Hasen [Loyola Los Angeles]: More on the San Diego Write-In Commentary
Hasen [Loyola Los Angeles]: More on the San Diego Write-In

Rick Hasen, Loyola Law School Los Angeles:

"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?…." [November 21, 2004; Election Law has more.

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