More on the San Diego Write-In Lawsuit
The
incumbent mayor, Dick Murphy, will be reelected unless one of the three
lawsuits currently pending is successful, or unless there is a recount
that will lead to a different result. News stories on the end of
counting showing Murphy in the lead are here
and here.
I have already blogged
about two of the lawsuits, which seek a revote on grounds that the San
Diego city charter prohibits write-in candidacies. I think the state
court judge was right that this suit should be barred by laches, and
the state case is now going up on appeal. A federal district court
judge is hearing a parallel suit in a hearing Nov. 30.
The other lawsuit is quite interesting. According to the press
reports, there may be as many as 4,000 or 5,000 votes for Donna Frye,
the write-in candidate, where voters wrote in Frye's name on the ballot
but they failed to fill in an oval bubble next to the write-in space.
The League of Women Voters want those votes counted. Elections
officials won't count them because of California Elections Code section
15432, subd. (a), which states:
Any name written upon a ballot for a qualified write-in
candidate, including a reasonable facsimile of the spelling of a name,
shall be counted for the office, if it is written in the blank space
provided and voted as specified below:
(a) For voting systems in
which write-in spaces appear directly below the list of candidates for
that office and provide a voting space, no write-in vote shall be
counted unless the voting space next to the write-in space is marked or
slotted as directed in the voting instructions.
The rules for casting a vote told voters to "completely darken the oval
next to" the written name of the write-in candidate.
The League raises a few arguments, some stronger than others.
1. The absentee ballot instructions did not indicate that the oval must
be filled in. I had looked at those "1-2-3 instructions" the other day
on the San Diego Registrar's website, but they seem to have been taken
down. According to the League, the instructions did not say anything
about darkening in the oval when one wished to vote for a write-in
candidate. So one argument---and this appears to be the strongest
one--is that it does not violate the California Elections Code to count
the absentee ballots cast for Frye without the oval filled in, because
those ballots in fact were cast in accordance with the instructions.
The New Jersey Supreme Court apparently ruled that write-in votes
should be counted under similar circumstances. (See here.)
If the judge agrees, it may be impossible at this point to know which
were the absentee ballots cast in this manner, creating a difficulty in
the remedy. Should all unbubbled write-in votes count? Only part? How
many?
2. The League also argues that there is no rationale for the bubble
requirement in this election. It can serve an administrative
convenience purpose (it would be easier to find the write-in ballots)
but the ballots in this case have already been sorted by hand. The real
question is whether to ignore the rule as written. This presents a
typical issue of the choice between following the rules as written and
folloing the intent of the voter. We know in Florida, for example, that
ballots where a voter both punched (or bubbled) a vote for Gore and
wrote in Gore were not counted. Few argued that they should be. If the
instructions are clear (but see point 1), there's a stronger fairness
argument in favor of following the ex ante rules.
3. Relatedly, the League argues that not counting the votes violates
equal protection under Bush v. Gore and the California constitution's
guarantee that all votes cast in accordance with the state's laws shall
be counted. I don't see this as adding much to the argument. If the
rules were not followed, then the state Constitution doesn't require
the counting of the votes. And even under the broadest reading of Bush
v. Gore, I haven't heard anyone argue that the intent of the voter
should be followed even if it violates state law. So the question
returns to those absentee ballots. If the instructions were not clear,
then those votes without bubbles arguably were cast in accordance with
the voting instructions and should be counted.
Finally, there is a laches issue, as arose in the last suit. We know
that Frye's attorneys and I believe others complained to elections
officials about the bubble rule in advance---but when rebuffed by city
officials, they did not seek judicial relief.
Murphy's lawyers exercised a peremptory challenge against the judge
scheduled to hear the case (the same state court judge that ruled in
the first case that write-ins should be counted). I do not know who
will hear the case Monday, but all the Superior Court judges in San
Diego have been disqualified to avoid the appearance of a conflict of
interest; Murphy is a former Superior Court judge.
"Recount Begins in Wash. Governor's Race"
A.P. offers this
report.
"Top Bush Fundraisers Move on to Inaugural"
The Los Angeles Times offers this
report.
"How Do We Fix State Elections"
The News Tribune (Tacoma) offers these
thoughts.
Kristof on Creating Nonpartisan Redistricting
Commissions, and Anonymous Campaign Donations
All in one New
York Times column!
"California Rep. Lofgren proposes abolishing
Electoral College"
A.P. offers this
report.
"Academia Still Fixated on John Kerry"
A.P. offers this
report, which discusses the new Berkeley study.
ACLU Sues to Overturn Rhode Island Laws Limiting
Contributions and Expenditures in Ballot Measure Campaigns
The Providence Journal story is here.
As it happens, this week I posted this
paper on the constitutionality of such laws in light of recent
Supreme Court rulings.
--
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