Edelstein v. Fado

• Decision Date: 30 October 2001
• Docket Number: No. A093007.,A093007.
• Citation: 93 Cal.App.4th 460,113 Cal.Rptr.2d 223
• Court: California Court of Appeals Court of Appeals
• Parties: Michael EDELSTEIN et al., Plaintiffs and Appellants, v. Patricia FADO, as Director etc., Defendant and Respondent.

113 Cal.Rptr.2d 223

93 Cal.App.4th 460

Michael EDELSTEIN et al., Plaintiffs and Appellants, v. Patricia FADO, as Director etc., Defendant and Respondent.

No. A093007.

Court of Appeal, First District, Division 4.

October 30, 2001.

Review Granted January 16, 2002.

J. Michael Schaefer, for Appellants.

Louise H. Renne, City Attorney, Thomas J. Owen, Randy Riddle, K. Scott Dickey, Deputy City Attorney, San Francisco, for Respondent.

SEPULVEDA, J.

At the general election held on November 6, 1973, City of San Francisco voters approved Proposition D, a measure amending the election provisions of the City's 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. (S.F.Charter, § 13.102.) Although the text of the measure does not expressly so provide,¹ as both a matter of local elections practice and in the opinion of the city attorney, Proposition D eliminated any right of a voter to "write in" on the ballot the name of a mayoral candidate, i.e., prohibited write-in voting for mayor.

This lawsuit by two plaintiffs—a would-be write-in candidate for mayor and a registered voter who supports his candidacy— was filed on the eve of the 1999 mayoral runoff election. Plaintiffs contend Proposition D burdens the unfettered right of electors to vote for candidates of their choice by writing in his or her name on the ballot and therefore runs afoul of the free speech provision of the California Constitution. (Cal. Const., art. I, § 2, subd. (a).) As will appear, whatever our own predilections on the subject (a question we need not face), we are constrained by existing California Supreme Court precedent to agree. Accordingly, we reverse the order of the superior court granting respondent's motion for judgment on the pleadings and remand the cause for entry of a final judgment granting appropriate declaratory relief in favor of plaintiffs.

BACKGROUND

Plaintiffs are Michael Edelstein and Richard Winger. Their complaint for declaratory relief alleged that at the mayoral runoff election held on December 14, 1999, Mr. Edelstein "offer[ed] himself as a write-in candidate for the Office of Mayor" of the City of San Francisco, and Mr. Winger was a qualified elector who sought to cast his vote for Mr. Edelstein by writing in his name on the runoff ballot. Ballots issued to voters by respondent Fado, the City's Director of Elections, do not provide space for write-in candidates, the complaint alleged, and are 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.

Contending 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, this court, and the California Supreme Court, prior to the December 1999 mayoral runoff election. Postelection proceedings, moreover, eventuated in an order by the San Francisco Superior Court granting defendant's motion for judgment on the pleading leading to this ensuing appeal by plaintiff. We reverse and, as explained below, invite further review by our high court of the constitutional ballot access issue under the free speech provision of the California Constitution.

ANALYSIS

I

Although the subject of write-in candidacies and its implications under the First Amendment to the federal Constitution and the free speech provision of the California Constitution is a close and divisive one (see section IV post), the decisional issue set before us by this appeal is straightforward enough. In Canaan v. Abdelnour (1985) 40 Cal.3d 703, 221 Cal. Rptr. 468, 710 P.2d 268 (Canaan), the California Supreme Court held, by a vote of six to one, that the City of San Diego had violated both the First Amendment and the free speech provision of the California Constitution when it enacted an ordinance barring write-in candidacies in its municipal elections, including runoff elections for mayor.² (Id. at p. 724, 221 Cal. Rptr. 468, 710 P.2d 268.)

The tenor of Canaan is unmistakable. Quoting from the high court's opinion almost at random: "There will always be voters whose views, interests or priorities are not in any way represented by the candidates appearing on the ballot. While candidates who do represent these voters' views may have little chance of success, it is important in a free society that political diversity be given expression." (Canaan, supra, 40 Cal.3d at p. 717, 221 Cal.Rptr. 468, 710 P.2d 268.) "`To restrict a voter to only those candidates whose names appear on the ballot arguably denies him any affirmative method of expressing his dissatisfaction with the listed candidates. He faces one choice: he must either select from a group of candidates, all of whom he deems unworthy, or not vote at all. [Citation.]' " (Ibid.) "As the Georgia Supreme Court has noted, `[a] refusal to count [an elector's] vote completely ignores it and is tantamount to a refusal to allow him to cast it.' [Citation.]" (Id. at p. 718, 221 Cal.Rptr. 468, 710 P.2d 268.) "[San Diego's] interest is also insufficient to justify the restriction imposed on the fundamental right to vote in the general election.... [¶] It is not the province of the city to deprive the electors of the right to vote for the candidate of their choice in a paternalistic effort to assure that one candidate receives a majority. It is also artificial to fashion a voting majority by forcing voters to cast their ballots for one of two candidates neither of whom they may deem to be worthy. The risk that a candidate who is not preferred by a majority of the voters will be elected is manifestly outweighed by the need to protect the fundamental right to vote." (Id. at p. 722, 221 Cal.Rptr. 468, 710 P.2d 268.)

Concluding, the Canaan court summed up: "A balancing of the rights of the candidates and voters against the interests asserted by respondents leads to the conclusion that San Diego's prohibition on write-in voting is unconstitutional. A ban on write-in voting burdens the right to be a candidate for public office and the fundamental right to vote for the candidate of one's choice." (Canaan, supra, 40 Cal.3d at p. 724, 221 Cal.Rptr. 468, 710 P.2d 268.)

II

Seven years after Canaan came down, the United States Supreme Court granted a petition for certiorari from a decision of the Ninth Circuit Court of Appeals upholding the State of Hawaii's absolute ban on write-in candidacies for public office. (Burdick v. Takushi (1992) 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (Burdick).) Unlike the California Supreme Court in Canaan, in Burdick, the federal high court upheld the prohibition against challenges by both voters and candidates founded on the First and Fourteenth Amendments, and affirmed. Relying on its prior ballot access precedents,³ including Anderson v. Celebrezze (1983) 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (on which the Canaan court had also relied, 40 Cal.3d at pp. 712-713, 221 Cal.Rptr. 468, 710 P.2d 268), Justice White's majority opinion reasoned that under the governing standard, "the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.... [W]hen a state election law provision imposes only `reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, `the State's important regulatory interests are generally sufficient to justify' the restrictions. [Citations.]" (Burdick, supra, 504 U.S. 428 at p. 434, 112 S.Ct. 2059, 119 L.Ed.2d 245.)

Assessing the state's elections scheme under the governing standard, the Burdick majority reasoned that "[a]lthough Hawaii makes no provision for write-in voting in its primary or general elections, the [state's] system ... provides for easy access to the ballot until the cutoff date for the filing of nominating petitions, two months before the primary. Consequently, any burden on voters' freedom of choice and association is borne only by those who fail to identify their candidate of choice until days before the primary.... We think .. . any burden imposed by Hawaii's write-in vote prohibition is a very limited one." (Burdick, supra, 504 U.S. at pp. 436-437, 112 S.Ct. 2059.) After concluding that "[t]he appropriate standard for evaluating a claim that a state law burdens the right to vote is set forth in Anderson [supra, 460 U.S. 780, 103 S.Ct. 1564]," the Burdick majority went on to observe that, given the ease of ballot access, Hawaii "need not establish a compelling interest to tip the constitutional scales in its direction." (Id. at pp. 438-439, 112 S.Ct. 2059.)

The state's prohibition on write-in voting "is a legitimate means of averting divisive sore-loser candidacies" (Burdick, supra, 504 U.S. at p. 439, 112 S.Ct. 2059) Justice White continued and, in light of this and related considerations, concluded that when a state's ballot access laws "pass constitutional muster as imposing only reasonable burdens on First and Fourteenth Amendment rights—as do Hawaii's election laws—a prohibition on write-in voting will be presumptively valid, since any burden on the right to vote for the candidate of one's choice will be light and normally will be counterbalanced by the very state interests supporting the ballot access scheme."⁴ (Id. at p. 441, 112 S.Ct. 2059 italics added.)

III

Through her counsel, the San Francisco City Attorney, the director tells us that in light of Burdick, supra, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245, Canaan has been undermined fatally and is no longer good law. We think the essence of the argument, as advanced in respondent's brief, is worth quoting. "...