The Los Angeles Times reports:
This city’s razor-close race for mayor, already attracting national attention because of write-in candidate and surf-shop owner Councilwoman Donna Frye, added another complication Wednesday: a court challenge over ballots with “empty ovals.”
A lawsuit filed by the San Diego League of Women Voters asks a judge to force election officials to find and count write-in votes that may have been overlooked because voters did not fill in a blank oval next to their candidate’s name.
Apparently, the disqualification of a number of ballots on which voters wrote Frye’s name but did not darken the write-in oval, will be the deciding factor in this election:
Although Frye once led Murphy by nearly 4,000 votes, her lead has evaporated over the last two weeks as county election workers have sorted through absentee, provisional and write-in ballots.
Murphy, seeking a second term, now leads by 2,300 votes, with about 20,000 yet to be counted. One reason Murphy has overtaken Frye is that many ballots have been ruled invalid.
The requirements for having a write-in ballot counted are generally quite stringent. Some say this is to encourage candidates to go through the “proper” channels of running for office: filing with the county clerk’s office, going through the primary election, etc. Others believe it is a pernicious conspiracy to perpetuate indefinitely the two party system. Write-in candidates fall victim to many perils that official, on ballot candidates do not. If “John Peterson” runs for office, only ballots cast for “John Peterson”, in those exact letters, will count. “Jack Peterson,” “John Petersen,” and “Jon Peterson,” theoretically, should not be counted for the actual candidate.
It is a shame that people who wanted to vote for Donna Frye will not have their vote counted, but this is precisely the type of risk Frye ran when she decided on a write-in platform. While it is easy to make the knee-jerk assumption that anyone who wrote Frye’s name on the ballot intended to vote for her, it is possible that some voters remembered her name (it was a high-profile campaign) and wrote her in on the line and then voted for someone else. Why would voters do this? Perhaps they just wanted to put all the options on their ballot to make it seem somehow more official or to put all the options before their eyes. (Note: The press has not indicated whether or not any such people, in fact, wrote in Frye’s name yet voted for someone else, but I would guess it happened on at least a few ballots.)
In any event, I can’t get past California Elections Code ยง 15342(a):
Any name written upon a ballot for a qualified write-in candidate, including a reasonable facsimile of the spelling of a name, shall be counted for the office, if it is written in the blank space provided and voted as specified below:
For voting systems in which write-in spaces appear directly below the list of candidates for that office and provide a voting space, no write-in vote shall be counted unless the voting space next to the write-in space is marked or slotted as directed in the voting instructions.
It would appear that the California Legislature has handed down the unambiguous mandate that one must darken the oval next to their write-in candidate for their vote to count. It would seem, then, that Ms. Fyre’s best chance to get these votes counted would be to have the statute somehow invalidated. Paging Laurence Tribe…
Update: Incumbent Mayor Murphy wins count by 2,205 votes, court phase next
More: Wizbang
Nathan Novak at 9:22 am
