date, though the federal testing lab had not submitted its report to the Secretary of State.  Since that time, the Secretary of State determined that both ES&S’s software and hardware had to be tested by state and federal authorities, thus making ES&S’s application much more difficult to complete.  He reported that the federal testing of the hardware system would begin as soon as July 18, and the state testing would begin in early August.  The rest of the application, he said, had been completely submitted.  Commissioner Townsend expressed his disappointment that Taggard’s prior presentation was inaccurate, and remarked that this is unacceptable behavior from a City vendor.

            Even though Director Arntz had repeatedly stated that the Department’s deadline for obtaining certification was July 1, he reluctantly moved the deadline to August 1 in order to give ES&S as much time as possible without jeopardizing the Department’s ability to complete necessary testing, training and outreach.  At the meeting on July 16, Arntz explained his discomfort with moving the deadline.  Planning for an election, he stated, is a complicated, time-consuming process, and the Department has in effect been planning for four elections: (1) a ranked choice voting system using the Optech Eagle machines with ES&S software, (2) a ranked choice voting system using the Department’s partial hand count, (3) a possible run off election in the case that it is not possible to implement ranked choice voting, and (4) the presidential primary election in March. 

b.             Legal Issues Presented if the RCV Deadline Is Not Met

                         In July, it was becoming clear to Commissioners that the Department was facing serious obstacles to implementing RCV for the November election.   The Commission was receiving conflicting reports about ES&S’s application and the testing of its modified Eagle system, it was unclear whether the Department’s manual count plan met the Secretary of State’s requirements, and the Department was becoming anxious about the shrinking amount of time available to educate voters about the new voting system.  In addition, it was becoming clear that a recall election would take place in the fall of 2003, and the Department would need to plan for an additional election before November. 

                        At the Commission meeting on July 2, President Alix Rosenthal notedthat despite the Department's best efforts, some of the critical steps to implementing RCV remain beyond the City's control.  Members of the public, and members of the Board of Supervisors had begun to ask what will happen if, for example, the Secretary of State Does not certify either the ES&S system or the Department's hand count plan.  Commissioner Rosenthal remarked at the meeting that the reason the Elections Commission was created was to protect the franchise, to regain San Francisco’s confidence in the administration of its elections, and to make sure the elections are conducted in a way that is fair, efficient and cost-effective.  It is also the Commission’s responsibility to ensure that when the voters change the way that elections operate, that the will of the voters is implemented in a fair and efficient way.  The Commission, she said, is therefore obligated to insure that the Department does everything in its power to implement ranked choice voting. 

                         President Rosenthal asked her fellow Commissioners to start considering the legal questions arising from the possibility that RCV would not be implemented on time.  She formally asked the following questions of the City Attorney’s office on July 2:

(1)              May the City use a ranked-choice voting system if that system has not been certified for use by the California Secretary of State?

(2)              If the City Does not have a certified and tested ranked-choice voting system in time for use in the November 2003 election, may the City use a ranked-choice ballot and hand-count those ballots? 

(3)              If the City Does not have a certified and tested ranked-choice voting system in time for use in the November 2003 election, may the City conduct the election without using ranked-choice voting?

(4)              May the City undertake contingency plans now for the November 2003 election that do not involve ranked-choice voting? 

(5)               If the City is unable to use ranked-choice voting in November 2003, and if no candidate receives a majority of the votes cast, would the candidate who receives the highest number of votes be elected, or would the two candidates receiving the most votes qualify for a separate run-off election to be held at a later date? 

            At the meeting on July 16, Deputy City Attorney Julie Moll presented the following formal advice from the City Attorney’s Office as to the legal questions:

(1)San Francisco cannot use a voting system unless the system is approved in advance by the Secretary of State.
(2)If there is no approved ranked choice system available in time for use in November 2003, the City Attorney Does not believe that the Charter would permit the hand-counting of ballots. But even if the Charter Does permit a hand-count, the Secretary of State would still have to approve the hand-count procedures.
(3)If there is no approved system available in time for use in the upcoming election, the City would have to use its conventional voting system and conventional ballot.
(4)The City may develop contingency plans now to deal with this possibility.
(5)If instant runoff voting cannot be implemented in November 2003, the City would hold a separate runoff election in December if necessary to ensure that the winning candidate received at least a majority of the votes cast.

       President Rosenthal stated that it was time to begin a public dialogue about the possibility that Department is unable to implement RCV by November.  She reiterated that the Commission and the Department were fully committed to implementing Ranked Choice Voting.  Until and unless it was absolutely impossible to do so, she said, the Commission must proceed under the assumption that RCV would be implemented.  President Rosenthal noted that in August, the Department had to start printing absentee ballots, educating voters and training poll workers.  Considering the timing, it would be irresponsible to not plan for every possible scenario.  Redundancy is inherent to how the Department plans for any election.  She asked her fellow Commissioners to consider the following items, which would appear on the next Commission agenda:

(1)             Determine the deadline by which certification of a ranked choice voting system must take place in order for the Department of Elections to conduct the necessary planning, training and outreach to conduct a fair and orderly election on November 4, 2003, using the new voting system.

(2)      Determine whether, if no ranked choice voting system is certified by the deadline above, the Department of Elections may use a system not certified by the Secretary of State.

(3)             Determine whether, if no ranked choice voting system is certified by the deadline above, the Department of Elections may use a pure hand count system. 

(4)             Determine whether to authorize the Director to prepare for a conventional election for November 2003, and a possible runoff election in December in the event that no candidate receives a majority of votes. 

Rosenthal noted that the City Attorney’s office had addressed the second and third questions in the opinion delivered by Deputy City Attorney Julie Moll.   She also commented that as to the fourth question, it was not necessary for the Commission to authorize the Director to make contingency plans.  However, it was important for the Commission to consider these issues, so as to allow for a public dialogue, and in case the Commission wanted to question the City Attorney’s advice. 

                         c.            Department’s Backup Plan for a Manual Count           

                        By July 2, the Secretary of State’s Office had scheduled a meeting of its Voting Systems and Procedure Panel (“VSP”) for July 28, 2003, to discuss and review the manual system proposed by the Department.  The VSP could decide to certify the manual count system at that meeting.  Arntz predicted that the VSP may have a problem with the amount of time a manual count would take to complete.  California Elections Code requires the Department to complete any hand count in 28 days.  While the Department’s hand count plan was designed with meeting the 28 day deadline, Arntz could not guarantee that it would take place in that amount of time because such a count is new to the Department and it would be a huge undertaking. 

                         Before the July 2 Commission meeting, Board of Supervisors President Matt Gonzalez and Steven Hill from the Center for Voting & Democracy requested that the Department change its manual count plan to allow a London company to assist with hand counting the ballots.  Soon thereafter, the company had sent a letter to Director Arntz offering to perform the City’s hand count for this November’s election for $30,000 with no explanation of this amount, or further details.  Arntz responded with a request for further information.

                         d.            Outreach and Voter Education

                         On July 2, the Department formally presented its plan for public education and outreach concerning RCV, which included awarding grants of $10,000 each to one primary organization in each of the eleven supervisorial districts.  The primary organizations would be responsible for reaching out to all voters in the district including networking with neighborhood groups and schools to educate voters, and potential voters, about RCV.  Grants would also be awarded to secondary organizations who would partner with the primary groups to ensure that special needs in each community are met.  Special attention areas identified by the Department included low voter turnout areas, seniors and disabled persons, and limited English speakers (Chinese, Spanish, Russian, Tagalog, Vietnamese).  Grants would only be made to nonprofit-nonpartisan organizations with 501(c)(3) status, with at least three years experience in community organizing or development, and a proven track record of fostering relationships with other community organizations and constituencies in the community.  Grantees would also be required to commit to recruit a minimum of 50 Chinese, Russian, Spanish, Tagalog and Vietnamese bilingual poll workers (where applicable) for the upcoming November election. 

                         a.            Department’s Backup Plan for a Manual Count

                         At the   July 28 meeting of the Secretary of State’s Voting Systems and Procedures Panel, the VSP commended the Department on its application for a manual counting procedure for RCV.  However, it decided not to certify the system due to questions with the its ability to manage a required manual 1% tally of cards after the election, and the system’s failure to adequately address the eventuality of a recount or a tie.  The VSP suggested that the Department’s ballot design, which was the same for the manual count and for the ES&S system, would be confusing to voters.  It also stated that state law might need to change before any RCV system could be certified.

                         b.            Certification of ES&S System

                         Before the August 6 Commission meeting, President Rosenthal was informed by John Mott-Smith of the Secretary of State’s office that the ES&S hardware and software have been reviewed by the federal testing authority, but that neither report had been completed.  Without those reports, the Secretary of State could not evaluate the system for certification.  At the meeting itself, however, Joe Taggard of ES&S stated that the hardware testing report had been received by the Secretary of State and that he could not comment on the software testing report.  At that time, Mr. Taggard admitted that he did not know whether there was a reasonable probability that the RCV system would be up and running in time for the November election. 

                         c.            Decision to Postpone Implementation of RCV

                         In light of Mr. Taggard’s report, and in light of all of the obstacles to having a certified system in place on time for the November election, Director Arntz told the Commission that he was not confident in either system proposed to implement RCV, that the ES&S system had not been adequately tested, and that there was not enough time to educate the voters about RCV.  He said he had made the decision, that under these circumstances, the Department would not use RCV in November.  After Arntz’ comments, the Commission entertained several hours of discussion and public input.  President Rosenthal, Director Arntz and Deputy City Attorney Julie Moll were disparaged for their respective roles in the Department’s decision not to implement RCV for November.  RCV activists alleged that President Rosenthal was personally opposed to implementing RCV.  

                         Ultimately, the Commission approved a statement reaffirming its commitment to the implementation of Ranked Choice Voting.  Commissioner Shadoian moved to amend the statement in order to compel the Department to implement RCV by November 2003; it failed.  The Commission asked Deputy City Attorney Julie Moll to determine what changes needed to be made to state law in order to implement RCV as quickly as possible.  

                         d.             Lawsuit to Force Implementation of RCV

                         At the Commission meeting on August 20, Deputy City Attorney Julie Moll reported that a lawsuit had been filed asking the court to compel the Department to implement RCV for November 2003.  The suit called for a fully manual hand count for the November election, without certification by the Secretary of State.  The Court held a lengthy hearing, but denied the plaintiff’s requests. The Judge reprimanded the Department for failing to implement RCV on time, but stated that the need for an orderly, fair and transparent election was paramount.  

                         e.            Possible Removal of Commission President

                         At the Commission meeting on July 2, President Rosenthal expressed her concern that the Commission was becoming divided politically, and that Commissioners’ appointing officers were pressuring their appointees to influence the Department on RCV.  She asked her fellow Commissioners to set aside political influences in order to have a rational discussion about what it will take to implement RCV, and protect the will of the voters, while protecting the integrity of the November election.  The divisions within the Commission peaked at the time that the Commission voted to postpone the implementation of RCV.  After the Commission meeting on August 6, Commissioners Mendelson and Stowers asked President Rosenthal to put her own removal as President on the upcoming agenda.  She agreed to do so. 

                         At the August 20 meeting, the Commission considered the removal of its President, with Vice President Michael Mendelson presiding over the item.  Commissioner Stowers argued for removing the Commission President because she made comments about RCV to political organizations such as the Young Democrats; because the President failed to treat members of the public with respect; and that she conveyed arrogance in the way she spoke about the Commission, and in the way she set the Commission agendas.

                         Commissioner Townsend opposed the removal of President Rosenthal because she had not committed malfeasance in office. He argued that the reasons for wanting to remove Rosenthal were political in nature, that Commissioner Stowers’ complaints were not reasons for removal and that the Commission President only made disrespectful comments to the public after several hours into a five-hour long meeting after the President had been under personal attack. 

                         Rosenthal reiterated her belief that the Commission should protect the Director and the Department from the intense pressures of City politics.  She said that her removal would damage the Commission because it would set a bad precedent and that the credibility of the Commission was in jeopardy.  The motion to remove the President failed.

             5.            September 2003

a.             Possible Use of Touchscreen Equipment

On September 9, the  President of the Board of Supervisors introduced a resolution at the Board in support of compelling the Department to use touchscreen voting equipment to implement RCV in 2004.   In response, the Department sent a memo to the Board of Supervisors, the Commission and the Mayor explaining its current plan for implementing RCV for the November 2004 election.  The Director suggested going forth with a Request for Proposal (RFP) for vendors and technology that could be useful in implementing RCV, including touchscreen systems.  He noted that changes in state law may need to take place before implementation of RCV, and that storage space for new equipment was a concern.

b.             Certification of ES&S System

                         As of the Commission meeting on September 3, the status of ES&S’s application had not changed.  The Secretary of State’s Office continued to wait for the report from the federal testing authority on the software modifications implementing RCV.  Steven Hill of the Center for Voting & Democracy reported to the Commission that the certification for the software may be completed in October, but he had been receiving conflicting responses to his questions from the Secretary of State and from ES&S.  Mr. Hill said that he was concerned that if the Department goes to touchscreen voting for next year, it could complicate the start of RCV.

c.             Possible Changes in State Law to Implement RCV

Deputy City Attorney Julia Moll reported to the Commission on September 3 that her office planned to work with the Secretary of State’s Office to determine those changes in state law that might need to happen in order to implement RCV.   The City Attorney’s office was looking at the test report from the Secretary of State and the transcript of the VSP panel.  Ms. Moll said there were two areas of State law to consider – one governing the discretionary recount and one governing the automatic recount.  She told the Commission that any changes to state law would not go into effect until 2005.

             6.            October 2003

a.            Possible Use of Touchscreen Equipment

As a result of discussions with the President of the Board of Supervisors, the   Department issued a request for proposal on October 14, asking vendors to provide bids for direct recording, electronic systems, touchscreen systems and/or optical scan systems to implement RCV.   Since the Department’s manual count system had not yet been certified, and the application of ES&S to certify the Optech Eagle was incomplete, the Director thought that the RFP would create more options for the City to implement RCV.  He also suggested that an RFP by the Department might provide incentives for vendors to get systems certified by the Secretary of State.  

Director Arntz hoped that an RFP would also complement the Department’s outreach program, and educate the public about how RCV will work.   He planned for the highest scoring three vendors to participate in a mock election that would take place during the voting of the March Election.  Citizens who come to vote in City Hall will be encouraged to go to the South Light Court and try out the new RCV systems.  The voters would have an opportunity to evaluate these systems and provide this information to the selection committee.

• Department’s Backup Plan for a Manual Count

At the October meeting, the Director reported that the Department would continue to pursue certification of the Department’s partial hand count system, and also consider putting together a fully manual hand count proposal.   The Department planned to put the options before the public, the Board of Supervisors and the Mayor’s Office to receive maximum input as to this decision. 

7.             November 2003

a.            Possible Use of Touchscreen Equipment

In November 2003, the Secretary of State announced that his office would be requiring a paper trail for any touchscreen system that was up for certification, thus making it more difficult for a vendor to obtain certification for a system combining touchscreens with a new voting method such as RCV.

b.             Meeting with Secretary of State

President Rosenthal and Director Arntz met with the Secretary of State on November 19, with several high-level members of his staff to discuss how the Commission and Department could expedite certifying RCV systems.   At the Commission meeting that evening, President Rosenthal reported to the Commission that everyone in the meeting was optimistic that an RCV system could be certified by November 2004.  The necessary steps included: (1) development of Federal testing protocols; (2) resolution of the legal issues identified by the VSP; (3) changing the ballot design; (4) and getting the system through the VSP process.

8.             January 2004

a.             Commission’s Commitment to Implementing RCV

At its meeting on January 7, the Commission passed Resolution 01-02-04-1 stating that even though the Department and its vendor were unable to implement Ranked Choice Voting for the November 2003 municipal election as required by law, it is the intention of the Elections Commission that Ranked Choice Voting will be implemented for the November 2004 election.   The resolution affirmed that (1) the Commission would do everything possible to assist the Department in implementing RCV by November 2004; (2) the Commission would encourage the Department to work with the vendor to complete its application before the Secretary of State’s office and to facilitate holding a hearing before the Voting Systems and Procedures Panel as soon as possible; (3) the Commission would encourage the Department to regularly request updates from both the Secretary of State and the vendor regarding the progress of the vendor’s application and any estimates as to when its constituent parts will be complete; and (4) the Commission would encourage the Department to initiate a program to educate voters about Ranked Choice Voting.

b.            Possible Use of Touchscreen Equipment

Due to mounting concerns about the security of touchscreen voting systems, and an underwhelming response from vendors to its RFP, Director Arntz decided to use the eagle optical scan system to implement RCV for the November 2004 election, thereby ending the RFP process for a touchscreen system.     

             9.            February 2004

ES&S was scheduled to have their RCV hardware tested during the first week of February, but it was postponed by the vendor until March 9-11.  Both the Secretary of State’s Office and ES&S assured Director Arntz at that time that the testing would be completed soon.  John Mott-Smith of the Secretary of State’s Office told President Rosenthal that his office had provided ES&S with a list of tasks that must be completed before federal testing could commence, and that the cancellation occurred because the tasks had not been completed.  So as to expedite the certification, the Secretary of State arranged for the state and federal testing to happen concurrently, and planned to hold a VSP meeting very soon thereafter. 

             10.            March 2004

The Director reported that the testing of the ES&S Ranked Choice Voting system began on March 17, and was planned to be completed by March 19.   The Voting Procedures Panel was set to meet on March 30^th. 

             11.            April 2004

a.             Certification of ES&S System

On April 21, Director Arntz declared that the ES&S system was nearing certification.  The VSP voted to certify the system, so long as a few requirements were met by ES&S, including receipt of the report by the federal authority on the “firmware,” and the creation of an “audit trail” allowing for manual voting such as voting for write-in candidates.  In addition, the subject of tiebreakers between losing candidates must be resolved by September 1, 2004.  Arntz reminded the Commission that this conditional certification is for one time use only.   The Secretary of State’s Office was monitoring ES&S’s progress.

Director Arntz raised no doubts or serious concerns that the certification of the ES&S system would be accomplished in time for the November election. “It would be remarkable,” he said, “if the system wasn’t in place for this year’s City elections,” though he warned that it was not a “done deal.”   Arntz reported that the Department was continuing to develop a backup process in any event.

                         b.            Outreach and Voter Education

Director Arntz reported that the Department had put together new flyers regarding RCV, and made them available at the Commission meeting on April 21.   He said that these were the first step in the outreach for RCV and that he looked forward to feedback from the Commission and the public. 

Director Arntz reminded the Commission that a main component of the RCV outreach plan was assistance from community groups.  The grants applications were being put together to assure the information meets with City policy and should be ready in three weeks.  The Department planned a citywide mailing announcing RCV and the Voters Information Pamphlet would have information about RCV as well.  He added that the training of poll workers would be another important part of RCV outreach.   Arntz said that Department staff would be given a list of “frequently asked questions” and will be trained to answer these questions in a consistent manner. 

In response to questions from Commissioners Townsend, Winnicker, and Gleason, Director Arntz stated that the Department would be seeking assistance from groups who would not otherwise qualify for grants.    He stated that he understood that it was important to get the message out as soon as possible, however, it was also important that the funds not run out before that message is delivered and understood.  He added that the message of the outreach needs to be defined before people are sent out to do the outreach.  Arntz looked forward to receiving feedback from the Commission and the public during the outreach process.

B.      Creating a Stable Elections Department

             In the years before the Elections Commission was created, the Department saw a high level of instability in the Department, along with low morale and poor performance by most standards.  During the Commission’s second year, the Department completely turned around – producing four elections without major incident, including an unprecedented Recall Election in October 2003 which overlapped in time with the City’s Municipal Election in November.  By May 2004, morale in the Department was high, and the Department was receiving high marks from all over the state for its accomplishments.  Following is an account of some of the challenges and the advances that led to the Department’s success.

• Appointment of Permanent Director

John Arntz served as Provisional Director at the time of the May 7, 2003, Commission meeting, though the Commission continued its search for a permanent director.   After several steps of the application process, the Department of Human Resources had identified three candidates whom the Commission would interview as possible selections for the job of Director of the Department.  Commissioners submitted questions they would like to ask of the candidates during the interview, and DHR was working on the formatting of those questions.  The Commission held a closed session to interview the three candidates for the position of Director of the Department of Elections at its regular meeting on May 21.  After interviewing three candidates selected by DHR, the Commission appointed John Arntz to a five-year term as Director of Elections, subject to Civil Service rules.   

2.             Early Voting Challenge

Even though he had no elections under his belt as permanent director, Arntz faced several big challenges early on in his tenure, including implementing Ranked Choice Voting, low morale among staff, and continuing budget problems.   Adding to these challenges, in May 2004, the President of the Board of Supervisors  proposed that the Department set up three early voting stations in each of the City’s eleven districts (33 stations), to open ten days before the election.  At the Commission meeting on May 21, Director Arntz explained to the Commission that this would be a major undertaking, particularly in light of the challenges ahead of the Department in the coming months to operate a problem free election, which it had not done in several years.  He cited the effort in Los Angeles, where early voting was tried in nine locations, and took four years of work to achieve that goal.  L.A. County would attempt to get 12 additional sites in place over the next four years. Nevertheless, the Department was working on providing a framework for early voting sites and a timetable for the Board of Supervisors to consider. 

            3.            Continuing Budget Problems

The 2003-04 budget year was very difficult for the City.   The Mayor’s Office had asked each department to cut 10% of its budget, and the Mayor was working on transitioning laid off city workers into other departments. At the Commission meeting on May 21, Director Artnz reported that this presents a serious problem for the Department because elections staff with years of experience and institutional memory could be replaced with laid off employees from other departments.

At the June 4 meeting, Arntz announced that the Department continued to pay bills from when Tammy Haygood was Director, some of which obligations the Department was unaware of until recently.  Despite this, the Department was able to meet its mandated goal of cutting ten percent from last year’s budget.  In June 2004, all Department staff were taking days off without pay, so as to avoid layoffs.  For the first time since 1998, the Department did not need to request a supplemental appropriation after the election season. 

In September 2003, the Director reported that the Department’s current spending level was several hundred thousand dollars below the previous year’s spending.  This was accomplished in spite of preparations for RCV and the Recall Election, and due in part to the fact that the Department had no outstanding debt. 

4.             October 2003 Recall Election             By July 2, 2003, the Department started receiving signatures to place a recall of Governor Gray Davis on a future ballot.  By the July 16 Commission meeting, it had become clear that a recall election would take place in the fall of 2003, and in August, the Recall Election was scheduled for October 7.  As of August 6, more than 500 people had requested nomination papers as candidates for the Recall.  The Department faced the challenge of preparing a voters guide and sample ballot for the Recall Election and the November Election simultaneously.   Voting for both elections would overlap, because early voting for the November Election would begin on October 6. San Francisco was the only county in California to have a full county-wide election after the Recall.  The Department decided not to consolidate precincts for the Recall Election as other counties decided to do.  In August, Mayor Willie Brown called a meeting with John Arntz, the Commission President, Board President Matt Gonzalez, Supervisor Aaron Peskin, the City Controller, the City Attorney, and members of the Mayor’s staff to determine how the City could help the Department put the Recall Election together in the short timeframe that it was required to do so. 

             At the August 20 Commission meeting, the Director reported that staffing was being hired, absentee ballot assembly was occurring, the space at 240 Van Ness was being manned to receive the precinct cards, and the draft election plan would be ready for the next Commission meeting.  Staff was preparing for the election and Arntz told commission that he needed to use the Commission office for the storage of ballots.  It was doubtful that the state would reimburse the Department for the recall election, so Arntz prepared a supplemental budget request for the election cost, which was predicted to be over $1 million.

             At the September 3 Commission meeting, Director Arntz reported that the Department had two ballot types for the Recall Election, one for each Assembly District, with different orders of the candidates names.  During this time period, the Department was receiving an extraordinary number of voter registration cards – about 1000 in the first few days of September.  September 8 was the first day to mail absentee ballots and for early voting in City Hall.

             In September, the Ninth Circuit Court of Appeals considered whether to postpone the Recall Election because several counties would be forced to use punch card ballots, which had become illegal since the last election.  Though the court indicated that it might postpone the election, the Department proceeded with its preparations for the October 7^th special election, and the Secretary of State had made it clear that all counties were to do so.  From September 3-17, ten thousand registration cards were turned in to the Department.  Before the September 17 Commission meeting, 17,000 absentee ballots had been received, even though they had only been sent on September 8.  At that time, the Department had spent or otherwise committed $1.5 million on the Recall Election, and approximately $2 million more was expected to be spent to complete the election. 

The Recall Election took place on October 8 with few complications in San Francisco.   The Department was under close scrutiny for this election and to have accomplished such a good election was no small task.  San Francisco had a 57% turnout for this election, and 99% of the results were in by 9:30 pm.  One precinct’s results weren’t available until midnight because the location was accidentally locked before the voting information and ballots could be retrieved.  Eight thousand people voted at City Hall, many of whom voted for both the Recall and November Elections simultaneously on October 7 and 8.  All but three polling places were open at 7:00 am, two of the three were open by 7:20 am and the third was opened at 8:00 am with early voting having begun at 7:30am.  Secretary of State Kevin Shelley called Director Arntz and sent him a letter congratulating the Department on a job well done. At the October 15 Commission meeting, Arntz received high praise from the Commission.

• November 2003 Municipal Election

The November Municipal Election was also completed with no problems of note.   One polling place didn’t open until 7:30 am but curbside voting began at 7:00 am.  The election went smoothly throughout the day, and media and public reports were uniformly positive.  99% of election results were in by 9:35 pm and the ballot processing center was closed at midnight – considerably earlier than in previous years.  The Secretary of State congratulated the Director several times for the Department’s accomplishments in the last two elections.  At the Commission meeting on November 19, all Commissioners added their praise.

• December 2003 Runoff Election

The December 9 Runoff Election also presented no major problems, with no obstacles to voters throughout the day.  Results from the precincts were posted by 9:40 pm.  Secretary of State Shelley called the Director the day after the election to congratulate the Department on a job well done.  At the December 17 meeting, the Director agreed, and reminded the Commission of the pressures and requirements on the Department in the last several years.  He told the Commission that having operated three successful elections in three months, the Department is probably the best in the state.  Commissioners agreed.

• Personnel Challenges

At the December 17 meeting, Director Arntz announced that he had been working with the Department of Human Resources to stabilize the Department by making more staff positions permanent.  Most of the current staff, many of whom had been with the Department for years, were classified as temporary and these workers had no job security.  Eight of these temporary positions had been recently made permanent.  Director Arntz was congratulated by the Commission for turning the Department around in only two years.

             At the January 7 meeting, Director Arntz reported that three Lead Clerk positions had been made permanent and he was working on doing the same for three Elections Worker positions.  By the beginning of the new fiscal year on July 1, 2004, Arntz thought that most of the Department’s staffing would have permanent or provisional status.

8.             March 2004 Presidential Primary Election

By any standard, the March 2 Primary Election went well.  All polls opened on time except for one that opened at 7:10 am, but voting at that site began at 7:00 am.  Phone calls into the Election Center were under one thousand and this is the least number of calls in recent memory.  San Francisco was the first county of its size to report precinct results to the Secretary of State’s Office.  John Mott-Smith of the Secretary of State’s Office called the Director to tell him that San Francisco’s can now be considered one of the “premiere” election departments in the state.  Secretary of State Kevin Shelley sent his fourth congratulatory letter to the Department. 

             At the March 10 Commission meeting, President Rosenthal congratulated the Director and the Department on a job well done, particularly in light of the challenges presented, including numerous ballot types, new federal requirements, new procedures at the polling places.  She pointed out that many other California counties experienced serious problems on election day, which San Francisco was able to avoid.  For example:

 

• In Orange County, as many as 7,000 voters may have received the incorrect ballot type.  One central committee race was affected by the error. 
• Napa County mailed the incorrect ballot type to 98 permanent absentee voters, and 34 of these ballots were voted and returned.  The error may have affected the outcome of a close Supervisorial race. 
• In Tuolomne County, 79 voters in one precinct received the incorrect ballot type, and those voters cast ballots in a bond election even though the voters were not eligible to vote in that election.
• In both San Diego and Alameda Counties, Diebold's touchscreen system had some technical problems.  Because poll workers were not trained to deal with the problem, many polling places opened late.
• In Fresno, some of the optical scan ballots were not printed to specifications, and this caused problems on Election Day.  The faulty ballots had to be set aside and counted by hand.  
• In Sacramento County, many voters were not adequately educated about new optical scan ballots, and marked their ballots incorrectly.  A large number of remakes were necessary to count the ballots.

The President said she had spoken with John Mott-Smith of the Secretary of State’s office who remarked that the Department and Director did a great job and that he was surprised at how quickly the department has turned around.

       C. Low Voter Turnout

At the September 3 Commission meeting, Commissioner Townsend asked Director Arntz about the Department’s initiatives to improve low voter turnout. Arntz replied that the primary purpose of the Department in outreach was for language assistance in Chinese and Spanish and this has been so for several years.  No funds have been appropriated to the Department specifically for outreach to areas with low voter turnout.

             At its meeting on March 17, the Commission held a public hearing regarding low voter turnout, particularly in communities of color and communities where English is not the primary language.  The stated goal of the hearing – called by Commissioners Townsend and Winnicker - was to discover how the Commission could help to increase turnout.  At that time, Director Arntz reported that the Department has one permanent outreach position who organizes approximately eight temporary staff.  These temporary employees usually are brought on board at the beginning of the fiscal year (July 1).  Outreach was conducted in Spanish, Chinese and Russian.  Staff generally attends community events and speaks to community groups.  Often, voting equipment and sample ballots have been taken to these meetings to demonstrate the voting process.  These events have also been used to recruit poll workers. 

             At the hearing, Commissioner Winnicker suggested that the Department put together a nonprofit organization called something similar to “Friends of the Voter” to help raise funds for voter outreach.  As many as thirty members of the public came to speak about the subject, and offered suggestions as to how the Commission could help.  The Director has analyzed the list of suggestions and has provided the Commission with input.  The suggestions made by Commissioners and the public have been discussed by the Commission on an ongoing basis, and several of the suggestions have been implemented.   

       D.       Voting Access for the Disabled

In March 2004, a federal suit was filed in Los Angeles on behalf of disabled voters against all California counties that did not use touchscreen systems.  The suit requested that each polling place be supplied with at least one touchscreen or similar system so that a disabled voter can have privacy when voting.  At a Board of Supervisors Rules Committee meeting in April of that year, Supervisor Michela Alioto-Pier also drew attention to the issue of accessibility for disabled voters, with special attention to the upgrades being made to implement ranked choice voting. 

             At the April 21 Commission meeting, Director Arntz reported that the Department’s Poll Locating division was cataloging all past precinct locations to determine their accessibility.  He stated that the Department would be checking our information with the Mayor’s Office on Disability, the Department of Justice and local groups to ensure that the information the Department uses regarding location accessibility is current.  The information will be used to create a data base of accessible polling locations. 

     

E.      Conclusion            The Commission and the Department were unable to implement Ranked Choice Voting within the short timeframe prescribed by the enabling legislation.  The City’s vendor, ES&S, was unable to get its system certified in time for the November 2003 election, and the Department’s backup plan for a partially manual count also fell short.  However, in May 2004, all signs pointed to a successful implementation of RCV for the November 2004 election.  ES&S’s system had been certified, the Department had begun its outreach program, and Commissioners and the public had a new confidence in the Department’s ability to operate an election with a new voting method.             The Department and the Commission faced other challenges during the exceptional 2003-04 election season, including a citywide budget crisis, an unprecedented Recall Election, two elections overlapping each other, personnel challenges, and accommodating the priorities of members of the Board of Supervisors, which included adding early voting sites and touchscreen systems.  In the face of these challenges, the Department and the Commission came through the exceptional 2003 election season with flying colors.  Having operated four successful elections in sequence, with no serious problems and within budget, the Department has certainly earned its new reputation for being among the best in the state.  
 

ADDENDUM

2003-2004 Report by the Commission Secretary

All correspondence to and from the Commission is available for public viewing at the lobby area of the Department and in the office of the Elections Commission.  Agendas for meetings are posted on the bulletin board at the main entrance to the Department of Elections, at the Main Public Library, at City Hall Room 408 or at the site of Special Meetings, and at the Election Commission website: http://sfgov.org/site/electionscommission 

The public can reach the Elections Commission by email at: elections.commission@sfgov.org.

The Elections Commission’s regular meetings are scheduled on the first and third Wednesday of each month and are held in City Hall room 400 at 7:00 pm, and are conducted following Robert’s Rules or Order.   Drafts of meeting minutes are posted to the Commission’s website within ten days of the meeting.  Finalized meeting minutes are posted to the internet after approval by the Commission at its next regular meeting.  Audio tapes of all meetings are maintained at the Commission office.

All motions approved by the Elections Commission can be located on the Commission’s website under “motions.”   These motions are numbered in sequence in the following manner:  the meeting month, day, and year, followed by a number that reflects in what order the motion was taken at that meeting.  The public can make an inquiry of subjects by typing in a key word and instituting a search for that topic.