County elections department says Johanna can file for a write-in candidacy – but the law probably says otherwise

Reported in today’s Times Standard.

The more I review the law the more I think they’re dead wrong. And still neither Crnich nor the Secretary of State is citing any law to support the position – and still no mention whatsoever of Elections Code section 8141, the runoff provision. The question is whether anybody will file a legal challenge.

Addendum: I don’t have time at the moment to research this, but in a thread below “Jane Doe” brought my attention back to a case I had written off as inapplicable. I’m having second thoughts.

In the published decision Bradley v Perrodin, (2003) 106 Cal. App. 4th 1153, the court cited Edelstein:

“A runoff election, as Perrodin correctly points out, is merely the second round of voting in a single election. (Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 174, 126 Cal.Rptr.2d 727, 56 P.3d 1029.)

It appears to be dicta, meaning that it’s a portion of an opinion which is not directly pertinent to the central point of the ruling. And it doesn’t cite the legal authority for the runoff (ie. whether it’s section 8141 or a Los Angeles municipal code provision). But as one poster below points out, the entire discussion of Bradley is state law.

I’m sorry, but I can’t shake the feeling that there’s a bit of laziness in play in the Secretary of State’s office.

If somebody has the resources and time, look up the LA Code to see if they have their own runoff provision. If not, then the courts have an opinion about the issue that differs from the state and local elections departments.

Second addendum: More from the Bradley decision:

A runoff election, as Perrodin correctly points out, is merely the second round of voting in a single election. ( Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 174 [126 Cal. Rptr. 2d 727, 56 P.3d 1029].) [***14] If one of the candidates receives a majority of the votes cast in the primary election, there is no need for a runoff election. Where no majority is achieved in the primary election, only those candidates who qualify in the primary election may participate in the runoff election. There is no new filing period for a runoff election.

If they’re talking about 8141, the election departments are dead wrong. Period.

Thanks to Jane Doe for making me take another look.

Third addendum: Kimberly Wear, who has been on the story for the Times Standard and worked overtime to clarify the issue over the past few days, has done the research for me and found that the LA Code does in fact have a charter which specifically eliminates write-ins for the ensuing election. Although Bradley didn’t specifically cite the local statute, it didn’t cite 8141 either. Here is subsection h of L.A. Code section 312.

(h) There shall be no write-in candidates allowed for General Municipal
Elections. The provisions of this section shall apply to write-in candidates in Special Elections unless otherwise provided by ordinance, except that there
shall be no write-in candidates allowed for Special Runoff Elections.

The argument is obvious, namely that if SF and LA thought they were covered by the state law they would not have bothered to provide against ensuing election write-ins in their own charters. The SF law was passed in 1973. I don’t know about the LA law. I do know that section 6122, the predecessor of section 8141 was also amended in 1973, but I don’t have easy access to that amendment. I also know that the state law which preceded 6122 had allowed for write-ins by specifying that that the candidates winning the primary shall be placed upon the ballot. That wording was removed in either 1961 or 1973. If the L.A. code preceded 1973 then it too may have been a response to the old code.

Again, the SOS has easy access to the legislative history for Section 8141. That would clarify one way or another.

Ms. Wear has gone out of her way here following my criticism earlier in the week, and I appreciate her effort.