January 2011 - Electoral Processpool

by Justice William W. Bedsworth

I’ve just been re-elected. Granted, it was a retention election, there was no opponent, no one’s managed to lose one of these in a quarter-century, and the ballot simply asked, “Shall William W. Bedsworth be retained as an associate justice of the Court of Appeal for the term prescribed by law?” without providing any option . . . but a win is a win. Champagne all around.

I’ll pause here to give this news a chance to soak in. After all, this is one of those watershed moments you’ll probably never be able to forget—like where you were when Lynyrd Skynyrd’s plane went down or what you were doing when you heard they were discontinuing the Clark bar.

You might also want to consider whether this would be a good time to resume that on-going debate with your spouse about moving to Colorado . . . or Canada. If you’ve been losing that one, you now have grounds for a writ of coram vobis: evidence has been discovered during the pendency of your appeal, evidence you could not have previously developed, that makes Canada—or for that matter Albania—look better.

Go ahead, think about it. I’ll wait. I’ve got twelve years; I’m not going anywhere.

Actually, you’ll be happy to hear, I have no intention of serving out my entire term. That was one of my campaign promises.(1) If I’m still here when my number next comes up, in 2022, it’ll be because unemployment has risen to 25% and inflation is so bad we’re using Necco wafers as a medium of exchange.

But for at least the next four years—at which time I anticipate a spirited bidding war between the Democrats and Republicans to get me either to stay on or to retire, depending on how they expect to do in the gubernatorial race—I’m afraid you’re stuck with me.

I’m pleased that my friends(2) have been impressed by the margin of my victory. With no opponent, I received 73.3% of the vote. Just call me Landslide Bedsworth.

But one of those friends couched the results in language I could appreciate as a sports fan, but which disturbed me somewhat, nonetheless. Willie Brown,(3) the center fielder on my high school baseball team, said, “Beds got 73% of the vote against nobody. Isn’t that like playing a football game with no other team on the field and winning 20–7?”

I must admit it’s a little disconcerting that 387,337 people, given their choice of me or nobody, chose nobody. I can just hear them saying, “No, if Bedsworth’s all you got, I think we’ll pass, thank you very much.”

What makes it even more ego-deflating is that those people were choosing to roll the dice on a new appellate appointee WITHOUT KNOWING WHO THE GOVERNOR DOING THE APPOINTING WOULD BE. “Brown, Whitman, Arnold Schwarzenegger, Hiram Johnson, we don’t care; we’ll take a pig in a poke. Really, a pig would be just fine. Or a horse or a cow or any barnyard animal you want to choose. Just no more Bedsworth.”

Fortunately for me, over a million people were so busy voting for my outstanding colleagues that they just kinda got stuck in “yes” mode. So all those phone calls you and the state’s other lawyers made to your in-laws begging them to vote “pig in a poke” were wasted. It was too easy to set the lever on “Yes” and just keep pulling it.

Contrast this with Alaska. In Alaska, folks were so concerned about who they sent to the Senate that 41% of them WROTE IN a name. Forty–one per cent! And the name most of them wrote in was Lisa Murkowski.

Without taking a position on that election, I gotta say it’s an impressive demonstration of Alaskans’ commitment to the electoral process that they would even attempt to write in Murkowski. I mean, if her name were Smith or Jones . . . or Bedsworth . . . something easy to spell, it would be one thing. But Murkowski?

You gotta really care about the outcome to try to write in Murkowski. Say what you will about Sarah Palin, she’s at least convinced people in Alaska to take a good look at their ballot before voting.

But the Murkowski vote creates an interesting problem for election officials. How close do you have to be to a correct spelling for them to put the vote into the Murkowski column?

Will Merkowski do? Murkoski? Mercosi? Mercer? Anything Polish? Where do you draw the line?

According to Slate Magazine, this problem cropped up a few years ago in Texas. My late father was a Texan, so I’ve known for a long time that using Texas as precedent for anything is pretty chancy. But the problem Texas had with this issue is indicative of how much more the Alaska voters had to go through than mine did.

In 2006, a woman named Shelley Sekula-Gibbs qualified as an official write-in candidate for Tom DeLay’s house seat. The voting machines were programmed to recognize a certain number of expected misspellings, but the voters’ imaginations outstripped the programmers’. According to Slate, “a bipartisan panel eventually came up with a 28–page list of acceptable aliases, including Kelly Segula Gibbs, Snelly Gibbr, Schikulla Gibbs, Sheila Gibbs, Shelly Schulla Gibbs, Shelly Gibkula, ShelleySkulaGibbssssss, and SSG.”(4)

Now pause for a moment to consider the list generated by the “bipartisan panel.”(5) Twenty–eight pages of names. Twenty–eight PAGES of names.

Let’s assume they put a big title on the first page: Compilation of Acceptable Variations on the Name Shelley Sekula-Gibbs Compiled by the Official Compilers of the Official Bipartisan Name Selection Committee Selected by the Equally Bipartisan Name Selection Committee for the Name Selection Committee for the Twenty–Second Congressional District of the Great State of Texas in the Election of . . . blah blah blah. So they spent, let’s say, ten lines at the top of page one just bloviating.

That leaves room for a single column of 15 names on the first page and 25 names on the next 27 pages. That’s . . . wait for it . . . 690 names. The voters came up with 690 names the bipartisan name choosers considered close enough for government work.(6)

Can you imagine going through a 28–page list to try to find some harebrained spelling and then—when it’s not there—having to discuss whether it should be added to the list? I would have renounced my citizenship before I would have agreed to serve on that panel.

But my absolute favorite is somewhat problematic for my editors here. I will warn you right now that if you’re not in the mood for gross vulgarity, you might do well to stop reading and re-direct your attention to your Cheerios. Because I’m going to quote some offensive material from the Texas case.

In Texas, the bipartisan name choosers agreed that a vote cast for “Shelley Draculacunt Gibs” was acceptable “because the intent of the voter was deemed obvious.”(7)

Really? They gave Shelley credit for that one? I would have thought the epithet made it clear the voter did not want Shelley. Doesn’t seem to my mind to be a big fan of Shelley’s.

But, as the commission doubtless concluded, maybe the voter was just expressing his opinion about what kind of person he wanted to send to Washington.(8) After all, the district had voted for Tom DeLay for 22 years.

Just goes to show how difficult the electoral process can be if you have more than one candidate. Gets unruly and frankly, a little obscene sometimes. Personally I like the California retention election process much better.

But that’s just me. You may have a different opinion when you contemplate me ruling on your appeal.

(1) All right, I suppose if you want to be technical about it, no one actually cared enough to ask. But if they had, I would have promised.
(2) Both of them.
(3) No, not THAT Willie Brown; he probably would have voted against me on the ground I don’t own a fedora.
(4) I love the last one. A single keystroke error and someone could have chosen to replace Tom DeLay with Monosodium Glutamate—a decision whose wisdom could be debated long into the night.
(5) But do not, under any circumstances, give any thought to the Byzantine process that doubtless led to the formation of the “bipartisan panel” and all the wrangling, weeping, and gnashing of teeth that must have accompanied its selection. Your head will explode.
(6) Which is, after all, what elections are.
(7) Yeah, I know it’s uncouth and vulgar. It’s not a word any of us uses, and my editor and I spent awhile trying to figure out whether to use it. But I figured I owed you the actual word because if you’re gonna have that Colorado-or-Canada-or-someplace-else debate, you oughta know that Texas should not be on the table. Under any circumstances.
(8) I used male pronouns because I’m confident no woman—in the history of the planet—has ever used that term.

William W. Bedworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.