Night of the Living Dims: the legal strategerie emerges.

As expected the registrar of voters denied attorney Fred Woocher's request to count the invalid write-in votes, which means his next step is to go to court to challenge the election result. Woocher declined to discuss his options but his only real relief will have to come in court.

His likely legal strategy to convince a court to count the invalid write-in votes will be to argue that the registrar was obligated to fix the invalid ballots where the voter's intent was clear so that they could be counted. Given the very clear definition of a legal write-in vote (fn.1) it's a tough argument to make, but there is a provision in the code that gives him a platform to stand on.

Elections Code section 15210 gives the registrar the right to fix "voted ballots ...[that] "are torn, bent, or otherwise defective ... so that every vote cast by the voter shall be counted by the automatic tabulating equipment." The statute even allows the registrar to make "... a true duplicate copy of the defective ballot ... following the intention of the voter insofar as it can be ascertained from the defective ballot."(fn. 2)

The registrar used her power under this statute to fix ballots and also to prepare duplicate ballots but did not use it to fix the invalid write-in ballots. The Frye camp's argument will be that the statute is broad enough to apply to the write-ins because those were "voted ballots" that were "otherwise defective." The problem remains that votes have to be voted properly to be counted and section 15210 doesn't change that.(fn. 3)

All 15210 does is to permit the registrar to fix properly voted ballots to ensure that they are counted by the machine. Such a ballot that is not torn or damaged but is "otherwise defective" might be one where the voter only filled in part of the bubble making it possible that the machine wouldn't count it. Since a legal vote only requires a mark in the bubble the vote is legal but defective. This kind of defective vote is different from a write-in vote where no attempt was made to make the appropriate mark next to the name. For that reason, the court might rule against Frye's argument.

-tdr

Footnotes:

fn. 1. Elections Code section 15342: "Any name written upon a ballot for a qualified write-in candidate, including a reasonable facsimile of the spelling of a name, shall be counted for the office, if it is written in the blank space provided and voted as specified below."

Elections Code section 15342, subdivision (a): "...no write-in vote shall be counted unless the voting space next to the write-in space is marked or slotted as directed in the voting instructions."

fn. 2 Elections Code section 15210: "In preparing the voted ballots for processing, any ballot that is torn, bent, or otherwise defective shall be corrected so that every vote cast by the voter shall be counted by the automatic tabulating equipment. If necessary, a true duplicate copy of the defective ballot shall be made and substituted therefor, following the intention of the voter insofar as it can be ascertained from the defective ballot. All duplicate ballots shall be clearly labeled 'duplicate,' and shall bear a serial number that shall be recorded on the damaged or defective ballot."

fn. 3 Elections Code section 15154, subdivision (a): "Any ballot that is not marked as provided by law or that is marked or signed by the voter so that it can be identified by others shall be rejected...."

Elections Code section 15154, subdivision (b): "The following ballot conditions shall not render a ballot invalid: (1) soiled or defaced. (2) Two or more impressions of the voting stamp or mark in one voting square."