Election officials have a duty to the public to ensure a fair election that is so strong, that "willful neglect" on their part is a crime. Elections Code Section 18002. Hold that thought.
I am working on an election case, (but will not mention the candidates or other merits of the case), here in Orange County. Part of the case focuses on a candidate’s ballot statement of qualifications. The statement of qualifications is the two hundred word statement that nonpartisan candidates are allowed to place in the voter pamphlet for distribution to the voters. State law prescribes the text a candidate can use in the ballot statement, which is intended to include information only about the candidate’s background and experience. The statement is subject to a 10-day public viewing period where the public may raise objections to the statement.
Because the candidate statement is intended to focus on the qualifications of the candidate only, for years, courts found it illegal for a candidate to mention the name of an opponent, even in friendly terms, in their statements, and courts would expunge such language in last minute ballot cases.
To strengthen the law further, last year the legislature explicitly amended Elections Code Section 13308 to read as follows:
"13308. In addition to the restrictions set forth in Section 13307,
any candidate’s statement submitted pursuant to Section 13307 shall
be limited to a recitation of the candidate’s own personal background
and qualifications, and shall not in any way make reference to other
candidates for that office or to another candidate’s qualifications,
character, or activities. The elections official shall not cause to
be printed or circulated any statement that the elections official
determines is not so limited or that includes any reference
prohibited by this section."
So, it is very clear that the Elections Code includes a black-letter prohibition on referencing another candidate in the same race in the Candidate Statement of Qualifications. It is equally clear that the Code places a duty on the election official responsible for printing ballots to not print any candidate statement that includes a reference to another candidate. And it is also clear that a "willful neglect" of this responsibility is a crime. Are you with me?
OK, here is my point: why is the county elections official allowing cities in Orange County to approve any ballot statements that reference a competing candidate? It has already happened, twice, in the City of Los Alamitos.
To implement the law and ensure it is enforced, the only thing the County registrar has to do is read the proposed ballot statements and cross-reference them against the list of candidates in the race, and send them back to the candidate, before the 10 day viewing period. However, in the case of Los Alamitos, that was apparently not done, and voters had to resort to private litigation to enforce the law, or lose their rights. But in the case of ballot statements, such a private enforcement action cannot be taken so lightly by the County. These actions are expensive, and if they are to be the only mechanism for the enforcement of election rules, then only the well-heeled or someone with a law degree will receive justice.
It seems to me that the law is very plain: the County Registrar of Voters must absolutely reject printing any candidate statement that contains a reference to a competing candidate. That means the Registrar has a "duty to inquire." Such illegal statements must be rejected almost immediately at the counter when submitted, whether the Registrar’s counter or the city clerk’s counter. And when a city clerk screws up, the County’s position statutorily must always be to enforce the law, even in a privately inspired litigation on the issue, because that is the law, and the Registrar’s sworn duty.