[EL] California write-in case is not a constitutional case

[Richard Winger]

But today's State Court of Appeals decision on write-ins isn't about constitutionality, it's about construing statutes.  Courts are supposed to harmonize statutes, not just arbitrary say "let's follow this one and not these other two".  The Superior Court certainly didn't order the Secretary of State not to print write-in space on ballots.  It's legislating from the bench.  And it is especially egregious, since the legislative committee considered a bill on September 7 to abolish write-in space and DID NOT PASS IT.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Mon, 9/19/11, rhasen at law.uci.edu <rhasen at law.uci.edu> wrote:

From: rhasen at law.uci.edu <rhasen at law.uci.edu>
Subject: Re: [EL] why I support write-in voting capability
To: "richardwinger at yahoo.com" <richardwinger at yahoo.com>, "law-election at uci.edu" <law-election at uci.edu>
Date: Monday, September 19, 2011, 5:40 PM

   Richard, As a matter of policy I agree with you 100 percent. But I don't think a write in in round 2 of top 2 is constitutionally required. Sent from my Verizon Wireless BlackBerryFrom:  Richard Winger <richardwinger at yahoo.com>
Sender:  "law-election-bounces at department-lists.uci.edu"
	<law-election-bounces at department-lists.uci.edu>
Date: Mon, 19 Sep 2011 17:35:00 -0700To: law-election at uci.edu<law-election at uci.edu>ReplyTo:  "richardwinger at yahoo.com" <richardwinger at yahoo.com>
Subject: [EL] why I support write-in voting capability
Rick Hasen has been very good to me, and I hugely appreciate his election law blog.  It is my single best source of election law news.

But I am puzzled by how a liberal person like Rick can be so cavalier about California voters losing their ability to cast a write-in vote.  Write-in voting is very valuable.  Three times Californians have used write-ins to elect a member of Congress at the general election.  In 1930, because of the write-in option, California was spared the need to administer a special election.  The incumbent congressman from Sacramento, Charles Curry, died on a Saturday night, which happened to be the very last day at which a candidate could die and have his her name removed from the November ballot.  He had been the only name on the ballot, and so California had a ballot with no names on the ballot in
 November 1930 (the Republican Party just didn't have time to name a replacement nominee).  Fortunately, write-in space was available and voters chose someone else by write-in vote.

In 1982, the write-in was useful for a different reason.  The winner of the Republican primary for US House, 43rd district, was revealed after the June primary to have engaged in underhanded campaign finance practices.  The 43rd district was a Republican leaning district, but the voters didn't want to elect a Republican who was ethically challenged.  Thanks to the write-in, they had another option, and they elected Ron Packard, a "sore loser" in the primary.

We all saw the usefulness of write-in space on the Alaska ballot last year, in the U.S. Senate race.  Similarly, the write-in was very useful in South Carolina in 1954, when the the incumbent Democratic U.S. Senator died after the primary, and the Democratic Party state committee
 chose someone to replace him who was very unpopular.  The replacement could not have been defeated (because no other party was running anyone), except for the existence of write-in space.

In 1998, there were two candidates on the November ballot for Tennessee State Senator.  The Republican nominee murdered his Democratic opponent.  The timing was such that the murdered Democratic nominee, the incumbent, was removed from the ballot; but the Republican remained on the ballot because he hadn't been convicted yet.  Thanks to write-in space on the ballot, the voters had an option other than voting for a murderer.

45 states print write-in space on the ballot.  Only one state, Louisiana, has ever had write-in space on the ballot and then removed it and never restored it.  The number of states with write-in space on the November ballot is higher now than it has ever been in U.S. history.  States that once banned
 it, but which brought it back, include Delaware, Indiana, and Ohio.

Write-in space is especially important when there is a long time gap between the primary and the general election, which is the case in California.  Lots can happen in 5 months.

But now, because the California legislature passed a bill in 2009 that had been introduced only an hour earlier, in the middle of the night, with the ungrammatical sentence, "A person whose name has been written on the ballot as a write-in candidate shall not be counted" is treated with more respect by today's decision of the California Court of Appeals, then two contradictory election laws that say that write-in space should be on the ballot and that voters have the right to cast a write-in office "for any office" "in any election."  Those latter two laws were passed by the normal legislative process, with hearings and public input.  Yet they are relegated to the trash heap because
 of another statute that got no conscious consideration in the legislature, and certainly not by the public.

What an undignified, lowly process by which Californians have lost their right to cast a write-in vote.  And how can Rick take this with such equanimity and even happiness?  The right to vote includes the right of choice for whom to vote.  It is as though the most influential people in our state and our nation have silently concluded that the people are not worthy of self-government, and to the greatest extent possible, their voting power will be shrunk.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147
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