Tough and Tenacious: Taking Voting Rights Issues to the Supreme Court?
TO BE ON THE BALLOT, OR NOT - THAT IS THE QUESTION!
by Terry Baum
I had won! I was the first small party candidate since 1968 to get enough write-in votes in the March primary to make it onto the November ballot. I was the official Green Candidate for U.S. Congress in San Francisco, running against the formidable Pelosi. I came home from my victory party and turned on the answering machine. I heard John Arntz, Director of Elections, tell me that he was throwing out 229 Green ballots where voters had written me in but failed to connect the arrow next to my name. The City Attorney had ruled they were not valid votes. Shades of Florida's hanging chads! I was no longer on the ballot.
Everyone was outraged at this blatant disregard for the will of the Green voters. We rallied, we held press conferences, we sat in at the Department of Elections and were arrested.
We ferociously lobbied the Board of Supervisors to postpone certifying all the election results until those 229 Green votes were included. The City Attorney did an end run around us, declaring that the Board only certified local elections. This wasn't true, but the Supervisors bought it. The Law is whatever those in power say it is, folks.
So we had to go to court. After a frantic search, we found an experienced election attorney who took the case for $1000.00. Many knowledgeable people said my case was a slam dunk. Once in court, voter intent was the standard by which election questions were resolved. And who could doubt that those 229 Greens had intended to vote for me? They wrote my name in!
We filed suit in Superior Court. The City Attorney succeeded in delaying our hearing for two months. Finally we had our day. Unfortunately, our lawyer was not a great litigator, so we weren't terribly shocked when we found out 10 days later that the judge had decided against us.
We then went to the Court of Appeals, asking for a Writ of Mandate, which would put my name on the ballot. The Appeals Court summarily dismissed our case, which means that they didn't even look at it.
We continued to the California Supreme Court, although that meant postponing still longer full-out campaigning. By this point, our attorney was only advising us. My campaign manager, Micheas Herman, felt strongly that we needed a rewritten, expanded brief to justify going further. Although untrained, Micheas has a natural legal mind. I'm an experienced playwright. So he and I wrote the new brief ourselves. For me this was an incredible education in the law.
We were very proud of our brief, but it didn't impress the Cal Supremes. Denied. So Baum vs. Arntz went to the Supreme Court of the U.S. - aka SCOTUS. At this point, a pro bono paralegal joined our quixotic struggle. The brief was totally rethought by Micheas and Howard, since now we were just dealing with Constitutional law.
SCOTUS accepts only five percent of the cases submitted to it, and Baum vs. Arntz is one of them this year. Unfortunately, the judges never came through with an injunction that would have put me on the ballot for the November election, so I remained a write-in candidate. Some time next year, SCOTUS will decide whether those 229 Greens had a right to have their votes counted. I received about 6,000 write-in votes for Congress - the count isn't final yet.
What could we have done differently? (1) I could have been my own lawyer. Others have done it and won. It turned out I had a lot of legal talent on my campaign. And I'm an experienced performer. I might have done a lot better at the Superior Court hearing than my lawyer did. At that point, we had a judge in the room with us and an audience filled with my supporters. A passionate performance might have saved the day. But then again, maybe not. (2) We could have dropped the legal struggle at any point and focused all of our energies on campaigning as a write-in. But since being on the ballot would make such a huge difference and we were so sure we were right, it always seemed to make sense to pursue ballot access. (3) We could have given up totally and dropped out. This never occurred to me. From the beginning, I felt a responsibility to all the Green voters who had written my name in, whether they connected the arrow or not. It was their will that I run for Congress. And so I did, to the best of my ability. No regrets.
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