San Diego Mayoral Write-in Controversy
It looks like a write-in candidate may win the mayoral race in San
Diego (a situation that has captured the
attention of the New York Times).
A legal challenge has been mounted to the ability of voters to
choose a write-in candidate for mayor in a runoff between two listed
candidates. Here are news reports on yesterday's developments,
including the recusal of all San Diego area judges: A.P.;
San
Diego Union-Tribune; Los
Angeles Times; Long
Beach Star-Telegram (noting that the Long Beach mayor in 2002 won
as a write-in).
According to the news articles, the legal question is whether there
is a conflict between the municipal code, which permits write-in
candidates, and the city charter, stating that the winner of the
general election must receive a majority of the votes.
Here is what I found in the relevant part of Article
II, Section 10 of the city charter:
All elective officers of the City shall be nominated at the
municipal primary election. In the event one candidate receives the
majority of votes cast for all candidates for nomination to a
particular elective office, the candidate so receiving such majority of
votes shall be deemed to be and declared by the Council to be elected
to such office. In the event no candidate receives a majority of votes
cast as aforesaid, the two candidates receiving the highest number of
votes for a particular elective office at said primary shall
be the candidates, and only candidates, for such office and the names
of only those two candidates shall be printed upon the ballots to be
used at the general municipal election.
It looks like the argument hinges on the language about the two
finalists being "the candidates, and only candidates, for such office."
Should this trump Section
27.0301
of the municipal code, which flatly provides: "Write-in candidates are
permitted in municipal elections including special elections called by
the City Council pursuant to Section 27.0107 of this article"?
It is certainly possible to read the sections in harmony, so that
the "only candidates" language applies to those candidates who are
listed on the ballot. But of course it is also possible to read the
charter as conflicting with the coe, and presumably trumping it.
Why the conflict? Perhaps it has to do with the fact that San
Diego's old ban on write-in candidates was struck down by the
California Supreme Court, in precedent that the California Supreme
Court overruled a few years ago in a case upholding San Francisco's
right to ban write-in candidacies. Fred Woocher has more details here.
New Mexico's Vote Counting for President is Still a
Mess
See this
report in the Albuquerque Journal.
"The Next Reform Battle"
The Palm Beach Post offers this
editorial,
which begins: "Don't ask people in New York or Alabama if federal
campaign-finance reform is working. They were solid blue and red long
before Nov. 2, so their TV commercials were about soap and soda. Ask
people in Florida, Ohio and other battleground states inundated with
spots trashing or deifying George Bush or John Kerry. No way, no how
did McCain-Feingold work."
"Help America Vote"
The Washington Post offers this
editorial.
"Rossi Leads Washington Governor's Race"
A.P. offers this
report.
"No Vote Necessary: Redistricting is Creating a House
of Lords"
David Broder offers this
Washington Post column.
"Latest Conspiracy Theory--Kerry Won--Hits the Ether"
The Washington Post offers this
report.
Two By Chin
Jack
Chin has published "Reconstruction, Felon Disenfranchisement, and the
Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the
Fourteenth Amendment?," 92 Georgetown Law Journal 259 (2004) and "The
'Voting Rights Act of 1867': The Constitutionality of Federal
Regulation of Suffrage During Reconstruction," 82 North Carolina Law
Review 1581 (2004). I read the Georgetown piece in draft and recommend
it highly.
Evan on Election Reform
I have just received in the mail a copy of William M. Evan, Voting
Technology, Political Institutions, Legal Institutions and Civil
Society: A Study of the Hypothesis of Cultural Lag in Reverse,
History & Technology, Vol. 20, No. 2 (June 2004). Here is the
abstract:
The 2000 Presidential election was plagued by butterfly ballots
and 'pregnant chads'. Electronic voting systems, lacking verifiable
paper trails that are subject to possible fraud, promise to wreak havoc
with the 2004 Presidential election. There is a great diversity of
systems of voting technology in the 50 states: from paper ballots,
lever-operated machines and punch cards to optical scanners and
electronic systems. Associated with each technology is an estimated
error rate. The underlying theory of this paper was set forth by
William F. Ogburn in his famous book entitled Social Change, published
in 1922. Dividing culture into material and non-material elements,
Ogburn argued that non-material elements lag behind material elements.
His explanation for this lag is that technology, which underlies
material culture, changes at a faster rate than elements of
non-material culture. Obgurn did not contemplate the possibility of a
reverse lag, viz., technology lagging behind non-material culture. In
analyzing the anomalous relationships between voting technology,
political institutions and legal institutions, a striking instance of a
'reverse cultural lag' is discerned. To eliminate the phenomenon of the
reverse cultural lag, there is a need for a federally-funded program of
a uniform, state-of-the-art voting technology, plus an amended Help
America Vote Act, to implement the innovations in the 3,114 counties.
The complex problems reviewed in this paper point to a vexing question:
how do we educate an electorate in a democratic society--such as the
United States in the twenty-first century--to be responsible for
ensuring that periodically-elected representatives implement the will
of the people?
--
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
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org