Can you spell Nakamura? San Diego School Board trustee Katherine Nakamura, who is attempting a write-in reelection bid, thinks it’s a doozy, and wants her voters to be able to use stickers with her name pre-printed on them.  Unfortunately for her, she lost in the primary election, and San Diego city rules say that write-in campaigns are not permitted.  Nakamura has brought her case before the California Superior Court, requesting that she be permitted to stage a write-in campaign and that voters be permitted to place stickers with her name on them on the ballot, rather than actually writing in her name.  The court has yet to decide whether any write-in votes will count, but it gave Nakamura the green light to seek the 200 signatures required to qualify as a write-in candidate.  The court did decide, though, that Nakamura can distribute stickers, and that voters can bring the stickers to the polling places, but that they may not paste them on the ballot.  Indeed, California law prohibits the use of stickers to express votes for write-in candidates.  Does this law make sense?  Is it constitutional?  This post seeks to analyze the arguments for and against such a law.

In 1926, the California Supreme Court decided that the placement of a sticker on a ballot is not “writing,” and as such is not a permissible way to vote for a write-in candidate.  In support of its position, the court explained the repercussions of allowing the use of stickers, quoting the Illinois Supreme Court: “[I]f [stickers] may be resorted to by one candidate, they may be by all, and the official ballot might become but little more than a convenient card upon which to paste private tickets printed and circulated in secret. The use of such tickets would revive the evils sought to be guarded against by ballot law.”

That is, the use of stickers may lead to fraud.  The primary victims of this sort of fraud would presumably be the illiterate.  The illiterate may be tricked into voting for someone who they do not intend to vote for.  Imagine the following scenario: Candidate A, who is running on a platform very unfriendly to the poor, gives Voter B, who is poor and illiterate, a sticker with A’s name on it, telling him to place the sticker on the ballot if he wishes to vote for Candidate C, whose campaign is centered around issues important to lower-income persons.  The risk of trickery is apparent, but given the much higher risk of a candidate being caught in this kind of fraud (after all, a candidate makes a gamble when he or she does this – perhaps the person is not illiterate and will notice and report the fraud), it seems unlikely.  Even so, it is a clearly rational basis for a legislature to act.

On the other hand, though, the illiterate could be harmed by a no-sticker rule.  Imagine the following scenario: Candidate A talks with Voter B and convinces him that he should vote for Candidate A.  No fraud has occurred.  However, if stickers are not allowed, what will B do when he gets into the voting booth?  Presumably, he will try his best to spell the name of Candidate A, but this is risky as well.  His intent may be unclear because of his poor spelling, and his vote may not count as a result.

There are at least two ways to solve this problem without actually allowing the use of stickers.  The first is what the California court did in this case – that is, allow voters to bring stickers into the voting booth, but not to adhere them to the ballot.  This solution allows the illiterate (or others who have difficulty with spelling) to spell properly the candidate’s name.  However, it is unclear at this time how this will work out.  I fear that many voters will be confused, will adhere the sticker to the ballot, and their votes will not count.  Because of this likely result, Nakamura may wish to change her plan and hand out leaflets or business cards, clearly explaining that they are for reference purposes when voters are in the voting booth.  While this solution addresses the problem of the confused illiterate voter, it does not necessarily solve the problem of the fraudulent campaigner discussed above.

Another solution has been employed by Alaska voting officials.  Alaska Elections Director Gail Fenumiai stated that voters intending to vote for potential write-in candidate Lisa Murkowski could not use stickers, but would not have to spell “Murkowski” correctly.  Fenumiai stated that while “Lisa” would be insufficient, all ballots from which voter intent is discernable would be counted.  Fenumiai suggested that “Lisa M.” may be enough to make the voter’s intent clear (although, the New York Times has reported that it would likely not be sufficient).  This “is the voter’s intent clear?” test certainly has its problems (after all, it is, to some extent, a subjective inquiry), but if applied liberally, it addresses some of the problems inherent in refusing the use of stickers.

While there are arguments to be made against the prohibition of stickers in write-in campaigns from a policy standpoint (indeed, a number of states allow stickers), such laws are almost certainly not unconstitutional.  Even so, it is nice to see policy-makers in California and Alaska finding a middle-ground.

Matthew E. Flyntz is a third-year student at William & Mary Law School.


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