Edelstein v. City of San Francisco

• Decision Date: 07 November 2002
• Docket Number: No. S102530.,S102530.
• Citation: 29 Cal.4th 164,126 Cal.Rptr.2d 727,56 P.3d 1029
• Court: California Supreme Court
• Parties: Michael EDELSTEIN et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

126 Cal.Rptr.2d 727

29 Cal.4th 164

56 P.3d 1029

Michael EDELSTEIN et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

No. S102530.

Supreme Court of California.

November 7, 2002.

J. Michael Schaefer, Las Vegas, NV, for Plaintiffs and Appellants.

Dennis J. Herrera and Louise H. Renne, City Attorneys, Therese M. Stewart, Chief Deputy City Attorney, Thomas J. Owen, Randy Riddle, Ellen Forman, and K. Scott Dickey, Deputy City Attorneys, for Defendant and Respondent.

Rockard J. Delgadillo, City Attorney (Los Angeles), Patricia V. Tubert Claudia Culling and Anthony Saul Alperin, Assistant City Attorneys, for Cities of Los Angeles, Monterey and Redlands as Amici Curiae on behalf of Defendant and Respondent.

BROWN, J.

The question presented by this case is whether former section 13.102 of article XIII of the Charter of the City and County of San Francisco (repealed Mar. 5, 2000; hereafter section 13.102), by prohibiting write-in voting in runoff elections for municipal offices, violated the free speech clause of the California Constitution (art. I, § 2, subd. (a)). We conclude it did not.

In Canaan v. Abdelnour (1985) 40 Cal.3d 703, 221 Cal.Rptr. 468, 710 P.2d 268 (Canaan), this court struck down, as violative of the free speech clauses of both the state and federal Constitutions, San Diego's prohibition on write-in voting in its municipal general elections. However, in Burdick v. Takushi (1992) 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (Burdick), the United States Supreme Court later upheld, against a federal constitutional challenge, Hawaii's total ban on write-in voting. The California free speech clause is broader and more protective than the First Amendment free speech clause. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366-367, 93 Cal.Rptr.2d 1, 993 P.2d 334.) However, the fact that our provision is worded more expansively and has been interpreted as being more protective than the First Amendment in some respects does not mean that it is broader in all its applications. (Los Angeles Alliance, at p. 367, 93 Cal.Rptr.2d 1,993 P.2d 334.) Generally, when we interpret a provision of the California Constitution that is similar to a provision of the federal Constitution, we will not depart from the United States Supreme Court's construction of the similar federal provision unless we are given cogent reasons to do so. (People v. Monge (1997) 16 Cal.4th 826, 844, 66 Cal.Rptr.2d 853, 941 P.2d 1121.) And, specifically, "[i]n analyzing constitutional challenges to election laws, this court has followed closely the analysis of the United States Supreme Court. [Citations.]" (Canaan, supra, 40 Cal.3d at p. 710,221 Cal.Rptr. 468,710 P.2d 268.) That is what this court tried to do in Canaan. The Canaan court anticipated, correctly, that the high court would review a challenge to a restriction on write-in voting under the standard it had announced in Anderson v. Celebrezze (1983) 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (Anderson).¹ However, even though the Canaan court voiced the right standard, it got the wrong answer, at least as far as the federal Constitution is concerned, as Burdick revealed.

Given that Burdick upheld a total ban on write-in voting, plaintiffs cannot, and do not, contend that San Francisco's ban on write-in voting in runoff elections violated their First and Fourteenth Amendment rights under the Araferson/Burdick standard. Instead, plaintiffs claim the free speech clause of the California Constitution provides greater protection for writein candidates and, voters than does the free speech clause of the federal Constitution. However, plaintiffs have entirely failed to supply us with cogent reasons, and we have discovered none ourselves, to conclude that disallowing write-in voting in runoff elections violates the free speech clause of the California Constitution. Because San Francisco allows write-in voting in its municipal general elections, we need not reach the question whether a total ban on write-in voting would offend the state Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

At the General Election held on November 6, 1973, San Francisco voters approved Proposition D, a measure amending the election provisions of the San Francisco charter to provide, in the event no mayoral candidate received a majority of the votes cast, for a runoff contest between the two candidates receiving the highest number of votes. In the ballot pamphlet, the proponents of Proposition D argued that its adoption was necessary to ensure that the mayor would in the future be elected by a majority of the voters. "The office of Mayor is now chosen by a plurality vote. Under this archaic voting system mayors in San Francisco may be voted into office by support of a very small minority of the voters—even a scant twenty percent or less. This is made possible because of the increasing number of candidates who run for the office of Mayor. Under the present system San Francisco has elected a Mayor representing a majority vote only five times in the last eleven mayoral elections." (S.F. Ballot Pamp., Gen. Mun. Elec. (Nov. 6, 1973) pp. 60-61.)

The runoff provision, which was codified in section 13.102, was subsequently amended to include almost all elective offices in San Francisco. Although the text of section 13.102, at the time of the election in question, did not expressly so provide,² both as a matter of local elections practice and in the opinion of the city attorney, the section has been interpreted as prohibiting write-in voting for mayor.

This lawsuit by two plaintiffs—Michael Edelstein, a would—be write-in candidate for mayor, and Richard Winger, a registered voter who supported his candidacy— was filed on the eve of the 1999 mayoral runoff election. In their complaint for declaratory relief, plaintiffs contended that section 13.102 burdened the unfettered right of electors to vote for the candidate of their choice by writing in his or her name on the ballot and therefore ran afoul of the free speech provision of the California Constitution. (Cal. Const., art. I, § 2, subd. (a).) Ballots issued to voters by Patricia Fado, the city's then director of elections, did not provide space for write-in candidates, the complaint alleged, and were treated as void if altered by any writings on them. Moreover, plaintiffs alleged, the defendant director refused to accept plaintiff Edelstein's write-in candidacy for mayor.

Complaining of the inability to run for the office of mayor as a write-in candidate, and the reciprocal inability of municipal electors to choose a mayoral candidate by writing in his or her name on the ballot, plaintiffs sought, unsuccessfully, emergency preelection injunctive relief from the superior court, the Court of Appeal, and this court prior to the December 1999 mayoral runoff election. Following the election, the San Francisco City and County Superior Court granted defendant's motion for judgment on the pleadings, and this appeal ensued.

The Court of Appeal reversed and remanded the cause for entry of a final judgment granting appropriate declaratory relief in favor of plaintiffs. Under the doctrine of stare decisis, the Court of Appeal felt compelled to do so. However, in light of Burdick, the Court of Appeal aptly suggested that "this case might serve as the vehicle for the California Supreme Court to examine the current vitality of Canaan, a task we are constrained from undertaking."

DISCUSSION

Plaintiffs' brief in this court obliquely raises the preliminary question whether this case is moot.

I. Mootness

On March 5, 2002, after this court granted review, San Francisco voters adopted Proposition A, a charter amendment replacing San Francisco's system of holding a runoff election when no candidate receives a majority of the votes in the general election with a system of instant runoff elections accomplished by ranked choice voting. The digest of Proposition A in the voter information pamphlet gave the following explanation of the instant runoff voting method: "With this method, each voter would have the opportunity to rank at least a first, second, and third choice among the candidates for each office. The votes would be counted in rounds. If one candidate received more than 50% of the first-choice votes in the first round, then that candidate would be elected. If no candidate received more than 50% of the first-choice votes, the candidate who received the fewest first-choice votes would be eliminated. All voters whose first choice was eliminated would have their vote transferred to their second-choice candidate. This process of transferring votes to the voter's next-choice candidate and eliminating candidates with the fewest votes would be repeated until one candidate received more than 50% of the votes." (S.F. Voter Information Guide, Primary Elec. (Mar. 5, 2002) p. 37.)³

In calling our attention to Proposition A, plaintiffs imply, although they do not expressly claim, that the question presented by this case is moot because San Francisco will no longer be holding what we may refer to as conventional runoff elections. However, as defendant points out, Proposition A, by its terms, provides for the possibility that San Francisco may hold a conventional runoff election in December 2002. In the event that no candidate for certain offices receives a majority in San Francisco's general election in November 2002, then San Francisco shall hold a conventional runoff election in December 2002, "[i]f the Director of Elections certifies to the Board of Supervisors and the Mayor no later than July 1, 2002 that the Department of Elections will not be ready to implement ranked-choice balloting in November 2002...." (S.F. Voter Information Guide, supra, text of Prop. A, p. 46.)

Moreover, defendant has furnished us with a copy of a letter, dated July 1, 2002, from Jon Arntz, Acting Director of the Department of...