Canaan

Does the City of San Diego's prohibition on write-in voting in municipal elections violate the state or federal Constitutions?

The California Elections Code provides procedures for write-in voting in all federal, state and local elections. (Elec. Code, §§ 7300-7313, 17100-17102.) [1] However, the California Constitution authorizes charter cities to adopt municipal election regulations irrespective of general laws on the same subject. (Cal. Const., art. XI, § 5, subd. (b)(3).) Pursuant to this constitutional authorization, the charter City of San Diego has enacted regulations governing the conduct of municipal elections. At the time this action was brought, section 27.2205 of the San Diego Municipal Code prohibited write-in voting in all primary and general municipal elections. [2] On June 17, 1985, after oral argument in this case, the San Diego City Council amended section 27.2205 to allow write-in candidates and write-in voting in municipal primary and special primary elections. Write-ins are still prohibited in general municipal, special general and recall elections. [3] This court may take judicial notice of the amendment of the ordinance. (Evid. Code, §…

I respectfully dissent.

The issue that the majority should have confronted is whether San Diego’s ban on write-in candidates and write-in voting has “a ‘real and appreciable impact’ upon the equality, fairness and integrity of the electoral process. [Citation.]” (Choudhry v. Free (1976) 17 Cal.3d 660, 664 [ 131 Cal.Rptr. 654 , 552 P.2d 438 ].) Only regulations with such impact should be subjected to strict scrutiny. (Ibid.) In my view, San Diego’s ordinance is nondiscriminatory and places a de minimis burden on the electoral process.

For a discussion of the appropriate equal protection analysis of this ordinance, I adopt as my view the analysis of the Court of Appeal, Fourth Appellate District, written by Acting Presiding Justice Wiener and concurred in by Justice Work and Justice Butler. That opinion follows, with appropriate additions and deletions: *

[] [I] begin with the premise that in our form of government, the right to vote is fundamental and essential. While the right is not expressly protected by the United States Constitution (Rodriguez v. Popular Democratic Party (1982) 457 U.S. 1, 9 [ 72 L.Ed.2d 628, 635 , 102 S.Ct. 2194 ]), the United States Supreme Court has…

I concur in the judgment and in the reasoning of the majority opinion as it pertains to elections for mayor and other individually elected *728 officers. That is the only question we are called upon to decide. I would reserve judgment as to the validity of the write-in prohibition as it pertains to San Diego’s quasi-district scheme for city council elections. Such elections may pose different issues (ante, pp. 722-723), best resolved in a case in which they have been raised in the trial court and briefed on appeal.

Reynoso, J., concurred.

Does the City of San Diego’s prohibition on write-in voting in municipal elections violate the state or federal Constitutions?

I.

The California Elections Code provides procedures for write-in voting in all federal, state and local elections. (Elec. Code, §§ 7300-7313, 17100-17102.) 1 However, the California Constitution authorizes charter cities to adopt municipal election regulations irrespective of general laws on the same subject. (Cal. Const., art. XI, § 5, subd. (b)(3).) Pursuant to this constitutional authorization, the charter City of San Diego has enacted regulations governing the conduct of municipal elections. At the time this action was brought, section 27.2205 of the San Diego Municipal Code prohibited write-in voting in all primary and general municipal elections. 2 On June 17, 1985, after oral argument in this case, the San Diego City Council amended section 27.2205 to allow write-in candidates and write-in voting in municipal primary and special primary elections. Write-ins are still pro *708 hibited in general municipal, special general and recall elections. 3 This court may take judicial notice of the amendment of the ordinance. (Evid. Code, § 452,…