On December 24, U.S. District Court Judge David O. Carter upheld California’s ban on write-in votes at the general election for Congress and partisan state office. Milonopoulos v Bowen, central district, 2:14cv-5973. The case had been filed by Theo Milonopoulos on July 30, 2014. He was a write-in candidate for U.S. House, 33rd District, in the June 2014 primary, and he only received one write-in vote. But he wanted to be a write-in candidate in November, so he filed a pro se lawsuit.
The decision was issued only two days after the hearing. Judge Carter said that because the U.S. Supreme Court upheld Hawaii’s ban on write-in votes in 1992 in Burdick v Takushi, therefore the California write-in ban is constitutional. Carter wrote that Hawaii’s general election choices are more restricted than California’s. This is untrue. In California, all congressional and partisan state office races are limited by law to only two candidates. Hawaii general election ballots give voters far more choices. In November 2014, there were nominees of four parties on the Hawaii ballot for Governor, three for U.S. Senate, three for U.S. House in the 2nd district, and up to four candidates in legislative races.
Carter also said that if California permitted write-in candidacies in November, someone who ran in the primary and lost might file as a write-in. This does not follow logically. California is free to permit write-in candidates in November but to refuse to count write-ins for candidates who had run in the primary, and several states follow that policy.
Nielsen Merksamer, the law firm that intervenes in all California election law lawsuits that have any bearing on the top-two primary, has forwarded a copy of the Milonopoulos decision to the California State Court of Appeals that is hearing Rubin v Bowen, the minor party challenge to the California top-two system. Rubin v Bowen will be heard in San Francisco on Thursday morning, January 15. Nielsen Merksamer has informed the three judges that are hearing Rubin v Bowen that they should take the Milonopoulos decision into account when they hear Rubin v Bowen. Nielsen Merksamer represents Californians for an Open Primary, which holds itself out to the public as a group that promotes voting rights. Neilsen Merksamer had intervened in the Milonopoulos lawsuit in support of the ban on write-in votes.