Borenstein: Oakland school trustee seated even though he probably lost election

Nick Resnick was sworn in Monday as an Oakland school district director. We endorsed him for the District 4 seat in the Nov. 8 election.

There’s only one problem: He probably didn’t win.

The troubled school board election exposed deficiencies with how Alameda County handled ranked choice voting and highlights the need for statewide standards.

To its credit, the Alameda County Board of Supervisors on Tuesday asked, and agreed to pay, for a recount of the school district election, the controversial Oakland mayor’s race and two close races in San Leandro, which also uses ranked choice voting.

But it’s unclear in the school board race whether the determinative result will be the official certified count, which showed Resnick the winner; the corrected tabulation conducted after an error was discovered, which placed Mike Hutchinson on top; or the recount.

The fate of the District 4 election ultimately will be decided in court. For now, Resnick will continue to serve.

It should not have come to this point of uncertainty. Given the growing use of ranked choice voting, it’s important to examine the Oakland school board race to avoid repeating mistakes.

Why use ranked choice voting? RCV provides a method of ensuring that winners have majority support without costly runoff elections. (It would have avoided, for example, the razor-thin, three-way Antioch City Council race in which the winner had just 34.3% of the vote.) And, in at-large elections with more than one seat at stake, ranked choice voting can increase the diversity of ideological and demographic representation.

In 2022, more than 100 elections in U.S. jurisdictions used ranked choice voting. In the Bay Area, San Francisco has used it since 2004; San Leandro, Berkeley and Oakland since 2010. In California, there’s growing interest and use among small municipalities, such as Albany and Palm Desert, that consider it a legal alternative to splitting their citywide elections into small geographic districts.

How it works: In a single-seat race, voters rank their candidate preferences. If no one wins a first-round majority, the candidate in last place is eliminated, and votes of those who preferred that candidate are reallocated to their second choice. The process is repeated until one candidate has a majority.

The Oakland school board race: In the first round of the official count for District 4, Resnick led with 38%, followed by Pecolia Manigo with 31.1% and Mike Hutchinson with 30.9%. So, Hutchinson was dropped, and his voters’ second choices were allocated, giving Resnick 51% and Manigo 49%. Resnick was the winner in the count certified Dec. 8.

What went wrong: On Dec. 23, members of FairVote, a ranked-choice advocacy group, after reviewing the data, advised Alameda County Registrar Tim Dupuis of a problem.

The issue pertains to counting of ballots in which a voter lists a write-in candidate as a first choice or makes no first-choice selection but lists subsequent choices. According to Dupuis, there were 235 such ballots. According to FairVote, about two-thirds of those had marked a first-choice write-in candidate and one-third had no first-choice selection.

The tabulation software the county uses allows either counting those ballots as having no first choice or counting those ballots for the next-highest-ranked candidate. The software was set using the former option. But the Oakland charter calls for the latter option, which, according to FairVote, is the way all U.S. jurisdictions using ranked choice voting handle ballots with no first choice.

The recalculation: After consulting with Dominion Voting Systems, the software vendor, over the Christmas holiday weekend, the county registrar on Dec. 27 retabulated the vote data to conform with the city charter.

The change reordered the candidate first-round finish, with Resnick still leading with 37.9%, but Hutchinson in second with 31.1% and Manigo last at 31.0%. Rather than Hutchinson being dropped, Manigo was eliminated. Then, Manigo’s voters’ second choices were allocated, resulting in Hutchinson winning with 50.5% and Resnick second with 49.5%.

Now what? The new tally came after the first count had been officially certified. It also came after the deadline for a recount request, which Resnick might have sought if earlier results had shown him losing.

Hutchinson’s lawyer argues that he should not be deprived of victory just because the software setting error was discovered late. Resnick’s lawyer argues that the certified count should be the final word.

Resnick’s lawyer also questions the recalculation process. He argues that the Oakland charter rule to ignore a write-in or blank first-round selection is an unconstitutional determination of a voter’s intent.

No state guidelines: The lack of state guidelines has made this more complicated for the county registrar. For most election issues, state law or the Secretary of State’s Office provides uniform rules. But for ranked choice voting, Dupuis relies on direction from the city clerks of the four cities in his county using ranked choice voting.

So, for example, the city clerks agreed to give voters the ability to rank up to five candidates in each contest. But Oakland’s charter requires voters be allowed “to rank as many choices as there are candidates,” which in the case of the mayoral race was 10 candidates. That didn’t happen.

The state could also require the county to release the anonymized vote data earlier, or in real time. That would have allowed observers such as Fair Vote to flag concerns before the vote tally was certified.

There’s been lots of griping about the complexity of ranked choice voting. But it’s much fairer, and more democratic, than the system used in most local elections in California in which someone can win with just a plurality.

Rather than end it, we need to fix it. For that, the state should provide uniformity so each county, indeed each city, doesn’t have to figure out ranked choice rules on its own.