Last year, the election law world was buzzing with news that a trial court
in California had reversed the mayoral and city council elections in Compton
California based upon the theory of social scientist Jon Krosnick that the
election results were skewed because of the "primacy effect:" the tendency
of voters to vote for the candidate first on the ballot. (I have some issues
with Krosnick's social science, but that's for another time.) What was so
unprecedented was that on the basis of this effect, the court did not simply
order a new election, but instead made the losers of the elections into the
winners. The Court of Appeal quickly stayed the trial court ruling, and today
it issued its opinion
on the merits.
As to the mayoral race (which got the most attention), the court did not
reach the ballot order issue. The court simply held that there was no error
in the ballot order used. (Interestingly, the court held it is not an equal
protection violation to use a randomized ballot---so assuming Krosnick's theory
is correct it is ok to use a lottery to give one candidate an advantage over
another.) But as to one of the city council candidates, the court confirmed
what I have long argued (beginning when I had consulted for the city of Compton):
that a court cannot shift votes from one candidate to another based on the
ballot order effect. Here's the most relevant language from the opinion:
In this case, the trial court found a total of 144 illegal votes had been
cast in the runoff election, but found it impossible to determine in whose
favor (other than the nine illegal votes for Irving) the illegal votes had
been cast. Even if we were to assume that all 144 illegal votes had been
cast for Irving, subtracting 144 illegal votes from Irving’s total would
still have left her the victor with 5,270 legalvotes to Andrew’s 4,863 legal
votes. Therefore, the illegal votes cast for Irving did not change the result
of the election, and there was no other candidate with more legal votes than
Irving. Given Irving’s disqualification from taking office due to her offenses
against the elective franchise, the trial court should have entered a judgment
“annulling and setting aside the election.”
(§ 16603, italics added.)
Instead, in a ruling unprecedented, to our knowledge, in this country, the
trial court shifted 295 legal votes from Irving to Andrews based solely on
the 3.32% primacy effect assumed to be enjoyed, on average, by those listed
first on the ballot. While many courts and legislatures have recognized the
advantage afforded to candidates whose names are listed first on the ballot,
no judicial or statutory authority exists to reverse the given to some other
person for the same office, after deducting therefrom the illegal votes which
may be shown to have been given to that other person.”
Election results may only be challenged on one of the grounds specified in
section 16100. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25
Cal.4th 165, 192.) Name-order error occurring in the absence of fraud and
resulting purely from unintentional clerical error, as in this case, is not
a valid ground for an election contest under section 16100. The fact that
295 legal votes may have been cast for Irving solely because her name was
erroneously listed first on the ballot does not, in itself, impeach the integrity
of those 295 votes. Legal votes randomly cast by the least informed or least
interested voters are entitled to the same weight as legal votes cast by
the most highly educated and informed voters in our society. The legality
or illegality of a vote cast by a qualified voter in a lawful manner does
not depend upon the voter’s motive or purpose in voting a certain way. (See
Bush v. Head (1908) 154 Cal. 277, 281-82.) To shift 295 legal votes to “correct”
the votes “randomly” cast for Irving solely as a result of her erroneous
advantageous ballot position (and to award those same “random” votes to Andrews
based solely on the primacy effect theory) would be, without any lawful justification,
to disenfranchise those 295 voters. (See Shinn v. Heusner (1949) 91 Cal.App.2d
248, 252 [To invalidate lawfully cast absentee votes “would be, without warrant
to disfranchise these voters.”]; Dennen v. Jastro (1913) 23 Cal.App. 264,
267 [Clerk’s inadvertent error in listing the same candidate twice, as the
nominee of two different political parties, “should not disenfranchise the
entire vote of the district and vitiate the election, unless it be made to
appear that by reason of the irregularity the result was different from what
it would otherwise have been, or that it prevented the voter from freely,
fairly, and honestly expressing his choice of the candidate for the office.”];
Nelson v. Robinson (Fl. App. 1974) 301 So.2d 508 [A candidate’s unfavorable
ballot position which allowed voters to exercise free choice after a reasonable
study of the ballot, does not constitute a violation of equal protection.];
Roberts v. Byrd (Ky. 1961) 344 S.W.2d 378, 381 [Clerk’s failure to rotate
names every 50 ballots did not void the election.]; Bees v. Gilronan (Ohio
Com. Pl. 1953) 116 N.E.2d 317 [In the absence of fraud, election officials’
failure to properly rotate candidates’ names on the voting machine ballots
did not invalidate the election.].)
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html