CHARLES GOOCH et al., Plaintiffs and Respondents, v. HANK HENDRIX et al., Defendants and Appellants.
No. S028315
Supreme Court of California
June 1, 1993
July 15, 1993
266
Anthony P. Capozzi for Defendants and Appellants.
Perez, Makasian & Williams and Rayma Church for Plaintiffs and Respondents.
OPINION
LUCAS, C. J.--May an election be annulled on clear and convincing evidence of illegal voting when it appears the illegal votes affected the outcome of the election, but it cannot otherwise be determined precisely for whom the illegal votes were cast?
We conclude the controlling statute,
I. FACTS
A. The Election
On November 5, 1991, consolidated elections were held in Fresno County for school board positions in one high school and four elementary school districts. 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; voters in each elementary school district received a ballot allowing them to vote for candidates for openings on their respective elementary school district boards, as well as for the Washington Union High School District Board.
| 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 | 1,015 |
| MARY BESS | 902 |
| Frank Butterfield | 744 |
| Jim Coito | 744 |
| Lucky Archuleta | 237 |
| Grant Mitchell | 209 |
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,2 in his October 1991 written report to the statewide annual BAPAC conference in Sacramento, as follows:
“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 VEP. Revis recruited his family members, BAPAC members and their families, and other nonmembers of BAPAC, as volunteers for the project. Some VEP workers were also paid.
The trial court made the following findings of fact, among others, regarding the manner in which VEP‘s voter registration and absentee ballot “strategies” were effectuated (numerical paragraph designations and references to trial exhibits have been omitted):
“A BAPAC solicitor would visit registered and unregistered voters’ residences to ask the resident to sign a registration affidavit and an absentee ballot application 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 [was] 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 [the] 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.
“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.
“Prior to the election, [VEP Director] Frank Revis and [BAPAC Fresno Chapter President] 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 the 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 affix[]’ 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.“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. “Subsequently, 1,292 completed [absentee ballot] 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. Anderson and Logan also suspected BAPAC was a political organization which should not receive absentee ballots underElections Code § 1006 .“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 [were] 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 [which was also Revis’ home address].
“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.”
C. The Elections Contest
On December 19, 1991, respondents, unsuccessful candidates in the consolidated elections, filed suit to contest the election results pursuant to
That the testimony of one elector of the West Fresno/Washington Union School Districts established she had not signed the absentee ballot application, nor the envelope for the ballot, which had been sent to one of the BAPAC addresses and returned to the clerk with signatures purporting to be hers. Another elector of those districts testified through an interpreter that a person came to his home, urged him to “sign for the schools,” and further advised him it was all right for his daughter to sign the absentee ballot application for him. The clerk‘s record established the ballot had been processed through BAPAC‘s VEP.
That the testimony of an elector from the Orange Center/Washington Union School Districts established three people came to his home late one night, “told him for whom to vote,” and were emphatic that he not seal his ballot. They returned when only his wife was home and, discovering he had not signed the ballot, instructed her to sign her husband‘s name for him. This ballot was shown to have been processed through BAPAC.
That testimony of an elector of the West Park/Washington Union School Districts established he never completed an application for an absentee ballot, but recalled someone coming to his door requesting he sign a petition for a free breakfast program. Election records showed an absentee ballot had thereafter been mailed, ostensibly on his behalf, to a BAPAC address.
That testimony of an elector of the West Fresno/Washington Union School Districts established candidate Mary Bess and Leroy Brown brought an absentee ballot to the elector‘s home, and that Brown completed her ballot for her. The witness denied she had either consented to this procedure, instructed Brown to vote her ballot, or been consulted by Brown concerning the choices made on her ballot.4
The trial court‘s written findings further noted the testimony of the manager of a local copy shop. BAPAC representatives had requested his
The trial court concluded BAPAC was in fact “an admitted political organization,” that through the auspices of the VEP it had assisted defendant-candidates in their campaigns by providing and distributing materials and furnishing access to information concerning voters, and that “[t]his 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.”
In addition to the certified election results reported above (ante, at p. 270), the following statistical facts, among others, regarding the illegal absentee ballots that were counted, and those which were disqualified by clerk‘s challenge, were established from official election records and other testimony and evidence adduced at trial:
The Fresno County Clerk Elections Department mailed a total of 1,292 absentee ballots to the BAPAC addresses. Of those, 269 were never returned to the elections department in any form, and BAPAC was unable to account with any degree of reliability for the disposition of those 269 nonreturned ballots.
Each of the aforesaid provisions of law was in full force and effect at the time of the consolidated elections herein concerned. Each constitutes an “offense against the elective franchise defined in Division 17” of the Elections Code, violations of which themselves can furnish independent statutory grounds for contesting and annulling the election, separate and apart from the effects of any illegal votes actually counted. (§ 20021, subd. (c); see Stebbins v. White (1987) 190 Cal.App.3d 769, 788-791 [235 Cal.Rptr. 656].)
The percentages of illegal ballots cast in each of the school district contests (obtained by dividing the number of illegal-but-counted BAPAC ballots by the total number of ballots counted in each district) were as follows: Orange Center Elementary, 70/173 = 40 percent; Pacific Union Elementary, 310/632 = 49 percent; West Fresno Elementary, 369/509 = 72 percent; West Park Elementary, 76/176 = 43 percent; and Washington Union High School, 930/2224 = 42 percent.
The trial court determined there had been fraud and tampering with respect to the 93 ballots disqualified by clerk‘s challenge. It further found the remaining 930 absentee ballots from BAPAC were cast in violation of
The Court of Appeal reasoned, “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. [[] 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.”
The irony of this conclusion was not lost on the Court of Appeal, which concluded: “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.”
II. DISCUSSION
A. Standard of Review
Strict rules embodied in the Elections Code govern a court‘s review of a properly contested election. “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.]” (Wilks v. Mouton (1986) 42 Cal.3d 400, 404 [229 Cal.Rptr. 1, 722 P.2d 187], quoting Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430 [197 P. 74].) There is an express legislative policy requiring liberal construction of absentee ballot provisions in favor of the absentee voter. (
“The scope of review in an election contest is not different from other cases. Where the evidence is in conflict, [the appellate court] will defer to the trial court where events at trial and demeanor of the witnesses play an important part in the decision.” (Escalante v. City of Hermosa Beach (1987) 195 Cal.App.3d 1009, 1014 [241 Cal.Rptr. 199], quoting Fair v. Hernandez, supra, 116 Cal.App.3d at p. 874; see also Hardeman v. Thomas (1989) 208 Cal.App.3d 153, 166 [256 Cal.Rptr. 158].) “The contestant has the burden of proving the defect in the election by clear and convincing evidence. (Smith v. Thomas (1898) 121 Cal. 533, 536 [54 P. 71]; Hawkins v. Sanguinetti (1950) 98 Cal.App.2d 278, 283 [220 P.2d 58]; Wilburn v. Wixson [(1974)] 37 Cal.App.3d [730,] 737 [112 Cal.Rptr. 620].)” (Wilks v. Mouton, supra, 42 Cal.3d at p. 404.) “[W]e must consider the evidence in the light most favorable to the prevailing party, giving such party the benefit of every reasonable inference, and resolving all conflicts in support of the judgment. [Citation.]” (Wilks v. Mouton, supra, 42 Cal.3d at p. 408, fn. 7.) And “[w]e are . . . bound by the trial court‘s determination of the facts except to the extent that they are not supported by substantial evidence. (Wilburn v. Wixson, supra, 37 Cal.App.3d 730, 737; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 278, p. 289.)” (Wilks v. Mouton, supra, 42 Cal.3d at p. 404.)
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].) Illegal votes include votes by persons receiving their absentee ballots in a manner that violates election laws governing absentee balloting. (Hardeman v. Thomas, supra, 208 Cal.App.3d 153, at p. 168.)
As noted above, the Court of Appeal concluded that substantial evidence supported the trial court‘s finding that counting the 930 absentee ballots violated the mandatory provisions of
“All absentee ballots cast . . . 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 provisions of this section are mandatory, not directory, and no ballot shall be counted if it is not delivered in compliance with this section.”8
In the present case, the 930 absentee ballots at issue were collected from the absentee voters by BAPAC and returned to the county clerk by
Accordingly, the 930 ballots delivered in violation of
C. Section 1006
An application for an absentee ballot must provide a space for the address to which the ballot is to be sent. (
This finding, too, is supported by substantial evidence. In his 1991 report to the BAPAC statewide convention, Fresno Chapter President Mel Sanders indicated BAPAC‘S VEP “has targeted 13 seats of several of the smaller school district boards that serve the southwest urban area of metropolitan Fresno,” and that “The central strategy in the election involves a highly selective process of both voter registration and absentee ballot applications. . . . [W]e are projecting a landslide in seven of the elections and comfortable wins in the others.”
D. The Remedy
As explained above, it is presently impossible to distinguish the 930 illegal BAPAC absentee ballots from the remaining valid ballots cast in the consolidated elections. Thus, it cannot now be determined with mathematical certainty how the illegal votes on the illegal ballots were cast. The trial court recognized it could not deduct the illegal votes from the defendants to see who received a majority of lawful votes for each office. (§§ 20024, 20087.)
The trial court nevertheless concluded, “in light of the wholesale violation” of the absentee voting laws in this case--including (i) the
In reversing that order, the Court of Appeal concluded that, “[e]ven 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.” The court further stated its opinion that “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.”
The Court of Appeal‘s construction of the language of
Fundamentally, the objective of statutory interpretation is to ascertain and effectuate legislative intent. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal.Rptr. 656, 741 P.2d 154]; People v. Overstreet (1986) 42 Cal.3d 891, 895 [231 Cal.Rptr. 213, 726 P.2d 1288].) In determining intent, we look first to the words of the statute themselves. (Woodhead, supra, 43 Cal.3d at p. 1007; Overstreet, supra, 42 Cal.3d at p. 895; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [127 Cal.Rptr. 122, 544 P.2d 1322].)
Likewise,
Our interpretation of
During trial on the contest, several votes were disqualified because the voters were nonresidents, or because city officials made illegal offers of consideration to prospective voters, including promises of improved city services in the event consolidation passed. These promises were in the form of contracts between the City of San Jose and the Alviso Improvement Corporation, an organization with close ties to the San Jose City Manager‘s office. The election results were 189 votes in favor of and 180 votes opposed to consolidation. (Canales v. City of Alviso, supra, 3 Cal.3d at pp. 123-124.) Thereafter, 21 votes were challenged by the contestants.
The trial court upheld the election after finding that “of the 21 challenged voters, 10 were disqualified by nonresidence in Alviso and one by virtue of a felony conviction; that of these 11 illegal votes, one was cast for and one against consolidation.” (Canales v. City of Alviso, supra, 3 Cal.3d at p. 125.) The court could not, however, determine how the remaining nine illegal votes were cast. It therefore concluded the remaining nine votes should be apportioned by “tak[ing] half from each side--leaving a final tally of 183 1/2
In reversing the judgment, we acknowledged that
We observed in Canales that, “[t]he policy in favor of upholding elections appears in the cases in conjunction with the rule that ‘[t]echnical errors or irregularities which do not affect the result will not [void] the election.’ [Citations.]” (Canales v. City of Alviso, supra, 3 Cal.3d at p. 127; see discussion ante, at p. 278.) We further recognized that “neither [the policy nor the rule] has been invoked to uphold an election in the face of illegalities which affected the result--a situation in which the will of the people may be thwarted by upholding an election.” (Ibid.)
We rejected the respondents’ claim that the election contestants’ evidentiary showing, which was largely circumstantial (illegal voters had signed a petition to put the consolidation measure on the ballot), was insufficient to establish that the election had in fact been affected by the illegal votes. Opining that “a voter‘s signature on a petition urging that an issue be put on the ballot so that a certain result may be obtained is circumstantial evidence which is admissible to show that he in fact voted in favor of that result [Citation],” we concluded that the “[r]espondents had the same . . . opportunity to ask voters how they voted, but did not cross-examine the witnesses who testified that they signed the petition or favored consolidation to attempt to rebut [contestants‘] circumstantial showing that the witnesses voted in accord with their signatures on the petition. [[] Although an elector who signed the petition may subsequently have changed his mind, respondents made no effort to show that this ever occurred in fact. As a result the record clearly contains substantial evidence tending to show that all nine illegal votes were cast in favor of consolidation, and absolutely no evidence to the contrary. Accordingly, this judgment [confirming the election] must be reversed for lack of any evidentiary support. [Citation.]” (Canales v. City of Alviso, supra, 3 Cal.3d at p. 128.)
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the Court of Appeal.
Mosk, J., Panelli, J., Arabian, J., Baxter, J., and George, J., concurred.
KENNARD, J., Dissenting.--In this case, plaintiffs, unsuccessful candidates for school board positions in five school districts in Fresno County, seek to set aside the election of their opponents on the ground that “illegal votes were cast.” (Elec. Code, § 20021, subd. (d).)1 A large number of illegal votes were cast in the elections for each of the five school districts, and, if all of those votes were cast for the successful candidates, the outcome of each of the elections would be affected. But the evidence plaintiffs introduced in support of their challenge to the election does not show for whom the illegal ballots were cast. The majority nonetheless concludes that the election should be set aside.
I disagree. In my view, the law permits an election to be set aside because of illegal votes only if the person challenging the election can show that a
I
Insofar as I can determine from the skimpy record furnished to this court,2 the relevant facts are these: In November 1991, elections were held in Fresno County for positions on the boards of one high school and four elementary school districts. Either two or three positions were vacant on each of the various boards, so voters were entitled to vote for more than one candidate. The losing candidates (plaintiffs) challenged the results of the election.
Plaintiffs’ challenge was directed primarily to the activities of the Voter Education Project (VEP), an organization created by the Fresno Chapter of the Black American Political Association of California (BAPAC). Although BAPAC did not endorse candidates in the elections, four of the winning candidates were BAPAC members, and the referee found that BAPAC had “assisted” the winning candidates by “providing and distributing materials and access to information concerning voters.”
Before the election, VEP workers visited potential voters in their homes and urged them to sign registration affidavits and to apply for absentee ballots. The VEP workers encouraged these potential voters to agree to have their ballots hand-delivered to them by BAPAC; in most cases, VEP workers filled in BAPAC‘s address as the place to which the ballots were to be mailed.
The absentee ballots that were mailed to BAPAC were then brought to voters’ homes by VEP workers, BAPAC members, and candidates in the
As the majority explains, the manner in which the VEP workers provided the ballots to the voters and the mode of casting the ballots violated the absentee voting requirements of
BAPAC mailed 1,023 absentee ballots to the county elections department. Of these, 93 ballots were disqualified. The elections department removed the remaining 930 from their envelopes, commingled them with the other ballots cast in the election, and counted them. As a result, 930 illegal ballots were tabulated in the high school district election, and smaller numbers of illegal ballots were tabulated in the elections for the elementary school districts.
II
Before considering whether, and on what basis, plaintiffs’ challenge to the school board elections should be upheld, it is important to distinguish an election challenge brought on the ground of “illegal votes” under
An “illegal” vote is simply a ballot cast in violation of the procedures established by the Elections Code. A ballot may be illegally cast even
If a trial court finds that the number of illegal votes cast for a winning candidate is so great that, when those votes are subtracted from the candidate‘s total, that candidate no longer has a plurality of the votes legally cast, the court must not only set aside the election (§ 20024), but it must also declare as the winner the candidate who received the plurality of the legally cast votes. (§ 20087.) In that situation, the result will be the election of a candidate who did not enjoy the support of a plurality of the people who cast ballots, because some of the persons voting for the candidate who received the most votes did not cast their votes in the statutorily approved manner.
Because a successful election challenge based on illegal votes may thus lead to the election of a candidate receiving a minority of the votes cast (but a plurality of the legally cast ballots), the Legislature has stated that absentee ballot provisions “shall be liberally construed in favor of the absent voter” (§ 1001) and this court has said that “[e]ven mandatory provisions [of the election laws] must be liberally construed to avoid thwarting the fair expression of popular will.” (Wilks v. Mouton (1986) 42 Cal.3d 400, 404.) To prevail, a contestant must show a defect in the election by “clear and convincing evidence.” (Ibid.; see also Smith v. Thomas (1898) 121 Cal. 533, 536.)
When, by contrast, a challenge is based on offenses against the elective franchise under section 20021(c), the issue for the trial court is not whether individual votes were improperly cast; rather, the issue is whether the prevailing candidate has committed any one of a number of criminal acts proscribed by the Elections Code.
Here, plaintiffs’ challenge to the election was twofold: illegally cast votes under section 20021(d), and the candidates’ commission of offenses against the elective franchise under section 20021(c). Because the trial court ordered a new election on the ground that illegal votes were cast, it did not resolve plaintiffs’ challenge under section 20021(c). The majority upholds the trial court‘s ruling. I do not agree, as I shall explain.
A challenge to an election based on illegally cast votes must satisfy the evidentiary burden imposed by
In other words, under
In this case, plaintiffs presented virtually no evidence of how the 930 illegal ballots BAPAC submitted to the county elections department were cast. According to the trial court‘s findings of fact, two voters testified that the VEP worker who brought them their absentee ballots assisted them in voting; their ballots, however, were among the ninety-three ballots that were disqualified by the county elections department and not counted. One voter testified that the VEP workers told him for whom to vote; his vote was counted by the elections department. Two other persons testified that they had not voted, although the records of the elections department showed that ballots had been submitted on their behalf. The elections department disqualified both of these ballots. The trial court‘s findings of fact contain no other evidence of the manner in which individual voters cast their ballots.
Plaintiffs could have called as witnesses each of the persons who had submitted illegal ballots, or, more realistically, a representative sample of those persons, and asked them how they voted.4 Alternatively, plaintiffs could have used other circumstantial evidence to show for whom the individuals cast their illegal votes. (See Canales v. City of Alviso, supra, 3 Cal.3d
Plaintiffs’ failure to satisfy the statutory burden can be readily shown by an examination of the election in one school district. In the Pacific Union School District, for example, two seats were contested. Elected were Lawrence Cato and Rosemary Garcia, who defeated Roland Lawrence, Delbert Cederquist, Tami Gandy, and Toni Nagai. The totals were: Cato--358; Garcia--316; Lawrence--189; Cederquist--175; Gandy--80; Nagai--70. There were 310 illegal ballots. Because Cato‘s margin of victory over his nearest unsuccessful challenger (Lawrence) was 169 votes, plaintiffs had to show that 169 more illegal votes were cast for Cato than were cast for Lawrence to overturn Cato‘s election under
Because voters could vote for more than one candidate, ballots could be cast in four different ways: (1) voters could vote for neither Cato nor Lawrence, (2) they could vote for both of them, (3) they could vote for Cato but not Lawrence, and (4) they could vote for Lawrence but not Cato. Illegal votes in categories (1) and (2) would not affect the outcome of the election, because they would not alter Cato‘s margin of victory; illegal votes in category (3) would, if deducted from Cato‘s total, reduce his margin of victory, while illegal votes in category (4) would, if deducted from Lawrence‘s total, increase Cato‘s margin. Because the margin of victory was 169 votes, Cato‘s election would be affected only if plaintiffs could show that of the 310 illegally cast ballots, there were 169 more of them in category (3) than there were in category (4).
Plaintiffs offered no evidence showing how many of the illegal votes fell into each of the four categories I just described. Consequently, it is impossible to determine from the evidence presented whether Cato‘s election was affected by the illegally cast votes.
The trial court recognized the problem in its findings of fact and conclusions of law: “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.)” The court nevertheless concluded that, because of the “wholesale violation of the mandatory requirements of the absentee voting laws in this case,” there should be a remedy to prevent “a loss of
and asked them how they cast their votes. (Canales v. City of Alviso, supra, 3 Cal.3d at p. 128.)
Although the trial court‘s concern to achieve a “just” result is understandable, it was not entitled to disregard the mandate of
Nonetheless, the majority concludes that the trial court‘s ruling setting aside the election should be upheld. The majority‘s reasons for its conclusion are not convincing, as I shall explain.
I cannot agree with the majority‘s analysis.
Under Canales, a challenger claiming that an election was affected by illegal ballots need not rely on the ballots themselves or the voter‘s testimony as to how he or she voted in order to demonstrate how an illegal vote was cast. Instead, the challenger may use circumstantial evidence to show how an illegal vote was cast. Canales does not, however, authorize the invalidation of an election when, as here, the challenger has presented virtually no evidence as to how individual ballots were cast.5
Finally, the majority points to “widespread illegal voting practices . . . permeat[ing] this election--including fraud and tampering” and “nearly all of the candidates themselves, knowingly or otherwise, [taking] part in the malconduct . . . .” (Maj. opn., ante, p. 285.) These “illegal voting practices” may well independently require the invalidation of the election in this case. They do not, however, permit us to set aside the election because of illegally cast ballots. To do so requires, under
In concluding that the school board elections challenged in this case may not be set aside on the ground of illegally cast votes, I do not necessarily conclude that plaintiffs’ challenge to the election must be rejected. Although the trial court focused on plaintiffs’ challenge to the election under section 20021(d) (the casting of illegal votes), plaintiffs did also challenge the election under section 20021(c), which permits a challenge on the ground that “the defendant has given to any elector or member of a precinct board any bribe . . . or has committed any other offense against the elective franchise defined in Division 17 (commencing with section 29100).”
An election challenge based on illegally cast votes may be sustained only if it meets the standard set forth in
In this case, because it concluded that the election of each of the successful school board candidates should be set aside under
I express no view on whether the election in this case should be set aside under section 20021(c). Such a conclusion would be premature in the absence of factual findings by the trial court on the issue. Each candidate‘s involvement in offenses against the elective franchise must be separately examined, because under section 20021(c) a challenge may be sustained only if “the defendant” (i.e., the successful candidate) engaged in such
other candidates for the same office,” then it should equally “appear” that those other candidates should be declared the winners under
V
The majority speaks at length of the importance of safeguarding the integrity of the electoral process, and this proposition is beyond dispute. But as judges sworn to uphold the law we are not free to safeguard the electoral process in whatever way we think best; we must work within the statutory framework of elections laws. Under those laws, a court may invalidate an election on the basis of illegal ballots only if the challenger produces clear and convincing evidence of how those ballots were cast. In this case, plaintiffs failed to make the required showing, and therefore this one basis for invalidating the election--illegal ballots--is not available.
This conclusion, however, does not mean that an election must be upheld even in the face of pervasive voter fraud. The majority disregards another basis for invalidating an election, one that was pleaded and may well be available in this case: election law violations by the apparent winner of the election. Under the circumstances, the best means of preserving the democratic electoral process, without departing from the statutory framework, is to permit the trial court to determine the unresolved issues concerning the candidates’ responsibility for the election law violations that the trial record has demonstrated.
Appellants’ petition for a rehearing was denied July 15, 1993, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.