The ability to run as a write-in candidate for elected office has become more restricted through the years but, according to legal experts, the option to run as a write-in is not a protected right under U.S. or California law. In Long Beach, an upcoming ballot measure proposes eliminating write-in candidacies, a proposal that law professionals said has legal precedent. The Business Journal asked former councilmembers and election law experts to weigh in.
A proposed amendment to the Long Beach City Charter to extend the mayor’s and councilmembers’ term limits from two to three terms, and eliminate the write-in option, is on the November 6 ballot. The amendment, referred to as Measure BBB, is one of four proposed charter amendments appearing on the ballot.
Currently, the mayor and councilmembers can serve two terms, and are then eligible to run for subsequent terms via write-in. Removing the write-in option would disallow candidates from seeking re-election after three terms, whereas the current write-in policy allows re-election without limit.
Prohibiting write-in candidates from ballots is not unprecedented, as five states have instituted such a policy. Hawaii, South Dakota, Nevada, Louisiana and Oklahoma all currently prohibit any write-ins, including in general elections.
In the 1985 Canaan v. Abdelnour Supreme Court of California ruling, write-ins became a protected part of the ballot in order to prevent infringement on First Amendment rights of free speech. This case allowed for write-in candidates to run in every election in California.
Then, in 1992, the United States Supreme Court upheld Hawaii’s ban on write-ins in the case of Burdick v. Takushi. The ruling claimed that banning write-ins does not go against First Amendment rights for voters because it does not make it impossible to elect a preferred candidate. “The ban [in Hawaii] was a reasonable restriction on the right to vote because voters had other avenues to get their preferred candidates on the ballot,” University of Southern California Professor of Law Franita Tolson told the Business Journal. “Bans on write-in voting are generally constitutional.”
The Supreme Court of California then ruled similarly for banning write-ins in the 2002 case of Edelstein v. City and County of San Francisco. The case officially removed protection of write-ins in California, with the court deciding that it did not violate the free speech clause in the First Amendment. The court claimed that banning write-ins was a restriction that would not completely prevent voters from electing their candidate of choice.
“If it weren’t for the Edelstein case, they would have to permit write-ins for Congress, state office and the general election in California,” Richard Winger, election law expert and editor of Ballot Access News, stated. “We usually think voting rights in this country have improved over the centuries, but this is one area where we’re going backwards.”
The State of California already has a top-two primary system, which places the two candidates with the most votes on the ballot in the general election. There are about 20 states that prohibit write-ins solely for primary elections, but only California bans it for just general elections, according to Winger.
“It’s ironic that it’s California that has lost write-ins because we’ve [historically] elected more write-in candidates to Congress in the general election than any other state,” Winger said. “We’re the only state that’s had three write-in winners for Congress.” Winger thinks the elimination of write-ins in Long Beach municipal elections would go against public interest. “The right to vote includes the right of choice for whom to vote,” he said.
Former Long Beach Councilmember Jeff Kellogg, who served 12 years on the council, is not a strong proponent of term limits and believes the voters should decide how often a candidate is elected. Kellogg also thinks that the council’s decision to put the proposal on the ballot “was purely self-serving.” He stated, “Per all the political rhetoric that you’re hearing from city hall, this is simply to make it easier for the current members in there to run for a third term, if they so desire.”
Former Long Beach City Councilmember Rae Gabelich also pointed out the potential benefit the amendment would give to incumbents. Beverly O’Neill was Long Beach’s only elected mayor to serve a third term in 2002, which she achieved through a write-in candidacy. The ability to run for a third term on the ballot would make it easier for incumbents to be re-elected, Gabelich observed.
“I would have loved to have had a three-term option. . . . It would have allowed me to accomplish a lot of things I hadn’t quite finished that never got finished,” Gabelich said. She continued, “So I see the benefit in it, but what I don’t like – and I said this when [former Mayor] Bob Foster wanted to put it on [the ballot] back in 2007 for approval – was that it really shouldn’t be [applied to] the seated council.”
In 2007, then-Mayor Foster presented a similar grouping of amendments to the city charter on the ballot, including an amendment that would extend term limits to three, which voters did not pass. “I think the decision that was made by the voters in 2007 makes a lot of sense, because, if you’re doing your job as their representative or their mayor, then you are going to be re-elected [via write-in] . . .” Gabelich said.
The November ballot measure specifies “term” as a four-year service in office through a municipal primary or general election, excluding terms served as a write-in candidate as well as for candidates elected through mid-term special elections. Therefore, a current elected official who was voted into office as a write-in or in a mid-term special election will not have that term count toward the three-term limit after November.
“As far as I can tell, the only two who will benefit if this passes this go-around – which is why I think they did a special election – are [Councilmembers] Dee Andrews and Al Austin. So [Districts] 6 and 8 will benefit. Then, four years later, the others will benefit,” Gabelich said.
For example, under the proposal, Andrews’ 2016 election as a write-in candidate will not count toward his three-term limit, meaning that he could run on the ballot for a fourth term. Austin, currently in his second term, could also benefit from this measure, according to Gabelich, by running for a third term on the 2020 ballot.
Richard Hasen, specializing in elections and legislation as a professor of law at University of California, Irvine, speculated, “Voters will have to decide if this is a good policy choice, but I don’t think it’s the kind of choice that courts are going to take away from the voters . . . if that’s what they want.” If voters want the measure to pass, Hasen told the Business Journal he sees no legal problem with eliminating write-ins and extending term limits per current California laws.
Some residents have started a campaign against the proposal by forming the Long Beach Reform Coalition to spread awareness of what they consider to be a misleading measure. The coalition gained support from organizations in Long Beach such as Eastside Voice, Citizens About Responsible Planning (CARP), the Long Beach Taxpayers Association and People of Long Beach.
Corliss Lee, a member of CARP and Eastside Voice, stated that Measure BBB is misleading because it appears to strengthen term limits. “The goal [of this measure] is to weaken term limits,” she said. “In terms of beating an incumbent or even someone who has a lot of special interest money behind them, that’s really hard to do.” Lee challenged a council incumbent this past April and finished third in the primary.
The coalition’s leaders said the “NO on Measure BBB” campaign is an effort to increase community involvement in policymaking in order to have a completely transparent city government. The group held a town hall forum on Thursday, September 6, which allowed audiences both in the room and online to ask questions and create community discussion. The coalition’s members filed the official sample ballot arguments against Measure BBB and will soon file the official rebuttal against the measure. They claim the measure is deceptive and against public interest, according to a press statement.
On November 6, Long Beach voters will decide if the proposed amendment would be a benefit for the community or not.