The Right Coast

November 11, 2004
Florida in San Diego
By Mike Rappaport

While Florida and Ohio may have avoided election litigation this time, San Diego has not. In the mayoral race, a write in candidate received 35 percent of the vote, with the other two candidates receiving 34 and 31. That is pretty astounding. The incumbent mayor, who received 34 percent, was formerly a superior court judge, so "all 124 Superior Court judges" have been recused from the case. A retired judge from another county will here it.

What is the litigation about?

The election is being challenged by a local lawyer, John Howard. His suit targets discrepancies between the City Charter, which seems to prohibit write-ins in general elections, and the city's municipal code, which explicitly allows write-ins in primary and general elections. Howard is seeking a court order to halt the vote count, declare the election invalid and hold another election between only Murphy and Roberts.
For what it is worth, I am not a big fan of the write in candidate (but Tom may like her, since she is the favorite of surfers). But I wonder about the lawsuit. On its face, it seems plausible, but what about the timing?

Asked why he did not sue before the election, Howard said: "I'm a business and corporate litigator. I don't do political and election law . . . I'm apolitical. This isn't something that was high on my radar screen. "During a campaign, what happens is, people come in, you have conversations with your friends and somebody will say, 'Hey, did you hear her candidacy might not be legal?' It's not something I thought I needed to address."
I think we have too much litigation about elections these days. While legality is important, why not require that individuals bring these lawsuits before the election? That is something of a burden, but so is holding a new election. I wonder whether at one time equity required people not to sit on their hands, but to sue before a loss occurred. It doesn't sound like such a bad rule to me.