Breaking News: Court of Appeal Rejects Request for Revote in San Diego Write-in Case

The Court of Appeal's opinion in McKinney v. Superior Court reaches the right result in my opinion in holding (along with a statutory holding) that laches barred the argument that the San Diego clerk never should have allowed write-in votes in the San Diego mayoral election:

There is no doubt that in this case any arguable violation of the charter was discoverable pre-election. Now, McKinney’s answer to this point is that he, like most voters, was not aware of the city charter provision which (again we do not decide the issue) precluded any write-in candidates. But that is an untenable rule. It means that voters can close their eyes and not check an election for irregularities -- here, for example, apparent with the mailing of the sample ballot -- and wait to see if the ineligible candidate has an effect on the outcome. (See Soules v. Kauaians Nukolii Campaign Committee (9th Cir. 1988) 849 F.2d 1176, 1182 [applying laches in Hawaiian case where appellants sought federal overturning of state election because of the importance of requiring pre-election challenges to prevent “sandbagging on the part of wily plaintiffs”].) To adopt McKinney’s position would seriously destabilize California election law, which has the advantage of specifically encouraging pre-election challenges precisely in order to avoid this sort of instability.

The Court noted that it was not considering the separate question whether write-in votes cast for Frye that were not bubbled correctly should be counted. That is the subject of a separate suit and possible post-certification contest by Frye.

Posted by Rick Hasen at December 7, 2004 01:49 PM