Opinion
Review Granted Sept. 24, 1992.
Review Granted Previously published at: 13 Cal.App.4th 473, 7 Cal.App.4th 1852
Opinions on pages 162-518 omitted.
REVIEWS GRANTED [Copyrighted Material Omitted] COUNSEL
OPINION
BEST, Presiding Justice.
Appellants, defendants in the election contest proceedings below, appeal from the judgment annulling and setting aside the results of consolidated elections for school board positions in five school districts. They claim the trial court erroneously concluded 930 ballots were cast in violation of election laws and are therefore illegal and not subject to being counted. Even assuming the ballots were illegally cast, appellants claim the appropriate remedy was for the trial court to apportion the illegal votes among all of the candidates and to confirm the elections after apportionment.
We agree with the trial court insofar as it concludes 930 ballots were illegally cast. We conclude, however, that the trial court was without authority, under the circumstances, to annul and set aside the elections because of the illegal votes.
[9 Cal.Rptr.2d 867] UNDERLYING FACTS
The Election
On November 5, 1991, consolidated elections were held in Fresno County for school board positions in Orange Center Elementary School District, Pacific Union Elementary School District, West Fresno Elementary School District, West Park Elementary School District and Washington Union High School District. Two positions were open on the Washington Union High School District Board; three positions were open on the Orange Center Elementary School District Board; two positions were open on the Pacific Union Elementary School District Board; three positions were open on the West Fresno Elementary School District Board; and two positions were open on the West Park Elementary School District Board.
The four elementary schools are " feeder schools" for Washington Union High School. Therefore, voters in each elementary school district received a ballot which allowed them to vote for candidates for openings on their respective elementary school district board as well as for the Washington Union High School District Board. This meant there were four different " styles" of ballots in the consolidated elections. The number of potential votes cast on each ballot depended upon in which elementary school district the voter resided.
On November 19, 1991, the results of the election were certified as follows:
In July 1991, the Fresno Chapter of the Black American Political Association of California (BAPAC) launched its " Voter Education Project" (VEP). The project was described by Mel Sanders, President of the Fresno Chapter of BAPAC, in his October 1991 report to the statewide BAPAC conference in Sacramento.
Sanders received the highest number of votes in the election for the Washington Union High School District. Mary Bess, also a BAPAC member, received the second highest number of votes in that contest. Hank Hendrix and Oscar Robinson received the first and second highest number of votes in the contest for the West Fresno Elementary School District Board. They, too, were members of BAPAC. All four members are named in the election contest as defendants.
Unless otherwise noted, all further references shall be to the Elections Code.
" This project has targeted 13 seats of several of the smaller school district boards that serve the southwest urban area of metropolitan Fresno. The central strategy in the election involves a highly selective process of both voter registration and absentee ballot applications. With some $10,000 in cash, equipment and materials, we are projecting a landslide in seven of the elections and comfortable wins in the others."
Frank Revis, a BAPAC member, was appointed Director of the VEP. He recruited his family, BAPAC members and families as well as nonmembers as volunteers. Some of the VEP workers were paid.
The project utilized three different addresses. Two of the addresses, 2017 Tuolumne and 9854 South Chestnut, were BAPAC addresses. The third address, 705 Mayer, was the home of Revis and the headquarters of the VEP.
The process worked as follows: A VEP solicitor would visit the homes of registered and unregistered voters to ask them to sign a registration affidavit and an application for an absentee voter ballot. The absentee voter application stated at the bottom that it was provided by BAPAC and gave the Tuolumne Street address. The potential voter was told the executed documents would be returned to the elections office by BAPAC.
The third paragraph of the absentee ballot application requested the applicant to designate the address to which the ballot was to be mailed. In the majority of cases, BAPAC filled in the address of BAPAC as the address to which the ballot was to be mailed. The potential voter was told their ballot would be hand-delivered to them by BAPAC upon BAPAC receiving the ballot from the elections office.
When BAPAC received absentee ballots from the elections office, they would be given to a VEP worker, BAPAC member or even a candidate for delivery to the voter. If the voter was not at home when delivery was attempted, a notice was left at the door asking the voter to call BAPAC so that BAPAC could deliver the ballot as soon as possible.
When the ballot was delivered, the voter was encouraged to vote in the presence of the VEP solicitor. In some instances, information regarding the candidates or issues was offered. Upon casting his or her vote, the voter would place the ballot in the envelope, sign and date the envelope and hand it to the VEP solicitor who had delivered the ballot. The ballot was then returned to BAPAC headquarters to be mailed to the elections office.
Prior to the election, in either late August or early September, Revis met with the Fresno County Clerk, Susan Anderson, and the Fresno County Elections Manager, Norma Logan. Both officials expressed concern that it appeared many of the absentee voter applications submitted by BAPAC did not comply with election laws. Specifically, they advised Revis that Elections Code section 1006 required that the applicant " personally affix" the address to which the ballot was to be sent. Revis assured them the applicant had consented to have the address of BAPAC filled in by [9 Cal.Rptr.2d 869] a VEP worker. Neither official expressed an opinion as to whether such consent was sufficient to satisfy section 1006. Revis did nothing to change VEP procedures to address the concerns of Anderson and Logan.
All statutory references are to the Elections Code unless otherwise indicated.
Retired Presiding Justice, Fifth District Court of Appeal. Assigned by the Chairman of the Judicial Council.
At this meeting Revis was also questioned regarding BAPAC'S interest in the campaign. Revis assured Anderson and Logan that BAPAC was not supporting specific candidates although he indicated BAPAC was dissatisfied with the incumbents. He insisted the project was merely a drive to get out the vote. In response to Logan's warning that no candidate should have anything to do with absentee balloting, Revis assured them no candidate would have access to the ballots.
Despite these assurances, absentee ballots were given to Mel Sanders, Oscar Robinson, Linda Andrews, Tim Sanders, Samuel Hearnes, Mary Bess, Lawrence Cato, Tony Taylor, Steve Franklin, Carrie Schoals and Rosemary Garcia for delivery to voters. All of the foregoing people were candidates, many were members of BAPAC.
The elections department received 1,023 voted absentee ballots from BAPAC; 93 of these ballots were disqualified by clerk's challenge. Based upon the advice of county counsel and the office of the Secretary of State, the remaining 930 absentee ballots were removed from their envelopes and counted. It is now impossible to distinguish these 930 absentee ballots from the remaining ballots cast in the consolidated election.
The Elections Contest
On December 19, 1991, respondents, unsuccessful candidates in the consolidated elections, filed suit contesting the election results. The complaint alleged: (1) appellants had given or offered bribes to electors; (2) appellants had committed offenses against the elective franchise; and (3) illegal votes were cast sufficient to change the results of the elections.
During five days of trial, the trial court heard evidence of fraud and tampering as well as evidence the nine hundred thirty ballots received from BAPAC and counted by the elections department were cast in violation of sections 1006 and 1013 which set forth rules and procedures for absentee voting.
The trial court found there had been fraud and tampering with respect to a few ballots. However, these votes had not been counted. It also made findings regarding other irregularities. However, the judgment was based upon the finding that the 930 absentee ballots were cast in violation of sections 1006 and 1013. Thus, the ballots were illegal and could not be counted.
The findings of fact and conclusions of law are attached to this opinion as appendix A.
The trial court concluded that although it could not " determine with certainty how the illegal votes were cast," it was convinced " the great majority" were cast for appellants and that these illegal votes were " sufficient to affect the election of many of the [appellants]."
Pursuant to section 20086, the court annulled the election results and ordered new elections to be held " forthwith."
Section 20086 states:
ISSUES
Two main issues must be resolved in this appeal. First, does the evidence support the trial court's finding that the 930 absentee ballots received from BAPAC are illegal? Second, is the finding of illegality sufficient to support the decision to annul and set aside the election? [9 Cal.Rptr.2d 870] DISCUSSION
I. Standard of Review
Illegal votes are votes which have not been cast in the manner provided by law. (Bush v. Head (1908) 154 Cal. 277, 281-282, 97 P. 512.) This includes votes cast by persons who received their absentee ballots in an improper manner, i.e., in violation of election laws pertaining to absentee balloting. (Hardeman v. Thomas (1989) 208 Cal.App.3d 153, 168, 256 Cal.Rptr. 158.)
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. [Citations.] Accordingly, a distinction has been developed between mandatory and directory provisions in elections laws; a violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not render the election void if there is a substantial observance of the law and no showing that the result of the election has been changed or the rights of the voters injuriously affected by the deviation. [Citations.]’ (Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430 [197 P. 74].) Even mandatory provisions must be liberally construed to avoid thwarting the fair expression of popular will. [Citations.] In addition, there is an express legislative policy requiring liberal construction of absentee ballot provisions in favor of the absent voter. (Elec.Code, § 1001.) The contestant has the burden of proving the defect in the election by clear and convincing evidence. [Citations.] We are, of course, bound by the trial court's determination of the facts except to the extent that they are not supported by substantial evidence." (Wilks v. Mouton (1986) 42 Cal.3d 400, 404, fn. omitted, 229 Cal.Rptr. 1, 722 P.2d 187.)
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, 229 Cal.Rptr. 1, 722 P.2d 187.)
This court has been provided with a very limited record on appeal. The reporter's transcript contains selected excerpts from the testimony of three out of approximately twenty-five witnesses. We have only a few of what appears to be approximately 60 exhibits. Despite this restricted view of the case below, as we shall discuss, substantial evidence supports the trial court's factual findings regarding the illegal ballots. The more troubling question is whether the findings of fact and conclusions of law justify the remedy given the statutory limits on the authority to annul and set aside an election based upon illegal votes.
Respondents' motion to dismiss based upon appellants' untimely designation of the record on appeal is denied.
II. Violation of Section 1013
Section 1013 provides:
" All absentee ballots cast under the provisions of this division shall be voted on or before the day of the election. After marking the ballot, the absent voter shall either: (1) return the ballot by mail or in person to the official from whom it came or (2) return the ballot in person to any member of a precinct board at any polling place within the jurisdiction. However, an absent voter who, because of illness or other physical disability, is unable to return the ballot, may designate his or her spouse, child, parent, grandparent, grandchild, brother, or sister to return the ballot to the official from whom it came or to the precinct board at any polling place within the jurisdiction. The ballot must, however, [9 Cal.Rptr.2d 871] be received by either the official from whom it came or the precinct board before the close of the polls on election day.
" The official shall establish procedures to insure the secrecy of any ballot returned to a precinct polling place.
" The provisions of this section are mandatory, not directory, and no ballot shall be counted if it is not delivered in compliance with this section. " (Emphasis added; last paragraph added by Stats.1987, ch. 22, § 2, eff. May 18, 1987.)
The 930 absentee ballots at issue in this case were collected from the absentee voters by BAPAC and returned to the elections department by BAPAC. Appellants make no claim to the contrary.
They contend there has been no violation of section 1013 because BAPAC was given permission by the 930 absentee voters to return the ballots on behalf of the voters. Appellants attempt to read into section 1013 an exception which does not exist.
The language of the statute is clear and unambiguous. The 930 ballots delivered in violation of section 1013 are illegal and cannot be counted.
III. Violation of Section 1006
An application for an absentee ballot must provide a space for the address to which the ballot is to be sent. (§ 1006, subd. (a)(2).) Section 1006, subdivision (b)(1) states this information " shall be personally affixed by the voter." Section 1006, subdivision (b)(2) prohibits an applicant from entering the address of a political campaign headquarters as the address to which the absentee ballot is to be sent.
Respondents' request that this court take judicial notice of the legislative history pertaining to the 1990 amendments to section 1006 is granted.
The trial court found in the majority of cases, the VEP " solicitor" filled in the information regarding the address to which the absentee ballot was to be sent and that the address provided was that of BAPAC. Appellants do not challenge the sufficiency of the evidence to support this finding.
The trial court also found BAPAC was engaged in a political campaign through the VEP to defeat the incumbents in the elections. Therefore, entering BAPAC's address as the address to which the ballot was to be sent violated section 1006, subdivision (b)(2). Appellants contend this finding is not supported by the evidence.
Appellants ignore the statements of the president of the Fresno chapter of BAPAC to the statewide convention. The VEP was described as the strategy by which BAPAC would achieve victory in the school district elections. This evidence is sufficient to support the conclusion that section 1006, subdivision (b)(2) was violated.
Appellants challenge the legal significance of the trial court's conclusion that section 1006 was violated. They claim section 1006 is merely directory. Therefore, the fact that the name and address to which the ballot was to be sent was filled in by BAPAC does not render the ballots illegal. Unlike section 1013, which expressly states its provisions are mandatory, section 1006 is silent in this regard.
According to appellants, absentee ballot applicants gave VEP workers permission to fill in the address of BAPAC as the address to which the ballots were to be sent. They cite the testimony of Revis, the VEP director, in which he broadly described what the VEP workers were told during their training to register voters. Appellants cite no evidence that permission was actually solicited or given by even one voter.
Where the Legislature is silent regarding its intent in this regard, the court looks to the statutory scheme as a whole, the nature and character of the act to be done, the consequences of doing or failing to do the act and whether the public purpose to be achieved would best be served if the provision were mandatory or directory. (Morris v. County of Marin (1977) 18 Cal.3d 901, 910, 136 Cal.Rptr. 251, 559 P.2d 606.) The obvious purpose of the statutes at issue is to prevent persons with partisan interests from having access to the absentee ballot and thereby protecting the integrity of the process of absentee balloting. In 1990 the Legislature increased the penalty for violating the rules regarding the distribution of applications for absentee voter ballots from an infraction to a misdemeanor. (§ 29505.) Thereafter, knowingly violating these rules subjects the violator to six months in county jail or a fine of up to $1,000, or both, for each offense. Regardless of what effect a violation of these provisions may have upon the results of a contested election, the personal penal consequences are not insignificant.
[9 Cal.Rptr.2d 872] We need not decide whether section 1006 is mandatory or directory. It has already been determined 930 ballots were cast in violation of the mandatory provisions of section 1013. It is unnecessary to determine whether the ballots were also illegal because of violations of section 1006.
IV. The Remedy
This is the most troubling aspect of the case before us. There is no question but that 930 ballots are illegal, and, under the law, cannot be counted. The question is whether the election can be nullified and set aside because of the illegal ballots.
Section 20086 authorizes the trial court to pronounce judgment in an election contest either confirming or annulling and setting aside the election. This authority is restricted, however, by section 20024 which provides:
" An election shall not be set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person."
Under section 20024, it must appear not only that illegal votes were sufficient in number to account for the result but also that illegal votes in fact determined the result. (Canales v. City of Alviso (1970) 3 Cal.3d 118, 126, 89 Cal.Rptr. 601, 474 P.2d 417.) It cannot be presumed that all illegal votes were cast for the winner. (Russell v. McDowell (1890) 83 Cal. 70, 73, 23 P. 183; Singletary v. Kelley (1966) 242 Cal.App.2d 611, 612, 51 Cal.Rptr. 682.) In order to annul and set aside the election, it must be shown the illegal votes were cast for the winner. (Russell v. McDowell, supra, 83 Cal. at p. 73, 23 P. 183.)
The parties did not discuss the application of section 20024 in their opening briefs on appeal. At oral argument, however, they conceded section 20024 is the controlling statute when, as in this case, the sole basis for the decision to annul and set aside the election results is the finding that illegal votes were cast. The parties were given an opportunity after oral argument to submit supplemental briefing to address the question of whether the remedy imposed by the court comports with section 20024. (Gov.Code, § 68081.)
This election contest presents a particularly confusing situation in that it does not challenge the result of a single election. This contest challenges the results in 5 different district elections involving 28 candidates for 12 separate school board seats. The elections were consolidated for the purpose of voting on November 5, 1991. However, the five elections cannot be consolidated for the purpose of determining whether the results can be annulled and set aside because of illegal votes. Each district election must individually be considered in the light of section 20024.
The circumstances are further complicated by the nature of the balloting process used in the consolidated election. Depending upon in which district a ballot was cast, the absentee voter may have voted for as few as one candidate or as many as five candidates. Moreover, once the absentee ballots were removed from their envelopes, the illegal absentee ballots were indistinguishable from the legal ballots cast in the election. Thus, it is impossible to determine how many illegal votes were cast, or for whom the illegal votes were cast.
Nevertheless, the results of these five elections cannot be set aside unless it is shown that in each election the number of illegal votes given to the winners, if taken away, would result in another candidate [9 Cal.Rptr.2d 873] receiving the highest number of legal votes. (Canales v. City of Alviso, supra, 3 Cal.3d at p. 126, 89 Cal.Rptr. 601, 474 P.2d 417; § 20024.)
The impossibility of the task is manifest. The trial court recognized as much when it acknowledged, " This court cannot determine with certainty how the illegal ballots were cast. Thus, it cannot deduct the illegal votes directly from a defendant to see if he or she received a majority of the lawful votes for the office." Yet this is precisely what is required by section 20024.
Undaunted, the trial court attempted to fashion a remedy to fit the circumstances. Based upon its finding that many of the defendants participated in the plan to manipulate the absentee ballot process, the court concluded " the great majority of the counted BAPAC ballots were voted for Defendants." Finally, the court found " the illegal votes cast were sufficient to affect the election of many of the Defendants."
The foregoing findings are insufficient under section 20024. The court's inability to attribute illegal votes to a declared winner as required by section 20024 means the election of the declared winner must be affirmed.
The finding that the election of " many of the defendants" was affected by the illegality necessarily means the election of some of the defendants may have been unaffected by the illegality. Those elections which are not affected cannot be annulled and set aside. (§ 20024.)
We reject respondents' argument that the remedy is justified by a process of apportioning the illegal absentee votes and deducting pro rata in proportion to the total absentee votes received. As recognized by the court in Russell v. McDowell, supra, 83 Cal. 70, 23 P. 183, such a method of disposing of illegal votes can never change the relative standings of the candidates and therefore is a " vain and nugatory proceeding." (Id. at p. 73, 23 P. 183.)
Even assuming in these circumstances it could be calculated how many votes were cast on each illegal ballot, in what district they were cast and in what proportion they were cast, any attempt to apportion pro rata must still meet the test of section 20024.
Although there are many rules for statutory construction, when the statutory language is clear and unambiguous, there can be no room for construction and the court should not indulge in it. (People v. Hernandez (1988) 204 Cal.App.3d 639, 655, 251 Cal.Rptr. 393.) The language of section 20024 expresses the clear legislative intent that elections results should only be nullified in circumstances where it is shown not only that illegal votes were cast, but that they were cast for the contestee. (Russell v. McDowell, supra, 83 Cal. at p. 73, 23 P. 183.)
It would be futile for this court to remand for further findings. It is clear from the findings and the record before us it would be impossible to find, by clear and convincing evidence, that the illegal votes were cast for the contestees in this case.
Indeed, it is obvious to this court it would be impossible in any multi-issue or multi-candidate primary or general election to determine the effect of illegal voting of the type and extent at issue here. Once illegal ballots are cast and commingled with the legal ballots, they cannot be traced to reveal for whom they were cast. For this reason, in order to insure an effective remedy, any action challenging the legality of absentee ballots should be mounted prior to the counting of the ballots.
In the instant case, the elections department suspected the ballots submitted by BAPAC might not have been legal. The county clerk had the discretion to reject and impound those ballots. (Cf. Wheelright v. County of Marin (1970) 2 Cal.3d 448, 456, 85 Cal.Rptr. 809, 467 P.2d 537; [9 Cal.Rptr.2d 874] Escalante v. City of Hermosa Beach (1987) 195 Cal.App.3d 1009, 1024-1025, 241 Cal.Rptr. 199; §§ 1006, 1013.) However, it was also within the discretion of the county clerk to decide there was insufficient information upon which to base a decision to reject and impound the BAPAC ballots.
We recognize the irony of the situation. The violations of election laws pertaining to absentee balloting in this case were pervasive and significant, yet the very nature and extent of the illegal voting renders any remedy illusory. The court is constrained by the statutory limitation on the authority to annul and set aside the election based upon illegal votes.
The judgment is reversed.
STONE (WM. A.) and ARDAIZ, JJ., concur.
APPENDIX A
CHARLES GOOCH, JIM COITO, DELBERT CEDERQUIST, LILO SANTELLANO, ED RANDOLPH, Contestants,
v.
HANK HENDRIX, TONY TAYLOR, OSCAR ROBINSON, MARY BESS, MEL SANDERS, LAWRENCE CATO, ROSEMARY GARCIA, LINDA ANDREWS, SAM HEARNES, TIM SANDERS, STEVE FRANKLIN, AND CARRIE SCHOALS, Defendants.
Case Number 452088-8.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO
Filed April 23, 1992.
[9 Cal.Rptr.2d 866] Anthony P. Capozzi, Fresno, for defendants and appellants.
Rayma Church, Perez, Makasian & Williams, Fresno, for plaintiffs and respondents.
RAYMA CHURCH 154897 PEREZ, MAKASIAN & WILLIAMS ATTORNEYS AT LAW A PARTNERSHIP OF LAW CORPORATIONS Attorneys for Contestants.
" Orange Center
"
LINDA ANDREWS (short term)
103
TIM SANDERS (full term position)
95
SAM HEARNES (full term position)
82
John Graham
65
Lilo Santellano
60
Gene Balthrop
56
" Pacific Union
"
LAWRENCE CATO
358
ROSEMARY GARCIA
316
Roland Lawrence
189
Delbert Cederquist
175
Tami Gandy
80
Toni Nagai
70
" West Fresno
"
HANK HENDRIX
306
OSCAR ROBINSON
292
TONY TAYLOR
270
Charles Gooch
114
Nadine Otschkal
81
Nancy Jones
67
" West Park
"
STEVE FRANKLIN
93
CARRIE SCHOALS
79
Ernest Morales
69
Ed Randolph
57
" Washington Union
"
MEL SANDERS
1015
MARY BESS
902
Frank Butterfield
744
Jim Coito
578
Lucky Archuleta
237
[9 Cal.Rptr.2d 868]The Absentee Voter Campaign
Grant Mitchell
209"
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Donald R. Franson, Judge Pro Tem Fresno County Superior Court 2
The above cause came on regularly for trial January 27, 1992, in Department Ten of the above entitled Court, the Honorable Donald R. Franson, presiding. The trial commenced on that date and continued on February 13, 14, 18 and 19, 1992. Rayma Church of Perez, Makasian & Williams appeared as counsel for Contestants and Anthony P. Capozzi appeared as counsel for Defendants.
Numerous witnesses testified and several documents were marked and received into evidence. Contestants submitted a post trial brief on February 27, 1992, and Defendants submitted a responsive brief on March 9, 1992. The Court, having considered the evidence, the written and oral presentations of counsel, and being fully advised, issues the following finding of fact and conclusions of law.
FINDINGS OF FACT
1. On November 5, 1991, a consolidated election was held in the County of Fresno, California, including election of board of trustee positions for Orange Center Elementary School District, Pacific Union Elementary School District, West Fresno Elementary School District, West Park Elementary School District and Washington Union High School District. There were three (3) positions available on the Orange Center Board; two (2) positions available on the Pacific Union Board; three positions on the West Fresno Board; two (2) positions on the West Park Board; and, two (2) positions on the Washington Union Board.
2. On November 19, 1991, the Fresno County Clerk certified the results of the subject school board elections, as follows:
Orange Center
LINDA ANDREWS (short term)
103
TIM SANDERS (full term position)
95
SAM HEARNES (full term position)
82
John Graham
65
Lilo Santellano
60
Gene Balthrop
56
Pacific Union
LAWRENCE CATO
358
ROSEMARY GARCIA
316
Roland Lawrence
189
Delbert Cederquist
175
Tami Gandy
80
Toni Nagai
70
West Fresno
HANK HENDRIX
306
OSCAR ROBINSON
292
TONY TAYLOR
270
Charles Gooch
114
Nadine Otschkal
81
Nancy Jones
67
West Park
STEVE FRANKLIN
93
CARRIE SCHOALS
79
Ernest Morales
69
Ed Randolph
57
Washington Union
MEL SANDERS
1015
MARY BESS
902
Frank Butterfield
744
Jim Coito
578
Lucky Archuleta
237
Grant Mitchell
209
[9 Cal.Rptr.2d 875] 3. On December 19, 1991, pursuant to Elections Code § 200211 Contestants jointly filed a Contest of Election naming as Defendants those persons declared elected. Contestants alleged (A) that Defendants had given or offered bribes to electors; (B) that Defendants had committed offenses against the elective franchise; and (c) that illegal votes were cast sufficient to change the results of the elections.
4. Contestants' List of Illegal Votes was served on all Defendants by January 6, 1992.
5. Commencing in July, 1991, the Fresno Chapter of the Black Americans Political Action Committee (hereafter " BAPAC") organized and sponsored a voter registration and absentee ballot drive, through an entity known as the " Voter Education Project." The project was designed to increase voter participation among minorities and to elect Defendants to the school boards of the Washington Union High School District and four of its " feeder" elementary school districts situated within the high school district.
6. Defendants Mel Sanders, Oscar Robinson, Hank Hendrix, and Mary Bess were members of BAPAC. Sanders was the president of the Fresno Chapter and Hendrix [9 Cal.Rptr.2d 876] was an officer in the statewide BAPAC organization.
7. The voter registration and absentee ballot procedures generally used by BAPAC can be described as follows: A BAPAC solicitor would visit registered and unregistered voters' residences to ask the resident to sign a registration affidavit and an absentee ballot application (Exhibit 40) for the coming election. The prospective voter would be told that BAPAC would mail the executed documents to the Elections Clerk and, when the ballot was received from the Clerk by BAPAC, it would hand-deliver the ballot to the voter.
Paragraph Three of the absentee ballot application form which called for the address to which the voter wants the ballot to be mailed by the Clerk, was with a few exceptions, never filled out by the voter. In some instances the paragraph was preaddressed and signed by the voter. In most instances, the application was left blank when the voter signed the application and filled in by BAPAC later.
The BAPAC solicitor would take the executed documents to BAPAC headquarters where a BAPAC address would be written on the application form as the address to which the voter wanted the ballot mailed. BAPAC would hand carry the registration and application forms to the Clerk.
When BAPAC received the absentee ballots from the Clerk, it would identify from its records the school district in which the voter resided; it would notify Voter Education Project workers, the candidate and/or candidate's workers to pick up the ballot for delivery to the voter. Ballots were delivered to voters either by BAPAC members, volunteers, paid workers, or by the candidates themselves.
If a voter was not home when delivery of the ballot was attempted, a notice was left at the door asking the voter to call a BAPAC telephone number listed on the notice so the ballot could be delivered to the voter as soon as possible. (Exhibit 44) When a ballot was delivered, the voter was encouraged to vote in the presence of the solicitor. In some instances, the solicitor would offer to answer questions about the candidates or issues. After the voter punched the appropriate number opposite the candidate names, the voter would place the ballot in the envelope, seal, sign and date the envelope and hand it to the solicitor. The solicitor would then return the envelope containing the ballot to BAPAC headquarters where it would be mailed to the Clerk.
8. Prior to the election, Frank Revis, the director of the Voter Education Project, and Defendant Mel Sanders met with Susan Anderson, the Fresno County Clerk, and Norma Logan, the head of the Elections Division of the Clerk's Office. One purpose of the meeting was to be sure the applications for absentee ballots being distributed by BAPAC conformed to law. Revis revealed that BAPAC had already obtained a large number of absentee ballot applications— by his own estimate, approximately 800. A number of these applications were then examined by Anderson and Logan who raised concerns that someone other than the voter was completing that portion of the application specifying the address to which the ballot was to be sent (Paragraph 3). Revis' attention was directed to Elections Code § 1006 which provides that the voter must " personally affixed" the address in Paragraph 3. BAPAC chose to ignore this warning and to follow its own ideas about permissible absentee ballot application and mailing procedures. 9. During their meeting, Anderson and Logan sought some assurance from Revis that BAPAC was not a political organization and that the ballots would not come into the possession of any candidates. Revis assured them that candidates would not have access to ballots and that BAPAC was not sponsoring candidates.
10. Subsequently, 1292 completed applications were submitted in which Paragraph 3 specified one of two BAPAC addresses, 2017 Tuolumne or 9584 South Chestnut. Anderson and Logan believed these applications did not comply with Elections Code § 1006 because the address in Paragraph 3 was not personally affixed by the voter. [9 Cal.Rptr.2d 877] Anderson and Logan also suspected BAPAC was a political organization which should not receive absentee ballots under Elections Code § 1006.
11. BAPAC was unable to secure the ballots at 2017 Tuolumne, where it shared space with another entity and so Revis filed a request with the postmaster that all absentee ballots sent to 2017 Tuolumne to be held for pickup by BAPAC. No hold arrangement was made with respect to 9854 S. Chestnut, though that address was a rural postal box, also incapable of holding and securing all the ballots. Eventually, all the absentee ballots sent to BAPAC addresses were delivered to 705 Mayer, the headquarters of the Voter Education Project.
12. Absentee ballots were provided Defendants Mel Sanders, Oscar Robinson, Linda Andrews, Tim Sanders, Samuel Hearnes, Mary Bess, Lawrence Cato, Tony Taylor, Steve Franklin, and Carrie Schoals directly by the Voter Education Project for delivery to voters. Lawrence Cato gave some ballots to Defendant Rosemary Garcia for delivery to voters.
13. No record was kept by BAPAC of who was given what voters' ballots or when any ballot was delivered to any voter.
14. BAPAC did record whether a ballot had been returned by a voter to BAPAC for mailing, i.e., return to the Elections Department and that BAPAC had mailed it.
15. The Elections Department received 1,023 voted ballots that had been sent to BAPAC, 930 of which were counted and 93 of which were disqualified by Clerk's challenge. (Exhibit 58)
16. Of the 93 BAPAC ballots disqualified, 63 were challenged on the basis of signature. (Exhibit 58)
Evidence of Fraud and Tampering
17. Witness Elaine Major, an elector of West Fresno Elementary and Washington Union, testified she had not voted in the November, 1991, election; had not requested an absentee ballot; and, had not received an absentee ballot. Upon being presented with a request for absentee ballot form which purported to bear her signature, Ms. Major denied the same was hers. Upon being presented an absentee ballot envelope bearing a signature of Elaine Major, Ms. Major denied it was her signature. The Clerk's record showed that an absentee ballot for Ms. Major had been sent to 2017 Tuolumne but had been disqualified as the signature had not matched her registration. 18. Juan Rodriguez, an elector of West Fresno and Washington Union, testified through an interpreter that his signature was solicited for the schools but he had told the person who came to his house that he could not vote, that he was not registered. The person told him it was alright for Rodriguez' daughter to sign on his behalf. The Clerk's records showed that Mr. Rodriguez had been registered to vote on the same date that a BAPAC application for absentee ballot had been completed. Rodriguez identified these documents as having been signed by his daughter. An absentee ballot had been sent to Rodriguez at 2017 Tuolumne, voted and returned to the Elections Department. The ballot had been disqualified on the basis of signature. Rodriguez identified the signature on the ballot as his own but testified that he had not done anything more than sign the ballot envelope, having again been told to " sign for the schools."
19. Frank Silva, an elector of Orange Center and Washington Union, testified that three people came to his home late at night, delivered absentee ballots for him and his wife along with campaign literature, and told him for whom to vote. The people who brought the ballots told him they would return later that evening to retrieve the ballots and instructed Silva not to seal the ballots. Silva testified he did not feel leaving the ballots unsealed was right and questioned them about it, but they were emphatic and so he did not seal the ballots. The people did not return that night but two days later, when only Silva's wife was at home. Silva had not signed his ballot envelope and Silva's wife was instructed to sign her husband's name to the envelope. Silva testified his wife said no, [9 Cal.Rptr.2d 878] but the individuals insisted that she had to do so. Though Silva voted for the persons he was instructed, he had no complaint about who he voted for, only that he did not believe they should have pressed his wife to sign his name when she indicated she did not wish to do so. The Clerk's record showed Silva's ballot had been sent to 2017 Tuolumne, returned and counted.
20. Encarnation Ramirez, an elector of West Park and Washington Union, testified he had not completed an application for an absentee ballot but recalled someone coming to his door requesting he sign a petition for a free breakfast program. Subsequently, he received an absentee ballot which his wife voted on his behalf. The Clerk's record showed Ramirez' ballot had been sent to 2017 Tuolumne but disqualified on the basis of signature.
21. Calvin Williams, an elector of West Fresno and Washington Union, testified he had mailed his daughter's application for absentee ballot but a few days later, Clarence Lucy, a BAPAC worker, personally delivered his daughter's ballot to the house. Lucy had told Williams he received the ballot from Defendant Mel Sanders.
22. Raliola Epperson, an elector of West Fresno and Washington Union, testified that Defendant Mary Bess and Leroy Brown brought absentee ballots to her home and that Brown completed Epperson's ballot. Epperson denied consenting to this procedure, denied instructing Brown to vote her ballot, and denied Brown consulting her with respect to the choices made on her ballot. Epperson further testified that Bess and Brown had the ballots of her sister, Milicent, her aunt, Johnnie Mae Martin, and her brother Russell, and her uncle. Epperson identified the signature on the absentee ballot envelope as hers but denied the signature on her voter registration was hers. The Clerk's record showed Epperson's absentee ballot had been sent to 2017 Tuolumne but upon returned was disqualified on the basis of signature.
23. Johnnie Mae Martin, an elector of West Fresno and Washington Union, testified substantially to the same facts as her niece, Raliola Epperson. Martin denied having voted, denied having consented to someone else voting her ballot, and denied being consulted in the selection of candidates. Martin admitted to signing the envelope. Martin identified Defendant Bess and Leroy Brown as the persons having possession of the absentee ballot. The Clerk's record showed Martin's absentee ballot had been sent to 2017 Tuolumne but was disqualified on the basis of signature.
24. Ray Smith, the manager of Zip Print, produced records of purchases by BAPAC of certain campaign fliers, including a pamphlet denoted as being from the " Concerned Citizens Committee", and an item designated as a doorhanger used to notify voters who were not home when BAPAC attempted to deliver their ballots how to contact BAPAC for their ballot. Smith also produced a flier which depicted the photos of all Defendants except Carrie Schoals, announcing their election, and a victory party. Smith further testified that BAPAC had requested Zip Print reproduce a large number of an item he identified as a sample ballot; however, Smith informed BAPAC that he could not print the document and directed them to contact the State of California.
25. BAPAC, an admitted political organization, through the auspices of its Voter Education Project, assisted the Defendant candidates in their campaigns by providing and distributing materials and access to information concerning voters. This assistance was not provided all candidates and would have been denied certain candidates even if requested. In this manner, BAPAC assisted in the election of Defendants to non-political offices.
26. Ballots received by the Elections Department which were not challenged and disqualified are removed from their transmittal envelopes and counted. Once an absentee ballot is removed from the envelope it is totally anonymous and it cannot be determined to which voter it belonged.
27. Michael Smith, a certified public accountant, testified he had been provided a copy of the 1991 Absentee Voter Canvass [9 Cal.Rptr.2d 879] Report which reflected each absentee ballot sent out by the Elections Department in the precincts involved in the subject elections. Smith testified he had reviewed the Report and computed, among other things, the total number of absentee ballots sent to the BAPAC addresses, the total number of absentee ballots counted from each BAPAC address, the total number of BAPAC absentee ballots not returned, the total number of BAPAC absentee ballots challenged and disqualified, the total number of non-BAPAC absentee ballots challenged and disqualified, the total number of absentee ballots counted, the total number of forced mail precinct ballots counted. Smith calculated, for each district race, the percentage of the voted ballots comprised of BAPAC ballots, and what each candidate's total tally would be if reduced by his or her proportionate share of the absentee ballot population. (Exhibits 53 through 58)
28. Of the 1292 absentee ballots sent to the BAPAC addresses, 269 were never returned to the Elections Department in any form. BAPAC was unable to account with any degree of reliability for the disposition of the 269 non-returned ballots.
CONCLUSIONS OF LAW
Illegal Votes Cast
1. A contestant must prove the alleged defect in the election by clear and convincing evidence. (Wilks v. Mouton (1986) 42 Cal.3d 408, 229 Cal.Rptr. 1, 6 [722 P.2d 187], fn. 7)
2. " It is the primary purpose of the election contest provisions to ascertain the will of the people and to make certain that mistake or fraud has not frustrated the public volition." (Enterprise Residence Etc. Committee v. Brennan (1978) 22 Cal.3d 767, 774, 151 Cal.Rptr. 1 [587 P.2d 658] )
3. There is an express legislative policy in favor of the absent voter. (§ 1001) The California Constitution contemplates absentee voting will occur and that the Legislature will have broad power over its regulation. (Peterson v. City of San Diego (1983) 34 Cal.3d 225-228, 193 Cal.Rptr. 533, 534-535 [666 P.2d 975].)
4. A distinction has been developed between mandatory and directory provisions in election law; a violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not if there is substantial compliance and now showing the results were changed or the rights of the voters injuriously affected. (Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430, 197 P. 74.)
Three basic principles govern the judicial interpretation of statutes: (1) The court must ascertain the intent of the Legislature so as to effectuate the purpose of the law; (2) the provision under scrutiny must be given a reasonable and commonsense interpretation consistent with its avowed purpose; and, (3) the court must given significance to every word and part, and harmonize the parts by considering a particular clause or section in the context of the whole. (7 Witkin, Summary of Cal. Law, (9th ed. 1991) Constitutional Law, § 94, pp. 146-147.)
5. Elections Code § 20021(c) provides that an election contest may be brought on the ground that illegal votes were cast sufficient to affect the result of an election. " ‘ The term " illegal votes," includes votes cast by persons not privileged to vote and votes not cast in the manner provided by law.’ (Citation.) In addition, votes cast in violation of the Elections Code, and votes cast by persons who received their absentee ballots in an improper manner are also illegal votes. (Citation.)" (Hardeman v. Thomas (1989) 206 [208] Cal.App.3d 153, 168, 256 Cal.Rptr. 158, 177.)
6. In Wilks v. Mouton, supra, 42 Cal.3d 400, 229 Cal.Rptr. 1 [722 P.2d 187], the California Supreme Court reviewed an election contest where 15 absentee ballot applications listed, as the place to which the ballot was to be sent, the address of a proponent of the measure at issue. The Court ruled a voter could designate a place other than his residence as the place to receive his ballot. The Court noted that in some instances a proponent had assisted voters in completing their ballots; however, [9 Cal.Rptr.2d 880] because the assistance was provided at the voter's request without fraud or coercion, all disclosures were voluntary and the ballot reflected the voter's decision. The votes were found to be valid as each voter had, in fact, received his ballot and there was no tampering.
In his concurring opinion, Justice Grodin expressed concern for procedures which allow persons other than the voter to observe the ballot being cast, noting that " a number of ballots ... were cast by absentee voters in the presence of or with the assistance of campaign partisans, one of whom was actually a candidate, and under circumstances bound to give rise to the suspicion if not the actuality of coercion." Grodin went on to explain " the problem is not one of simply purchasing votes ... The problem includes the potential for more subtle forms of coercion ... [I]t is inevitable that political and special interest groups will be tempted to ‘ assist’ voters in casting their ballots...." Ultimately, Justice Grodin suggested a need for prophylactic rules which the Legislature could best provide. (42 Cal.3d [at] 413, 415, 229 Cal.Rptr. [at] 9-10 [722 P.2d at 196-97], and citing Peterson v. City of San Diego, supra, 34 Cal.3d [at] 231-232, 193 Cal.Rptr. [at] 537-538 [666 P.2d 975].)
7. The Legislature responded in 1987 by amending § 1006 to provide in explicit term that the address to which the ballot is to be mailed " shall be personally affixed by the voter" on the application. (§ 1006, subd. (a)(2), (b)(1).) The Legislature also added the prohibition that the return address for the ballot " may not be the address of any political party, a political campaign headquarters, or a candidate's resident." (§ 1006, subd. (b)(2).)
8. The Legislature's use of the word " shall" in § 1006 in conjunction with the term " personally affix" denotes an imperative command that the voters it to personally write in the address by his own hand. (Black's Law Dictionary, 5th ed., p. 1233.) As Defendants have argued, this does not permit a person to authorize a family member or friend or any other third party, to write in the address in Paragraph 3. The mandatory nature of § 1006 denotes a policy designed to minimize partisan third party involvement in absentee balloting as suggested by Justice Grodin. Requiring the voter to personally write in the address, in his or her own hand, gives election officials some assurance the voter actually intends the ballot be sent to such address. 9. The policy to minimize partisan third party involvement is further demonstrated by the amendment to § 1006 precluding the return address from being " the address of any political party, a political campaign headquarters, or a candidate's residence."
10. BAPAC's address qualified as a political campaign headquarters within the prohibition of § 1006. This is shown not only by BAPAC's partisan support of Defendants but by Fresno BAPAC President Mel Sanders' written announcement in the annual statewide meeting's brochure:
" Fresno BAPAC opened its office in July and ... we launched our most ambitious task to date: ... ‘ the BAPAC Voter Education Project.’ This project has targeted 13 seats of several of the smaller school district boards that serve the southwest urban area of metropolitan Fresno. The central strategy in the election involves a highly selective process of both voter registration and absentee ballot applications. With some $10,000 in cash, equipment and materials, we are projecting a landslide in seven of the elections and comfortable wins in the others. President Sanders views this as a kind of stagesetting for all of the general activity coming in the 1992 elections."
(Contestants' Exhibit 39, page 25. Emphasis added.)
11. Finally, the policy of minimizing partisan third party activity is reflected in the 1987 amendment to § 1013 which provides, in pertinent part:
" After marking the ballot, the absent voter shall either: (1) return the ballot by mail or in person to the official from whom it came or (2) return the ballot in person to any member of a precinct board at any polling place within the jurisdiction."
[9 Cal.Rptr.2d 881] The amendment expressly excuses the absent voter from the " in person" return requirement if the voter is ill or otherwise physically disabled. In this situation, the voter may designate a specifically described family member to return the ballot. In enacting these amendments, the Legislature found an immediate need to clarify the potential ambiguity in Wilks v. Mouton, supra, 42 Cal.3d 400, 229 Cal.Rptr. 1 [722 P.2d 187], where the Supreme Court ruled the provisions of § 1013 directory so that ballots collected and delivered by third parties who were not election officials could be counted under some circumstances. " The intent of the Legislature is and always has been that the provision of § 1013 are mandatory and not directory in effect." (Historical and Statutory Notes to § 1013, West's Annotated California Codes, Volume 28C, 1992 Cumulative Pocket Part, page 39.)
12. The term " illegal votes" as used in § 20021(c), which authorizes an election contest where illegal votes were cast sufficient to affect the result of an election, includes votes cast in violation of the Elections Code and votes by persons who received their absentee ballots in an improper manner. (Hardeman v. Thomas, supra, 206 [208] Cal.App.3d [at] 168, 256 Cal.Rptr. [at] 166-167.) Thus, ballots mailed to the BAPAC addresses and counted in the election were in violation of the provisions of § 1006 and were illegal votes.
The Remedy
13. The utmost care is required when a court reviews a contest challenging the expressed will of voters. (Hardeman v. Thomas, supra, 206 [208] Cal.App.3d [at] 166-167, 256 Cal.Rptr. [at] 166.) This court may not upset the election results absent compelling reasons going to the fundamental principles of our representative form of government. Hence, the voters should not be deprived of their right to elect the candidate of their choice because of technical defects in the voting procedures. On the other, this court must not " sacrifice the integrity of the elective process on the alter of electoral finality. ‘ Preservation of the integrity of the elective process is far more important in the long run than resolution of any one particular election.’ " (Hardeman v. Thomas, supra, 206 [208] Cal.App.3d [at] 166, 256 Cal.Rptr. [at] 166; Fair v. Hernandez (1981) 116 Cal.App.3d 868, 881, 172 Cal.Rptr. 379, 385.)
14. This court cannot determine with certainty how the illegal ballots were cast. Thus, it cannot deduct the illegal votes directly from a defendant to see if he or she received a majority of the lawful votes for the office. (§§ 20024, 20087.) Nevertheless, after careful consideration of the competing factors noted above, and in light of the wholesale violation of the mandatory requirements of the absentee voting laws in this case, the court believes a remedy should be provided. Anything less, under these facts, would result in a loss of public respect for and diminution of the integrity of the absentee ballot process. It would also tend to encourage even greater abuse of the process in future elections.
15. The evidence shows that BAPAC and many of the Defendants utilized a plan to obtain, in an unlawful manner, a substantial number of absentee ballots. BAPAC and many of the Defendants controlled these ballots. Fraud and tampering occurred with respect to some of these ballots. Although the testimony which concerned fraud and tampering only applied to ballots which were challenged and not counted, reasonable inferences may be drawn that such conduct occurred in other instances. This is inevitable when absentee ballots are in the hands of third parties having a partisan interest.
16. The BAPAC solicitors, and at time, Defendants themselves, discussed with absent voters at the time of voting, how the voter should vote. Again, manipulation and suggestion, however, subtle, is inherent in the entire process. (Peterson v. City of San Diego, supra, 34 Cal.3d [at] 231-232, 193 Cal.Rptr. [at] 536 [666 P.2d 975]; Hardeman v. Thomas, supra, 208 Cal.App.3d [at] 169, 256 Cal.Rptr. [at] 168.)
17. For the above reasons, this court is convinced the great majority of the counted BAPAC ballots were voted for Defendants. [9 Cal.Rptr.2d 882] This was, after all, the very purpose of the project which BAPAC had proudly predicted would be " a landslide." Thus, the court finds the illegal votes cast were sufficient to affect the election of many of the Defendants.
18. Pursuant to Elections Code § 20086, the election results certified on November 19, 1991, shall be annulled as to the subject school districts and new elections held forthwith. 21. Any conclusion of law determined to be a finding of fact shall be considered a finding of fact.
" The court shall continue in special session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within 10 days after the submission thereof, the court shall file its findings of fact and conclusions of law, and immediately thereafter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election. The judgment shall be entered immediately thereafter."