July 2, 2010 - Vote certification blocked

Paper: Press-Enterprise, The (Riverside, CA)
Title: Vote certification blocked
Date: July 2, 2010
Author: Duane W. Gang and Jim Miller, The Press-Enterprise

A Riverside County judge Thursday ordered the registrar of voters to delay certifying the June 8 election results until a decision is made on whether more than 12,500 late-arriving ballots can legally be counted.

The decision stems from a lawsuit filed Wednesday by three Moreno Valley voters and the Riverside County Democratic Party.

By law, ballots not in the possession of elections officials by the close of polls at 8 p.m. cannot be counted.

But the lawsuit contends the 12,563 vote-by-mail ballots arrived on time but were not picked up by elections officials due to a miscommunication with the U.S. Postal Service.

Not counting the ballots violates the voters' right to have their votes counted under the state constitution, the lawsuit contends.

"If voters are going to have faith in the system, their votes must be counted," said James Harrison, a San Leandro-based attorney representing the voters and county Democratic Party.

Registrar of Voters Barbara Dunmore had faced a July 6 deadline to send the final results to the secretary of state, unless a judge intervened. The secretary of state has until July 16 to certify the statewide results.

Now, Superior Court Judge Mac R. Fisher will hear arguments July 9 on whether elections officials can count and legally include the ballots in the final results.

The ballots have become a major element in the extremely close race for the Democratic nomination in the 40th state Senate District, which includes parts of Riverside and San Diego counties and all of Imperial County. Just 12 votes separate the top two candidates.

In addition, the uncounted ballots could factor in a race for the Riverside County Democratic Central Committee's 65th District, one of the reasons the party joined in the lawsuit.

Only 175 votes separate the sixth- and seventh-place finishers in the central committee contest. The top six win seats to the party's governing body. Betty McMillion, of Beaumont, the party chairwoman, currently is in seventh place.

40th Senate Seat

Juan Vargas, a former assemblyman, holds a slim lead over Assemblywoman Mary Salas in the 40th Senate District contest.

In the district's Riverside County portion, Salas leads Vargas by 106 votes out of 7,742 votes recorded there.

It's unknown how many of the uncounted Riverside County ballots are from voters eligible to vote in the 40th Senate District primary. Estimates on Thursday ranged from around 500 to more than 800.

Salas, D-Chula Vista, said Thursday that the ballots should be counted.

"I think it's really critical that the will of the people be done," she said. "To have that many people disenfranchised is a travesty of justice."

Jim Anderson, Vargas' campaign manager, said the campaign would go along with whatever the judge decides.

"From our campaign's perspective, we'd love for them to be counted," he said.

With each round of mail-in ballots counted, Anderson said the campaign felt it was gaining support.

Whoever emerges the primary victor is the favorite to win in November. Registered Democrats outnumber Republicans in the district by almost 14 percentage points.

The outcome also bears on Democratic politics in the state Senate.

Senate President Pro Tem Darrell Steinberg, D-Sacramento, backs Salas. A Vargas victory would increase the upper house's ranks of more conservative Democrats and possibly endanger Steinberg's post.

"All the votes should be counted," Steinberg said Thursday. "We're obviously following it closely. But once the votes have been counted and it's completed, I will welcome and look forward to working with whoever wins."

The Northern California firm handling the lawsuit, Remcho Johansen & Purcell, has done work for many Democratic candidates and causes over the years. Its clients have included Steinberg and Salas during the 2009-10 election cycle.

Harrison, the firm's lawyer in the suit, said he got involved after the local Democratic Party contacted the firm.

Former Assemblywoman Julie Bornstein, a member of the county Democratic central committee, said she spoke to the attorneys after learning of the uncounted ballots.

Bornstein, who endorsed Salas early in the race, said the party plans to raise money to pay for the legal bills.

"No one called and asked us if we wanted to file a lawsuit," Bornstein said. "Our motivation in the central committee is to make sure people know their vote counts."

Ballot mixup

Riverside County last week delayed certifying the results to provide time for a potential legal challenge.

Deputy County Counsel Dana Smith said in court Thursday that the county had no objection to the certification delay.

She said the county is working with Harrison to agree on the facts in the case.

The votes in question were held at a postal service processing facility in Moreno Valley. On Election Day, the registrar's office checked the Chicago Avenue post office in Riverside and a main distribution center in Redlands for ballots.

But they did not check the Moreno Valley site and previously said they have never checked there for ballots.

Both the Postal Service and the county have attributed the problem to a lack of communication. The ballots were sorted at the Moreno Valley site by 8:30 a.m. on Election Day, the county reported after meeting with postal service officials.

State Constitution

After the disputed 2000 Bush-Gore presidential election, California voters approved a constitutional amendment giving voters the right to have their votes counted.

Harrison said Wednesday that this case is tailor-made to test that provision of the state constitution. He said the Riverside County voters did everything proper and therefore should have their ballots counted.

Former Assemblyman John Longville, D-San Bernardino, who drafted the constitutional amendment while in the Legislature, agreed. The measure became Prop. 43 on the March 2002 ballot.

"I am eager to see if the legal process will recognize what we did in 2002," he said.

"Having the right to vote is meaningless if the government doesn't have to count your vote," Longville said. "It was due to a misunderstanding between two government agencies. I don't care which one is responsible. It doesn't matter. It wasn't the voter."

Edition: FULL
Section: News
Page: A1
Record Number: 6963217
(c) Copyright, 2010, The Press-Enterprise