California still hasn’t finished counting all the write-in votes from the June 3 primary. However, most counties have finished. In the 15th State Senate, there was a spirited contest for the Democratic nomination by two competing write-in candidates. A registered Democrat, Dennis Morris, has over 1,400 write-ins. This total will grow, because Santa Clara County write-ins still haven’t been tallied (the district includes part or all of Santa Clara, Santa Cruz, Monterey, San Luis Obispo, and Santa Barbara Counties). The incumbent Republican State Senator in the 15th district, Abel Maldonado, has over 800 write-ins, and of course his total will also grow when Santa Clara County reports its write-ins.
No one appeared on the Democratic primary ballot in that race. In virtually all other states that allow write-ins in primaries, the state would acknowledge that Dennis Morris is the Democratic nominee, and his name would be printed on the November ballot. But California requires write-in candidates at the primary to not only defeat all their opponents, but to attain a write-in total that is at least 1% of the vote for that office at the last general election. Therefore, under section 8605, Morris can’t be the nominee because his write-in total almost certainly won’t reach 3,689.
A strong case can be made that section 8605, mandating that large number of write-ins, violates the State Constitution. That is because in November 2004, the voters added Prop. 60 to the Constitution. It says that a party “shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party’s candidates.” In 2006, another frustrated write-in candidate attempted to use Prop. 60 to attack section 8605. Sacramento Superior Court Judge Gail Ohanesian denied him injunctive relief. She said she didn’t think the intent of the legislature (which wrote Prop. 60) was to help write-in candidates. But case law is strong that legislative intent is irrelevant when the language is clear and unambiguous. Attorneys for the plaintiff in 2006 didn’t expect that ruling (which was made from the bench), so they weren’t completely prepared to rebut the judge at that moment, and no additional hearing was ever held in the case. Any lawsuit that Dennis Morris may bring against section 8605 this year will be better prepared. Morris is aware of the potential for a lawsuit, and he may sue.