Clark v. McCann ( 2016 )

Filed 12/24/15 Certified for Publication 1/11/16 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AURORA CLARK, D067918
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2015-00000121-
CU-PT-CTL)
JOHN MCCANN,
Defendant and Respondent;
MICHAEL VU, as Registrar of Voters, etc.,
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Affirmed.
Schwartz Semerdjian Cauley & Moot, John S. Moot and Owen M. Praskievicz for
Plaintiff and Appellant.
Bell, McAndrews & Hiltachk, Brian T. Hildreth, Charles H. Bell, Jr., and Paul T.
Gough for Defendant and Respondent.
Thomas E. Montgomery, County Counsel, and Timothy M. Barry, Chief Deputy
County Counsel, for Real Party in Interest and Respondent.
Aurora Clark (Contestant) appeals the trial court's denial of her election contest
challenging 12 uncounted ballots in a close race for city council. This appeal principally
concerns the handling of provisional ballots where the voter does not provide a current
residence address on the ballot envelope. Because we agree with the trial court that the
elections official did not abuse his discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are essentially undisputed. In November 2014, a run-off
election (the Election) was held for a seat on the Chula Vista City Council. In early
December 2014, Michael Vu, the San Diego County Registrar of Voters (the Registrar),
certified the official canvas results showing that John McCann was the winner with
18,448 votes—two more than Steve Padilla, who received 18,446 votes.
Contestant, a registered voter in Chula Vista, filed an election contest under
Elections Code section 16100, subdivisions (e), (f), and (g).1 Contestant initially
challenged 15 uncounted ballots. She alleged that each of the contested ballots
(provisional or mail) was cast by a properly registered voter in Chula Vista and should
have been counted. The parties engaged in discovery. By the time of trial, Contestant
challenged only 12 ballots, which were excluded from the Registrar's count for the
following reasons:
1 All further statutory references are to the Elections Code unless otherwise stated.
2
 Ten individuals listed a post office (P.O.) box, a business address, or a nonexistent
address as their residence address on a provisional ballot envelope. Sometimes the
nonexistent addresses bore similarities to actual residential addresses. For example, one
voter had recently moved and she wrote "1568 Park View Way" instead of her aunt's
actual address, "1658 View Park Way." None of the addresses written on the provisional
ballot envelopes were valid residential addresses. Otherwise, nine were registered voters
and eligible to vote in the Election. One individual (Ryan M.) had used a business
address on his 2014 voter registration form and as a result, was not registered to vote.
Ryan M. never provided a valid residential address on a new voter registration form, but
Contestant appears to contend that he should be deemed registered based on her argument
that a homeless person living in a city park can register to vote.
 Two individuals returned a vote-by-mail (VBM) ballot, but had never applied to
be VBM voters. They handed in a VBM ballot to a polling location, signed in their own
names. Evidence was not presented on exactly how they obtained VBM ballots, but they
had household members who were registered VBM voters. Otherwise, these individuals
were registered voters and eligible to vote in the Election.
Of the total ballots cast by Chula Vista voters in the Election, 64.5 percent were
VBM and 6.55 percent were provisional. Of the provisional ballots, 94.1 percent were
included in the official count. For the 155 provisional ballots not included in the official
count, the Registrar provided the following reasons:
Not registered to vote in San Diego County 121
3
Listed a P.O. box as their residence address on their
provisional ballot 5
Listed a business address as their residence address
on their provisional ballot 15
Listed a nonexistent address as their residence
address on their provisional ballot 7
Voted both a VBM ballot and a provisional ballot 4
Listed an out-of-county address as their residence 1
Failed to sign the provisional ballot envelope 1
Signature challenge was sustained 1
Accordingly, 28 provisional ballots were excluded on the grounds that the envelopes
listed an erroneous address (P.O. box, business, nonexistent, out of county) as the
residence address. During ballot recount proceedings, information concerning all of the
excluded provisional ballots from these categories had been reviewed or was available for
review by the parties' and each campaign's representatives. Because Contestant selected
only 10 of the ballots from these categories to include in her election contest, detailed
information concerning the noncontested voters' individual circumstances was not
admitted in evidence at trial.2 Contestant's counsel stipulated at trial that "if there are
similarly situated voters to the ones we have identified," then Contestant would agree
those ballots should be counted.
2 McCann introduced a declaration of Derrick W. Roach, who stated that (1) he
observed the ballot recount, and (2) certain provisional ballots not counted based on
"[non]verifiable residence address" were not selected by Contestant for inclusion in the
election contest. Contestant filed evidentiary objections to Roach's statements on hearsay
grounds, but the trial court did not rule on the objections. Even if Roach's declaration
contains hearsay statements, it was properly admitted to support that a recount occurred
and, as a general proposition, Contestant did not challenge all of the provisional ballots
within a category.
4
The trial court denied the election contest and entered judgment for McCann. In a
statement of decision, the court found that if it were to grant relief on the 10 provisional
ballots, an "unconstitutional disparity" would be created between the 10 voters and other
similarly situated voters. Furthermore, the court found that the Registrar acted within his
discretion in excluding provisional ballots that did not list a residence address showing
the individual's eligibility to vote in a Chula Vista election. The court cited sections 349
and 2000, which provide that an individual may only vote in the precinct where the voter
is registered and resides. The court stated that other counties' procedures in counting
provisional ballots did not establish that the Registrar's procedure was not rationally
related to the government's interest in preserving the integrity of the election process and
preventing voter fraud.
Finally, the court also found that the two VBM ballots were properly excluded
from the Registrar's count because those ballots were cast by individuals who were not
registered VBM voters, as required by mandatory provisions of the Elections Code.
Contestant timely appealed.
DISCUSSION
I. Guiding Principles
In reviewing the trial court's findings and conclusions, we are guided by the
following principles: " 'It is a primary principle of law as applied to election contests that
it is the duty of the court to validate the election if possible. That is to say, the election
must be held valid unless plainly illegal.' " (Wilks v. Mouton (1986) 42 Cal. 3d 400, 404
(Wilks).) The contestant has the burden of proving a defect in the election by clear and
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convincing evidence. (Ibid.) We are bound by the trial court's determination of the facts
except to the extent that they are not supported by substantial evidence. (Ibid.) The
evidence must be considered in the light most favorable to the prevailing party giving
such party the benefit of every reasonable inference, and resolving all conflicts in favor
of the judgment. (Id. at p. 408, fn. 7.)
To the extent this appeal involves a constitutional challenge to an election law or
regulation, we employ "a balancing test." (Field v. Bowen (2011) 199 Cal. App. 4th 346,
356.) We weigh the character and magnitude of the burden the regulation imposes on the
right to vote against the justification for that burden, and consider the extent to which the
state's concerns make the burden necessary. Regulations imposing severe burdens on
voters' rights must be narrowly tailored and advance a compelling state interest. Lesser
burdens, however, trigger less exacting review, and a state's important regulatory
interests typically justify reasonable, nondiscriminatory restrictions. (Timmons v. Twin
Cities Area New Party (1997) 520 U.S. 351, 358; Burdick v. Takushi (1992) 504 U.S.
428, 434.)
II. Contested Provisional Ballots
A
Contestant challenges the Registrar's exclusion of provisional voters' ballots that
did not list a valid residence address on the provisional ballot envelope. She argues that
an individual proves his or her residence during the voter registration process and,
thereafter, the Registrar must count the provisional ballot based only on signature
comparisons under section 14310, subdivision (c)(1). In essence, Contestant argues that
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the Registrar may not impose an "additional" requirement of a proper residence address
on the provisional ballot envelope for the vote to count.
As a general matter, a person is not entitled to vote in an election where he or she
does not reside. (§ 2000; Garrison v. Rourke (1948) 32 Cal. 2d 430, 441 [votes cast by
nonresidents of the precinct were illegal].) " 'Residence' " for voting purposes means a
person's domicile. (§ 349.) A person is not entitled to vote until he or she has properly
registered to vote by completing an affidavit of registration setting forth his or her
residence. (§§ 2000, 2102.) Thereafter, if voters move and wish to vote again, they are
directed by the Legislature to reregister and/or notify pertinent elections officials of their
change of address. (§ 2116 et seq.)
Under section 14311, voters who have moved within a county but not yet
reregistered may go to the polling place of their new residence on Election Day and vote
based on their new residence address. Such voters cast provisional ballots and are
"reregistered" using their new address for future elections. (§ 14311, subds. (a) & (b).)
In November 2014, the Registrar utilized these "fail-safe" provisions to reregister 387
Chula Vista voters at the new residence address written on their provisional ballot
envelopes—counting those ballots even though the voters had not otherwise notified the
Registrar of a change of address.
A provisional voter is "a voter claiming to be properly registered, but whose
qualification or entitlement to vote cannot be immediately established upon examination
of the index of registration for the precinct . . . ." (§ 14310.) As indicated above, a voter
may have recently moved. Or, provisional voters might be voting at a precinct other than
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their assigned precinct (and therefore their names will not be found on the unassigned
precinct's roster) or they could be VBM voters who have lost or spoiled their mail ballots.
They are "entitled to vote a provisional ballot" under section 14310. (Id., subd. (a).)
Once voted, the provisional ballot is sealed in a provisional ballot envelope, which "shall
be completed in the same manner as vote by mail envelopes." (Id., subd. (b), italics
added.) A VBM envelope must contain the registered voter's residence address.3
(§ 3011, subd. (a)(1)(3).) Next, the elections official compares the signatures on the
provisional envelope and the voter's registration, rejecting the ballot if the "signatures do
not compare" or "is not signed." (§ 14310, subd. (c)(1).) Finally, section 14310,
subdivision (c)(2) states: "Provisional ballots shall not be included in any semiofficial or
official canvass, except upon: (A) the elections official's establishing prior to the
completion of the official canvass, from the records in his or her office, the claimant's
right to vote . . . ." (Italics added.)
As to the 10 contested provisional ballots, in the spot on the provisional envelopes
designated for a "CURRENT Residence Address," under the warnings, "Your ballot may
NOT count if you do not completely fill out the information below" and "ALL
INFORMATION MUST BE ENTERED BELOW," and right above the line for
3 As the Registrar explained, VBM ballots are mailed directly to the voter's
residence (with instructions not to forward), and the voter is provided with a return
envelope that has the voter's residence address preprinted on it. (See generally § 3010,
subds. (a) & (b).) Consequently, the Registrar's office maintains a high degree of
confidence that VBM voters have received and cast appropriate ballots for elections they
are eligible to vote in. By its very nature, the same procedures are not available for
provisional voting.
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"PREVIOUS Residence Address," individuals had written a P.O. box, business address,
or nonexistent address. The Registrar testified that his office was unable to "fail-safe" or
reregister the voters for lack of a valid current residence address on the provisional ballot
envelope or anywhere else, such as the precinct's roster. The Registrar did not count
these ballots because the address provided was not a valid residential address establishing
the person's right to vote in a Chula Vista election and, at the same time, called into
question whether the person had moved.4 (See Hartman v. Kenyon (1991) 227
Cal. App. 3d 413, 423 [petition signers' decision to list their new addresses as their
" 'residence address' " was probative of their intent to make that new residence their legal
residence or domicile].)
Given the above circumstances, Contestant has not shown the Registrar's conduct
to be "plainly illegal." (Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430.) Nor
was the Registrar's conduct irrational. (See Mapstead v. Anchundo (1998) 63
Cal. App. 4th 246, 265-268 [discussing how residence address was critically tied to
entitlement to sign referendum petition and upholding invalidation of signers who
provided incomplete addresses].) Providing a current residence address is not
burdensome and confirms a voter's eligibility to vote in a specific election. A current
residence address is required of all voters regardless of how their votes are cast. (E.g.,
4 On appeal, McCann has requested we take judicial notice of a subsequent and
rejected legislative bill related to the Registrar's practice, analysis and legislative history
of the bill, and Chula Vista voter registration statistics. Contestant opposes. The
documents are irrelevant or judicial notice is unnecessary. McCann's request for judicial
notice is denied.
9
§§ 3011, subd. (a)(3) [VBM envelope shall contain residence address], 14216 [at polls,
voter shall audibly announce and write name and residence address].) It is rationally
related to the Registrar's responsibilities of providing appropriate ballots based on
residence and reregistering voters who have moved. For the Election, there were 23
ballot variations available to voters depending on where they resided in Chula Vista.
Furthermore, the record supports that the Registrar employs various efforts to
count provisional votes when possible, but was also justified in wishing to maintain an
orderly election process and prevent the dilution of votes by those who are not eligible or
registered to vote. The Registrar properly did not count numerous illegal provisional
votes, such as those cast by unregistered voters, and double votes, i.e., individuals who
attempted to cast both VBM and provisional ballots. Contestant's "signature comparison
only" rule is overly simplistic and does not address a number of recurring scenarios.
Thus, the Registrar may implement reasonable, uniform processes to fulfill his statutory
duties relating to processing and counting ballots.
The Registrar also correctly excluded Ryan M.'s ballot on the ground that he was
not registered to vote. Ryan M.'s registration form listed only a business address. As
discussed, ante, a person must be properly registered with a residence address in order to
vote. Section 349 provides that a person's residence is his or her domicile, which is
defined as that place in which the person's habitation is fixed, in which the person intends
to remain, and to which the person intends to return after temporary absences. (§ 349,
subds. (a) & (b).) Since Ryan M. never provided the Registrar with his place of
residence, Collier v. Menzel (1985) 176 Cal. App. 3d 24, 31 is entirely distinguishable. In
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Collier, appellants established they were residents of, and domiciled in, a public park.
(Ibid.) The Registrar did not err by excluding Ryan M.'s ballot from the official count.
Contestant points out that the Registrar did not comply with section 14310,
subdivision (a)(2) and (3), which requires that provisional voters be provided with
"written instructions regarding the process and procedures for casting the provisional
ballot, and a written affirmation regarding the voter's registration and eligibility to vote."
She argues that signed written affirmations would have obviated the need for the
Registrar to exclude ballots based on lack of residence address. The Registrar
acknowledges that the exact language required by these provisions was missing from the
contested provisional ballots.
Without doubt, section 14310, subdivision (a)(2) and (3) contain explicit
requirements for provisional ballots. Nevertheless, we are not persuaded that the absent
language changes the result in this case. For example, the record shows how voters at
any given time will sign affirmations under penalty of perjury that they "have not voted
previously in this election," yet the Registrar's office ultimately determines that they have
in fact voted twice and excludes one or both of their ballots. As the Registrar credibly
testified, some people do not appear to know whether they are properly registered and/or
eligible to vote in a certain election, and the Registrar's office uses voters' information to
help make that determination.
Contestant relies on Wilks, supra, 42 Cal.3d at page 403, for the proposition that
the Registrar was barred from considering residence addresses as a reason for excluding a
provisional voter's ballot. In Wilks, 16 absentee ballots were challenged on the grounds
11
that they were returned in envelopes where the residence address did not match the
address on the voter's affidavit of registration. (Id. at p. 413.) The Court summarily
stated: "We agree with the trial court that section 1015 requires only that the elections
official compare the signature on the identification envelope with the signature on the
affidavit of registration; a comparison of addresses is not required."5 (Ibid.) The Court
went on to discuss that there had been "no fraud, coercion or tampering in connection
with any of the challenged ballots." (Ibid.)
While Wilks concluded that an elections official must compare the signature on a
VBM ballot to the signature on a voter's affidavit of registration for purposes of deciding
whether the ballot should be counted, the case does not discuss whether an elections
official may request or use a voter's current residence address for the same or a different
purpose. (Wilks, supra, 42 Cal.3d at p. 413; see also Escalante v. City of Hermosa Beach
(1987) 195 Cal. App. 3d 1009, 1024-1025 [ballot properly rejected where signature on
ballot did not appear to match registration signature and residence address on the ballot
envelope differed from the residence address in the registrar's records].) Indeed, Wilks
and Escalante both implicitly accepted that the voter's residence address belonged on the
ballot envelope for some purpose. Neither case involved provisional ballots where the
written address was a P.O. box, business address, or nonexistent address. As we have
5 Section 1015 covered absentee ballots, which is the former iteration of current
section 3019 for VBM ballots. (§ 3019, Historical and Statutory Notes, former § 1015,
Stats. 1976, ch. 1275, § 18, amended Stats. 1982, ch. 428, § 13.6.)
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discussed, if a provisional voter wrote a valid residence address on his or her envelope in
November 2014, the ballot was counted by the Registrar.
Similarly, Contestant's reliance on Walters v. Weed (1988) 45 Cal. 3d 1, is
misplaced. In Walters, a number of students had lived and registered to vote on a
university campus. (Id. at p. 4.) When they returned to school in the autumn of 1983,
many were unable or chose not to live on campus, were living in temporary residences,
and had not obtained off-campus housing where they intended to remain, i.e., a new
domicile. (Ibid.) As a result, they voted in their former campus precincts. (Ibid.) Rather
than entirely disenfranchise these students, the Court held that they maintained their right
to vote on campus until and unless they acquired a new domicile. (Id. at pp. 13-14.)
Provisional voting was not available at the time of the election in Walters; if it had been
available, the issue of disenfranchising a group of students would likely not have arisen.
Here, the issue before the trial court was not to ascertain the provisional voters'
residences for voting purposes but, rather, whether the Registrar acted within his
discretion when he encountered provisional voters who did not provide a valid current
residence yet may have moved. Unlike in Walters where the students had no domicile,
all of the provisional voters in this case were domiciled somewhere. Contestant proposes
that the Registrar should have considered where the voters' families lived, where they
paid income taxes, and "any other evidence" of the voters' intent to remain at their
domicile, prior to excluding their ballots. Given the time frame for certifying election
results, volume of ballots, and administrative burden of processing them, Contestant's
proposal is unwieldy and impractical. For all the reasons we have discussed, the
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Registrar was not prohibited from considering a nonverifiable address as a reason for not
counting a provisional voter's ballot.
B
We briefly address Contestant's equal protection arguments. Citing Bush v. Gore
(2000) 531 U.S. 98, Contestant contends that the Registrar's conduct violated the Equal
Protection Clause because different counties of California are counting provisional votes
differently. The Registrar and McCann respond that equal protection in the voting
context refers to similarly situated voters within the same jurisdiction or electoral unit,
which would be Chula Vista. We agree with the Registrar and McCann.
The contested election was for a seat on the Chula Vista City Council. It is
undisputed that similarly situated voters in Chula Vista were subjected to the same
procedures and, conversely, not arbitrarily or disparately deprived of the right to vote for
a city councilmember. Even if the Orange County Registrar of Voters adopted a different
procedure for counting provisional ballots, Orange County voters did not vote in the
Chula Vista City Council election. The fact that the California Association of Clerks and
Election Officials apparently formed a subcommittee several years ago and drafted some
"discussion points" concerning provisional balloting issues, also does not establish a
violation of equal protection in this election contest. Based on the record before us,
Contestant's challenge to the election on equal protection grounds was properly denied.
(See Green v. City of Tucson (9th Cir. 2003) 340 F.3d 891, 900 [equal protection
principles concern qualified voters within the electoral unit, i.e., "the governmental unit
holding the election, be it a school district, a city or a state"].)
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The trial court properly denied Contestant's election contest as to the challenged
provisional ballots. We need not address the trial court's finding that an "unconstitutional
disparity" would be created among similarly situated Chula Vista voters if relief was
granted to Contestant.
III. Contested Vote-by-mail Ballots
Contestant also challenges the Registrar's exclusion of two VBM ballots,
contending that the Registrar elevates form over substance and/or did not provide its
rationale for not counting the two ballots. The Registrar responds that the two VBM
ballots were cast by individuals who were not registered as VBM voters, which is an
undisputed fact.
The two VBM ballots were illegal votes. Illegal votes include those "not entitled
to be counted because not cast in the manner provided by law." (Bush v. Head (1908)
154 Cal. 277, 281-282; Hardeman v. Thomas (1989) 208 Cal. App. 3d 153, 168.) By law,
a voter must apply to be a VBM voter in order to vote a VBM ballot. (§§ 3201, 3000 et
seq.) If a person is returning a household member's VBM ballot, he or she must be
properly designated to so. (§ 3017, subd. (a) ["a vote by mail voter who is unable to
return the ballot may designate his or her spouse, child, parent . . . as the vote by mail
voter to return the ballot to the elections official"].) These provisions are mandatory.
(Id., subd. (d).)
Contestant did not show that the two voters were registered VBM voters returning
their own ballots or designated to return household members' VBM ballots and, thus, the
ballots were correctly excluded. (See Stebbins v. Gonzales (1992) 3 Cal. App. 4th 1138,
15
1143-1144.) The trial court properly denied Contestant's election contest as to the
challenged VBM ballots.
DISPOSITION
The judgment is affirmed. McCann and the Registrar are entitled to recover costs
on appeal.
MCCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
16
Filed 1/11/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AURORA CLARK, D067918
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2015-00000121-
CU-PT-CTL)
JOHN MCCANN,
Defendant and Respondent;
MICHAEL VU, as Registrar of Voters, etc., ORDER CERTIFYING OPINION
FOR PUBLICATION
Real Party in Interest and Respondent.
THE COURT:
The opinion in this case filed December 24, 2015, was not certified for
publication. It appearing the opinion meets the standards for publication specified in
California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for
publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
MCCONNELL, P. J.
Copies to: All parties
2