Write-In Voting in Municipal Runoff Not Constitutional Right

Friday, November 8, 2002

Page 1

Write-In Voting in Municipal Runoff Not Constitutional Right—S.C.

By KENNETH OFGANG , Staff Writer/Appellate Courts

The California Constitution does not guarantee a right to become a write-in candidate or cast a write-in vote in a municipal runoff election, the state Supreme Court ruled yesterday.

The high court, overturning a First District Court of Appeal ruling and receding from its own holding in a 1985 case, said that San Francisco is not required to allow write-in candidacies in its runoff elections.

The decision in favor of San Francisco was unanimous. But Justice Carlos Moreno, joined by Justices Joyce L. Kennard and Kathryn M. Werdegar, argued for a narrower holding, limited to cities that conduct runoffs right after the first election.

The ruling stems from a suit by Michael Edelstein, who wanted to enter the 1999 mayoral runoff in order to give voters an alternative to incumbent Willie Brown and Supervisor Tom Ammiano. Ammiano’s late-starting, under-funded write-in campaign allowed him to pass former Mayor Frank Jordan and take on the mayor in what proved to be an unsuccessful effort to deny him a second term.

Charter Amendment

The city’s elections director rejected Edelstein’s papers on advice of the city attorney, who held that the 1973 charter amendment providing that if no candidate receives a majority, “the two candidates receiving the most votes shall qualify” for the runoff precludes write-in votes.

Edelstein sued. If the charter provision—which originally applied only to the mayoral election but was later amended to apply to all offices other than school board and community college board—precludes write-ins, he argued, it violates his constitutional right of free speech, as well as a state statute allowing write-ins “for any public office…on the ballot of any election.”

The city argued that the statute does not apply to charter cities, which have the right to legislate for themselves on matters that are not of “statewide concern,” and that a 1992 U.S. Supreme Court decision allowing Hawaii to eliminate all write-in voting established that its more limited ban was constitutional.

San Francisco Superior Court Judge David Garcia agreed, but the First District Court of Appeal reversed, saying it was bound by Canaan v. Abdelnour (1985) 40 Cal.3d 703, which held that there was a state and federal constitutional right to vote for a write-in candidate.

Argument Rejected

In rejecting the statutory argument, Justice Janice Rogers Brown—writing for the court—concluded that even if San Francisco were not a charter city, it could ban write-ins in runoffs. A runoff, she reasoned, is an extension of the original election, so allowing write-ins in the first round satisfies the statute.

Canaan, she went on to say, is not longer controlling as to the federal Constitution, since it was superseded by the U.S. high court ruling in the Hawaii case, Burdick v. Takushi (1992) 504 U.S. 428. While the California Constitution is often interpreted as providing broader free-speech rights, that is not always the case, she noted.

The free-speech claim, she said, must be balanced against the city’s interests in ensuring that its officials are elected by majority vote.

She rejected the plaintiffs’ argument that voters have a broad “expressive” free-speech right—a right to choose a candidate even if that person has no chance of being elected. The primary purpose of an election, she declared, is to elect officials, not to give every voter a chance to express an opinion.

Moreno argued in his concurrence that the city’s interest in assuring a majority vote is more limited than the majority concluded. After all, he argued, the president, governor, and members of Congress and the Legislature can all be elected without a majority.

He sided with San Francisco, however, agreeing that the city had a more specific interest—avoiding the political fragmentation that might occur if an election in which several candidates split the vote is followed by a runoff in which those candidates, and others, can run as write-ins.

On the other hand, he argued, voters faced with the situation in Canaan—where the mayor of San Diego was indicted on felony charges during the five-month interval between the first election and the runoff in which he was a candidate—should be given an alternative.

The cities of Los Angeles, Redlands, and Monterey joined in an amicus brief supporting San Francisco. While none of those cities now bans write-ins in runoffs, the decision frees them to do so.

The case is Edelstein v. City and County of San Francisco, 02 S.O.S. 5678.