A little-known provision of the law implementing California's top-two open primary system banned the counting of write-in votes on general election ballots.  The State Senate is now considering legislation that would prohibit write-in candidates and write-in voting at the general election for voter-nominated offices. The write-in ban is currently being challenged in court. 

How many write-in votes were cast in the July 12th Special General Election for US House in California's 36th Congressional District?  No one knows because they were never counted.  As reported here at CAIVN in July, the implementation of the top-two open primary system resulted in a contradiction between two sections of California's elections code, one which states that voters may cast write-in votes in all elections and another which states that some  write-in votes shall not be counted. 

Section 15340 states that every voter may "write the name of any candidate for public office . . . on the ballot of any election."  However, the law instituting the top two system placed a separate section on the books which prohibited the counting of write-in votes in general elections covered by the new primary process.  Section 8606 states: "A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted."  As such, section 8606 is unconstitutional.  Article 2, Sec. 2.5 of California Constitution requires that all votes must be counted: "A voter who cast a vote in an election in accordance with the laws of this State shall have that vote counted."

Today, the State Senate is scheduled to vote on AB 1413, a bill that would address this inconsistency by banning all write-in candidates from the general election ballot for voter-nominated offices and removing the space for write-in votes from the those ballots.  The bill under consideration in the Senate is substantially different from the one that was initially  proposed in the Assembly and passed through committee.  AB 1413 was introduced into the legislature on March 14th by the chair of the Assembly's Committee on Elections and Redistricting, Paul Fong. 

As originally written, the bill would have provided for minor changes to the state's campaign finance laws by amending aspects of the Political Reform Act of 1974.  In this form, it passed through the Assembly and to the State Senate floor and was on file to be considered in the Senate this week.  However, on the Friday before Labor Day, the bill was amended and effectively rewritten by Assembly Member Fong in a manner that significantly alters the state's Elections Code, addressing the inconsistency noted above, among others. 

Under the newly-amended and rewritten bill, section 15340 of the Elections Code, noted above, would prohibit write-in votes on the general election ballots for voter-nominated offices: "Except for a voter-nominated office at a general election, each voter is entitled to write on the ballot the name of any candidate for any public office."  In conjunction with this change, section 8606 of the Elections Code, noted above, would prohibit write-in candidates from running in the general election: "Notwithstanding any other provision of law, a person may not be a write-in candidate at the general election for a voter-nominated office."  The bill would further provide that the space for write-in votes be removed from all general election ballots for voter-nominated offices.   California election law has provided space for write-in candidates on general election ballots for partisan office since 1891, according to ballot access expert Richard Winger. 

Assemblyman Fong may well have been spurred to action by a pending lawsuit against a number of provisions within the Top Two Primary Act.  On August 24th, Chamness v. Bowen moved from the US District Court to the Ninth Circuit Court of Appeals.  A write-in candidate for the July 12th Special Election for CD 36 is seeking to intervene in the suit to challenge the disenfranchisement of write-in voters and write-in candidates. 

The standing plaintiffs in the suit are challenging the law's party preference ban – which prohibits candidates who are not affiliated with a party officially recognized by the state from stating their party preference on the ballot –, as well as provisions that prohibit candidates from describing themselves as 'Independent' on the ballot. 

Fong's amended bill systematically replaces the phrase "party preference" with the phrase "party affiliation" throughout the Elections Code, and explicitly repeals a provision that equates the term "Independent status" with "No Party Preference" (i.e. section 325).   The title descriptions of the bill seem to demonstrate the absurdity of the amendment process in a manner that borders on high satire.  The original title description of the bill read: "An act to amend Sections 81008, 83109, and 84211 of the Government Code, relating to the Political Reform Act of 1974."  It is now officially known as:

"An act to amend Sections 81008, 83109, and 84211 of the Government Code, relating to the Political Reform Act of 1974. An act to amend Sections 13, 300.5, 332.5, 334, 337, 359.5, 2026, 2150, 2151, 2152, 2154, 3006, 3007.5, 3205, 7100, 8002.5, 8025, 8040, 8041, 8062, 8068, 8081, 8106, 8121, 8124, 8141.5, 8148, 8300, 8600, 8606, 8803, 8805, 8807, 9083.5, 10704, 10706, 12104, 12108, 13102, 13105, 13107, 13206, 13207, 13212, 13230, 13300, 13302, 15340, 15402, 15560, and 19301 of, to repeal Sections 325, 7000, 9084.5, and 15451 of, to amend and renumber Section 6000a of, and to repeal Chapter 0.5 (commencing with Section 6000) of Part 1 of Division 6 of, the Elections Code, relating to elections."

UPDATE:  Ballot Access News is now reporting that the State Senate's Elections Committee has called for a hearing on the amended bill to be held before any vote.  The hearing may take place today or tomorrow.

Update II: According to Richard Winger, who has been following developments regarding this bill very closely, no hearing was held on the measure today, and the legislature has wisely decided to put off consideration of the bill until next year, thus allowing more time for hearings and public debate.