Night of the Living Dims: some call them "technicalities."

The rhetoric heated up a bit today as Dick Murphy claimed the mantle of legitimacy because he "got the most legal votes. That's the way it works in America." We can only hope that remains the case but we shall see.

Murphy also went on the offensive by saying "... illegal votes don't count, and everybody knew you had to fill in the bubble for the vote to count. The registrar of voters has said that repeatedly. The court upheld that. Even Donna Frye knew that."

Murphy makes an obvious point supported by the law but it's one that many people want to ignore because of how they feel.

For her part, Donna Frye really raised the rhetorical stakes by bringing up the racist methods from the past, like literacy tests, which were used to disenfranchise African-Americans. "Let's face it, this is not a literacy test. This is an expression of the intention of the voter. I feel frustrated, and I feel that a lot of people have been disenfranchised on a technicality."

What some call technicalities others know as laws.

The votes of citizens cast legally should be protected from the dilution that would occur if votes not cast legally were given equal weight. The election laws ought to matter.

As this blog has argued before, the secret of this country's stability is that we have legal and clear methods for the peaceful transfer of power from one government to the next, and everybody buys into the rules. If the rules need to be changed, the way to change them is the same way they were passed. Get the legislature to do it or pass an initiative.

Certainly, Frye and her supporters have a legal right to go to court to contest the election but they don't have a right to have a court rewrite the statute defining how a vote must legally be cast to achieve their result. And that's exactly what would have to happen.

The statute defining a legal write-in vote has two parts to it. One part does focus on the intention of the voter. But the intention of the voter is not the critical part. The intention of the voter is important in construing whether a write-in vote should be counted for a candidate. The statute says, "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.)

So far so good for Frye's votes. All a voter has to do is to write the name or something close to it in the right spot and the vote counts. The intent is what matters.

Unfortunately, the important part of the statute is the part "specified below," which says, "...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." (Elections Code, section 15342, subdivision (a).)

What the law gives with one hand, the law takes away with the other.

It turns out then, far from being a mere technicality, the requirement to "fill in the bubble" is the most important part of voting for a write-in candidate. A voter could have written Donna Frye's name in just about any manner imaginable and still have the vote counted as long as the proper mark was made next to the name. But a voter who perfectly spelled the name and didn't fill in the bubble, has not cast a valid vote. The intent of the voter only matters in counting legally cast votes. The intent of the voter makes absolutely no difference if the vote is not cast legally.

A stupid law perhaps, but the law nonetheless, and one the California Constitution requires be followed, at least until it gets changed. Our constitution doesn't guarantees that all votes will be counted, it only guarantees that all votes will be counted that are cast "in accordance with state law." (Article 2, section 2.5.)

Murphy's right. Only legal votes get counted and no amount of "feeling" frustrated or "feeling" that disenfranchisement has occurred will change that.