State Justices Ponder S.D.’s Write-In Ban

In a lively hearing here Wednesday, state Supreme Court justices considered whether they should declare San Diego’s ban on write-in ballots in municipal elections unconstitutional.

Although San Diegans may write in candidates in state, congressional and presidential races, the City Charter prohibits write-in candidates in mayoral and city council elections. San Diego appears to be the only city in California with such a provision in its charter, according to attorneys in the case.

During hourlong oral arguments Wednesday morning, the justices rarely sat back and listened. Instead, they played the role of devil’s advocate--interrupting plaintiffs’ attorneys to suggest that write-ins might wreak havoc with local elections and, minutes later, peppering San Diego Deputy City Atty. Kenneth So, who was defending the ban, with questions suggesting that a write-in ballot might be vital.

Justice Cruz Reynoso, for instance, suggested that a write-in ballot might permit Mickey Mouse to be elected to city office. “He’s said to have been born in the country--and I guess he’s 35,” Reynoso noted.

And he worried about what would happen if a “white racist” ran as a write-in candidate for city council in a black district, put on “a terrific media campaign” in the citywide election--and won.

But later, Justice Stanley Mosk wondered what harm there would be if write-ins were allowed. “Some states have permitted people to vote by allowing them to write in ‘None of the Above,’ ” he said. “Wouldn’t it be better to allow write-in candidates?” he asked So.

In legal briefs and in his oral argument, So contended that San Diego has a right to require that candidates declare their intentions for an election well in advance of an election and to “winnow” finalists from a larger field with primary elections.

That was particularly important, he said, in council elections in which the top two candidates in a district primary qualify for a citywide runoff.

“The City of San Diego does not want a system whereby someone who represents Council District 8 does not have the support of the voters of Council District 8,” So said. A write-in ballot, he suggested, could allow a candidate who did not succeed in the primary to be selected by voters citywide.

So was defending San Diego on behalf of City Clerk Charles Abdelnour. Abdelnour was sued last April by Jack Canaan, a San Diego public relations executive who wanted to write in a candidate in the 1984 mayoral race, and by William Brotherton, a potential write-in candidate.

In their suit, filed by attorney Michael Schaefer, a former San Diego city councilman, they charge that Abdelnour disenfranchised them when he refused to certify Brotherton’s candidacy petition for the June 5 primary. The American Civil Liberties Union recently joined their suit, claiming that the plaintiffs’ constitutional rights to vote and to express themselves had been abridged.

In September, the 4th District Court of Appeal upheld the city’s right to prohibit write-ins, ruling that the city ordinance “does not directly restrict one’s right to vote” in municipal elections.

But Schaefer argued Wednesday that voters were being restricted. The lengthy time period between San Diego’s required filing date and the general election--about eight months instead of the state’s filing requirement of 14 days before an election for write-ins--could make it impossible for San Diego voters to select an alternative if one of their two final candidates were to die after the filing date, Schaefer said.

He cited the hypothetical example of a black council district in which the finalists were a Ku Klux Klan member and a black politician. If the black politician dies before the election, the Ku Klux Klan member would win by default.

He added, “I think this (the write-in ballot) is a pressure valve that must be opened so we don’t have nincompoops getting elected to public office by default.”

The Supreme Court is not expected to rule on the case of Canaan vs. Abdelnour for several months.

Meanwhile, the San Diego City Council on Monday directed the city attorney to begin drafting an ordinance that would permit write-in ballots in city elections. During Wednesday’s hearings, several justices suggested to the plaintiffs that the matter might better be handled by new city legislation than by declaring the ordinance unconstitutional.