Rick Hasen's web log
November 12, 2004
A Bit More on the San Diego Write-In Cases
Following up on my earlier posts here and here, a few more thoughts on this case.
1. The federal claims are very weak. I had a chance to look at the federal complaint, which basically alleges that San Diego's allowance of a write-in candidacy here violates the First Amendment right to association (under the political party association cases such as California Democratic Party v. Jones) and equal protection. In essence, the argument is that because the runoff was between two Republicans, allowing a Democratic party write-in is unconstitutional.
This claim strikes me as quite weak. Assuming (a big assumption--see number 2 below) the federal court would hear this claim on the merits, I think it is really weak. This is not a party primary or election (this is a runoff in a non-partisan election), so party associational rights are not implicated. And an equal protection claim is trumped by the city's right to structure its election in any reasonable way. Cases like the Burdick case give the city widespread discretion to decide how best to structure their electoral process, including to allow write-ins to run in a runoff election.
2. The federal case cries out for abstention. Here you have a pending state court case, and it is a case that potentially resolves any constitutional issues (e.g., the state court could rule that the write-in votes won't count under local law). It is hard to see a federal court deciding to get involved at this point.
3. The laches argument in the state suit. As readers of this blog know, I'm a big believer in the laches doctrine in election law cases. If you have a chance to sue about an election problem before an election, you should have to do so before and forfeit your chances to sue after. Why didn't someone sue before the election to block San Diego from allowing voters to write in candidates in the election? To allow the suit now gives people an option to sue to overturn the rules only after viewing the result under those rules.
4. The question on the merits could be a close one. Assuming laches doesn't bar the state law suit, I would need to do more research to form an opinion on the local law question---whether the city charter trumps the municipal code because of a conflict between the two. As my earlier post indicated, it is not clear that the two are necessarily in conflict.