[EL] top two ruling

Wed Aug 24 17:41:07 PDT 2011

Not to drift too far into policy debate, but this refusal to allow write-ins
is an political accident waiting to happen even if  ultimately upheld. The
problem is the long gap between rounds of voting and lack of a rational
substitution process if a candidate withdaws.

In Louisiana's preferable version of this system, all candidates contest the
first round in November, and a contingent runoff will follow in December in
the event no candidate wins with an initial majority --so the gap in time s
short, and candidate substitution is unlikely to be issue. (The state uses
ranked choice ballots for overseas and out-of-state military voters in the
first round to ensure they have ballots ready to count in the runoff, fyi.)
In Washington's state's version, the party a candidate has indicated an
association with in the primary can substitute a candidate in the event that
candidate withdraws or is off the ballot. But in California, the substitute
candidate is automatically just the third-place primmary finisher regardless
of party

The problem is that a district with a strong lean toward one party and a
strong incumbent may well have not had another candidate contest the primary
race. So it's just a matter of time before some heavily Democratic district
or some heavily Republican district has its preferred candidate taken off
the ballot for some reason, and substituted with a candidate of another
party. The final choice then will end up being two candidates who aren't of
the majority party in the district. For instance, Jerry Brown was the only
Democrat in the 2010 governor's race in the primary, so if a top two system
had been in place and he had to withdraw after the primary, the November
election would have been between two Republicans -- and the only option for
Democrats would be to choose between them.

One also could have a district with a majority of one party, but where none
of its candidates make the runoff due to "too many" of its candidates
running in the first round, and splitting the vote such that none of them
finish in the top two. And again, their voters would be out of luck with
having a candidate to vote for in the decisive runoff and no power to do a
write-in.

I've seen no indication the California legislature is interesting in fixing
this and other statutory problems in SB 6, the implementing statute for the
constitutional amendment, despite it being drafted very quickly with little
deliberation. My review of the proposed Arizona Top Two statute indicates it
may end up with this same problem, although it's unclear yet. (That Arizona
proposal raises other issues too -- for instance, it would not have public
financing in the first round when all candidates run, but only in the second
round runoff between the top two candidates, which may raise legal
questions.)

We live in interesting times for election law.

Rob Richie

On Wed, Aug 24, 2011 at 8:21 PM, David A. Holtzman <David at holtzmanlaw.com>wrote:

>  "any voter who knows enough to sue over this issue would fail on the
> claim because she could not be deceived by the state on this point."
>
> Moreover, aren’t voters supposed to know that write-in votes are only valid
> for candidates on the list of certified write-in candidates?
> That list should always be empty in top-two general elections.
>   - dah
>
> On 8/24/2011 3:35 PM, Rick Hasen wrote:
>
>  Federal District Court, on Its Own Motion, Grants Summary Judgment for
> CA, Rejecting Challenge to Top-Two Primary<http://electionlawblog.org/?p=22211>
> Posted on August 24, 2011 3:34 pm <http://electionlawblog.org/?p=22211> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> You can read the district court’s 17-page order here<http://electionlawblog.org/wp-content/uploads/146-00-Order-Granting-Summary-Judgment.pdf>.
> Not only did the challengers to the law fail in their attempt to get parts
> of Prop. 14 struck down, the district court, after giving notice to the
> challengers, granted summary judgment for the state.
>
> I thought the strongest argument of the challengers was to the quirk in the
> law that allows voters to write in the name of a candidate during the second
> round of the election (between the top two vote-getters in round one), but
> then not to count such votes.  Here is how the court dealt with that issue:
>
> To the extent Plaintiffs argue that their constitutional rights have been
> violated because SB6 “deceives both candidates and voters” by giving the
> “illusion” that write-in voting in a general election is permissible, (Mot.
> at 16-18), the Court finds this argument unavailing. SB6 gives no such
> illusion. Rather, SB6 is very clear that write-in votes will not be counted.
> Cal. Elec. Code § 8606 (“A person whose name has been written on the ballot
> as a write-in candidate at the general election for a voter-nominated office
> shall not be counted.”). Furthermore, on March 2, 2011, Bowen’s Chief
> Counsel clarified that SB6 would allow Frederick to run in the general
> election only if he was “one of the top-two voters getters at the primary
> election.” (SUF No. 28; Dutta Decl., Exh. X.) Hence, both Frederick and
> Wilson were aware that write-in votes in the general election would not be
> counted. (DSUF No. 45.) Neither California law nor California’s elections
> officials have been unclear about California’s write-in restrictions.
>
> I suppose this means that any voter who knows enough to sue over this issue
> would fail on the claim because she could not be deceived by the state on
> this point.
>  --
> David A. Holtzman, M.P.H., J.D.
> david at holtzmanlaw.com
>
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