A civil lawsuit filed in San Diego County Superior Court Friday challenges John McCann's win over Steve Padilla in November's Chula Vista City Council election.
The vote was initially tied, but after a standard review McCann was declared the winner by two votes. A recount was requested on Padilla's behalf but he suspended it and the results were certified Dec. 19.
The suit was filed by Chula Vista resident and volunteer precinct worker Aurora Clark against McCann.
The suit says 15 provisional ballots were not counted because the residence addresses on the ballots' envelopes did not match the voters' registrations.
"There are at least an additional 15 legal votes cast that were not included in the certified vote total for the Chula Vista City Council seat, a sufficient number to change the outcome of the election," the lawsuit says.
The suit does not identify the voters by name.
The lawsuit asks the additional ballots be counted, and if their votes put Padilla ahead, that McCann's win be overridden. It also asks for attorneys' fees and "other, different or further relief as the court may deem just and proper."
Attorney John Moot filed the suit on behalf of Clark on Friday, but Moot said it won't appear on the court's website until Monday because of a delay in the court's electronic filing system. He provided KPBS a receipt that shows it was filed at 2:35 p.m. on Friday.
A former Chula Vista city councilman, Moot said his own election was close. He won by 14 votes.
"It's my belief that when you show up on Election Day and cast a ballot, it should be counted," he said in a phone interview.
Moot said he was put in contact with Clark, who agreed to be the party to bring the suit against McCann. Moot said the ballots are unopened, so it is unclear which candidate the votes would favor.
According to the lawsuit, "[t]he errors and conduct described...have unlawfully and unconstitutionally disenfranchised eligible voters in the City of Chula Vista, and have denied them their fundamental right to vote and their rights to due process and the equal protection of the laws."
In response, McCann said his win was legally certified by the San Diego County Registrar of Voters Office and that it's time to move past the election.
"We won the election, we won the audit, they stopped the recount because I was gaining votes and now they are going to waste 10s of thousands of taxpayer dollars on a frivolous lawsuit," McCann said. "It’s time to focus on the needs of Chula Vistans and move forward."
Brian Hildreth, attorney for McCann, said the addresses on some of the ballots in question were voters’ business addresses, which did not match their residence addresses on their voter registration. Hildreth said state elections code does not allow a voter to cast a ballot for a business address.
