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Monday, October 24, 2011

Ed Lee Ballot Scandal Spawns Difficult Legal Questions

Posted By on Mon, Oct 24, 2011 at 4:20 PM

The only law definitively broken by the pro-Ed Lee volunteers caught on film filling out and collecting ballots in Chinatown was the law of common decency. The introduction of a stencil-like device that allows people to expediently vote only for Lee and his chosen items introduces a literal aspect to the notion of "machine politics." This coarse and unseemly behavior hearkens to tales of Tammany Hall -- but at least the chislers of old were discreet enough to conduct their business behind closed doors.

While seven of Lee's mayoral opponents have fired off a letter to state and federal authorities requesting intervention, the missive is not particularly strongly worded. It notes that, if the aforementioned allegations are true then they may violate state and federal law. Asked what election laws, if any, have allegedly been violated, half a dozen legal experts gave SF Weekly roughly the same reply: Answering that question would require several hours of scouring the state and federal codes. This task, apparently, is being left for the recipients of the candidates' letter.

That being said, this is a potential political black eye for the mayor and yet another example of -- at the very best -- mortifying behavior from Lee's supporters. At worst, of course, multiple felonies have been committed. Filling in others' ballots is one thing. But collecting them is something else entirely -- and perhaps a far graver matter. "What if they saw a person didn't vote for Lee and threw that ballot away? That is a problem," says Alix Rosenthal, an attorney and former president of the city's Elections Commission. "Given the city's concern with the custody of ballots from the moment they're printed, this should raise the city's hackles."

The collection of the completed ballots, as caught on video and as recounted by eyewitnesses, is the most clearly problematic element of this budding scandal, which is awaiting its own "-gate" suffix. If you're not an absentee voter or the spouse, family member, or legal representative of one, it's hard to conceive of a scenario in which handling others' completed ballots is acceptable.

In San Francisco, Tweed never went out of style...
  • In San Francisco, Tweed never went out of style...
As far as filling out others' ballots, there are provisions on the books allowing third parties to aid the blind, disabled, infirm, and others. U.C. Irvine law professor Richard Hasen notes that this has led to numerous allegations of the line between assistance and voter fraud being crossed at nursing homes. For it to happen in broad daylight on a street corner, however, is a new one.

Determining whether laws were broken, then, requires gauging voters' intent. Bob Stern, formerly of the Center for Governmental Studies, says there'd be nothing particularly wrong with voters approaching the pro-Ed Lee booth and saying "I want to vote for Lee but I don't know how. Can you help me?" On the other hand, "you can't give the ballot to someone else and simply say 'Vote for me. I'll sign the envelope.'"

Since the people accused of wrongdoing are working for an independent expenditure committee not officially tied to Lee's campaign -- he's already decried them as "moronic" -- it's hard to envision a scenario in which the mayor faces any penalty other than horrible press. (Or perhaps not -- in its initial writeup of the incident, the Chronicle's headline claimed candidates' joint request for an investigation was a move "To Hurt Lee." This framed the call for a free and fair election as desperation tactics from political rivals trailing in the polls).

If the law is relatively unclear at present, Rosenthal predicts that may soon change. "What this will probably result in is a new [city] law prohibiting this kind of activity."

As Stern put it, "if there isn't a law against this, there should be."

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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