More on the San Diego Write-in Ruling

The Union Tribune article is here. The Los Angeles Times article is here. The Union-Tribune story indicates that the judge stated he was bound by the only appellate authority on point, Fair v. Hernandez, 116 Cal.App.3d 868 (1981). In that case, a court refused to count four write-in votes for a candidate where the candidate’s name was written on a punch card, rather than on the correct space on the write-in ballot. The Fair court had concluded: “In each of these four instances the will of the voters was evident and the trial court so found. (Findings 36-39.) But it is not enough to find out generally the voter’s will, such will must be expressed in the manner prescribed by law. (McFarland v. Spengler (1926) 199 Cal. 147, 152 [248 P. 521].)”
An appeal is possible, and it would go to a different appellate court than the court that decided Fair, meaning that court would not be bound by the Fair decision. Fair is also distinguishable on grounds that the Fair court held the instructions for casting a write-in vote were clear, whereas the League has argued in the trial court and could argue on appeal that they were not, at least as to absentee voters. The news stories indicate that a decision on an appeal by the League has not been made.

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