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The race between Bob Filner and Carl DeMaio offers San Diegans a crisp, distinct choice for what they want the next leader of their city to be.
Judging from some of the questions I’ve been getting, especially in the wake of last week’s shenanigans, it’s a choice that certain people aren’t very excited about. Maybe they yearn for the moderate Republican that’s usually on the menu. Perhaps they have more of personal dislike for one or both of the candidates. Or they just really liked Bonnie Dumanis or Nathan Fletcher.
They want to know if they can write in a candidate for mayor.
The answer: No, you can’t.
There won’t even be a spot on the ballot to write one in if you wanted to. It’s either Filner or DeMaio.
The City Council made that clear in 2005 after Donna Frye’s wild near-election to mayor against Dick Murphy and Ron Roberts. We probably best remember her electric write-in campaign for the bubble fiasco, when a judge’s decision to not count thousands of votes effectively swung the election to Murphy.
But there was second legal issue at play too: whether any of the votes cast for Frye should’ve counted at all.
Before that election, the city charter and its municipal code — essentially its constitution and its governing laws, respectively — were at odds. The charter forbade write-ins for the general election, while the municipal code appeared to allow them. (My friend and colleague Scott Lewis did some bang-up work on this while he was at the Daily Transcript.)
The idea behind outlawing the write-in is simple: the voters have already selected their top two candidates in the primary here. Allowing more candidates saps much of the power and purpose from the primary election, an expensive and involved deal for local government.
After the 2004 election, a Roberts supporter sued to have the election invalidated and held again, solely between Roberts and Murphy. The gist of the suit: that San Diego’s city charter didn’t allow for write-ins. The supporter lost the case because the judges said it needed have been brought before the election.
But the next year the City Council changed the law to make it clear: write-ins are allowed in primary elections but not general elections.
By this time, the court’s views on this had changed. As Lewis wrote back then, the city used to not allow write-ins. But in 1985, the court said this dramatically curtailed the free-speech rights. Ten years ago, however, the court reversed that ruling, paving the way for the city to outlaw write-ins as it does now.
Eventually, the state Legislature cured the other flaw in the 2004 election. The unfilled bubbles that doomed Frye’s campaigns would actually count as votes in the future. The initial take: Frye would be mayor today if only that rule had been clear then.
Yes, but if the city’s rule on write-in candidates had been clear, she wouldn’t have been able to have that electric campaign to begin with.
I’m the editor of VOSD. You can reach me at email@example.com or 619.325.0526.
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