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.