Chula Vista City Council Vote Count Upheld

Our top story, the election of 2014 is all but a distant memory to most of us but not for the man battling over city Council seat number one and Chula Vista. Republican John McCann won the election by a razor thin margin of two votes. He also grant one a recount in December. Democrat Padilla and his supporters are not giving up, this week they lost another challenge and the judge ruled against their claim that 12 ballots deemed ineligible should have been counted. The attorney in the case said he will appeal the ruling. Jointly to discuss his ongoing dispute is attorney Bob Hopley, no stranger to election ballot battles himself, he represented former San Diego Mayor Murphy in the 2000 recount involving Donna Friday. Welcome to the show. Thank you for having me on. Why did the San Diego calendar County register of voters say that he ruled the ballots in question ineligible? I think it is helpful to have background. In any election, approximately 5% of the voters show up at the wrong polling place. And so the registered voter in most instances, but they are not at their polling station. What happens in that instance since they are not recorded as someone who should be recorded there, and you are supposed to vote at Europe polling place for your residence is located, you are allowed to cast a ballot by law, then you place that in an envelope that certain information on the envelope, and the registrar has to determine from the envelope if you are a registered voter or not. If that determination is made, which may be several days after the election, your envelope is opened, the ballot comes out and it is counted. About 5% of the time the registrar comments these are not registered voters and so the ballots that are at issue in this election challenge were a segment of what are called these provisional ballots that the registrar had said were not eligible to be counted. Now, there were about 155 total provisional ballots the registrar said should not be counted in Chula Vista in this race, 121 of those were people who were just not registered at all. Then there was the smaller segment of about 30 ballots the were at issue and ultimately 15 were selected by the challenger to go to court, and the 10 key once it became an issue here were once in which on the provisional ballot envelope, where the voter is asked to put their current residence address, those 10 individuals either listed a PO Box, a nonexistent address, or a business address. Based on that the registrar determined this person was not eligible to vote because you cannot vote at such an address and through those out without ever looking at the ballot. Right. The point though that the Padilla camp made was the ballots should have been counted, as I understand what they were saying, because the signatures matched. The signatures matched on the provisional ballots and on the signature that the county or registrar of voters have for that particular voter. If you going to vote into your polling place you do not have to provide proof anymore that you are still registered. You are assuming that you are because you are there but you have to assume that if the signature matches you are allowed to vote. On a mail-in vote that is all they compare are the signatures and the registrar apparently conceded in this case it was not required for the voter to list their residence address. However he does have been listed on the envelope and it does say current resident address. Therefore when somebody put down the PO Box or their business address or nonexistent address, he was assuming, so he started with an assumption which is the key part of the case on the challengers standpoint, he started with the assumption that person had moved to cut they were no longer listing the address the voter registrar showed them as being at. There is a failsafe in our law now which is fairly recent that says if you have moved but you have not reregistered, so long as you can show the new address and it is in the jurisdiction in your signature matches, you are allowed to vote even though you did not reregister. He was assuming that the word people registered at a new address and since the red the address is not a valid voting address the disallowed it. And there is also the issue of why these particular provisional ballots were a part of this lawsuit, and were being challenged by the Padilla camp, as opposed to all the others you already mentioned that were actually in existence. That is interesting as well and that is a more significant point. John Moot with the attorney representing the challenger and John was a member of the Chula Vista Council he won his election by 11 votes, there were a lot of close elections down there and so he understands the concept of a close election. Before he got involved in the case an attorney out of Los Angeles had started a recount. Recounts are not particularly effective because you tend to get more or less the same count, $100,000 in a machine odds are he will get pretty much the same result. Akita overturning elections as close is to go on five ballots that were not counted so you don't want to recount ballots that were, you want to look at the new ballots and seagoing and look at provisional ballots and I think that John's predecessor had identified a select group of about 27 provisional ballots out there that had this problem. That only selected 15 of the 27. Now my guess is, and I don't know this, you want to select ballots that you think will be for your candidate. My guess is they were running a registration search to determine what to the Democratic voters were or Republicans, I don't know that for a fact but I think that happened before Mr. moved got into the case. Someone called out these 15 particular ballots in the initial ruling of the judge in this case, even before he got to the issue of whether Mr. Moot made the right decision or not, to only address 15 of the 27 ballots with this problem would be another Bush versus Gore problem in that goes back to the presidential race in 2000 where they started a recount in the state of Florida but they were using different standards in different counties. So the United States Supreme Court said that I would violate the equal protection clause of the Constitution which says everybody has to be treated the same. In this case, the judge ruled and this was his principal ruling, that to count only 15 of these but not the other 12 would treat those other 12 differently. It was too late in trial to change the request, Mr. Moot an argument during trial did say to the judge will stipulate that all 27 can be counted. The other attorneys would not agree to that, nor do I think the court could have done that, because election challenges have to be filed within strict timelines and this was beyond the timeline. This particular challenge focused only on 15 of those ballots and I think that was the dispositive ruling by the court although the judge did get the specific envelopes. And the specific envelopes he got into the did confirm that San Diego registrar of voters Michael Vu was correct and excluding those provisional ballots because of the improper addresses. You mentioned Gore, everybody knows that is the quintessential election mess up that I think we all can point to hear it would you say the election laws have been substantially straightened out since that 2000 election? I don't know if that was an election mess up or not, the state of Florida distinct from California, they allow people who are counting votes to look subjectively at a ballot. If you recall in that case, people were poking holes in things and say they were hanging chads. In some counties of three corners were separated and one was hanging they would count it and in another county it was to corners. And so what you had was you were applying different standards, but in one election. And what the Florida Supreme Court eventually did was order a recount of all ballots. Everybody thinks the United States Supreme Court decided that case. They did not. The media came in after that case was decided, they paid for ended their own recount of every ballot in the state of Florida, Bush still one. It did not change the outcome of the election but with the US Supreme Court ruled was in a recount like that you would have to apply every standard, otherwise people's votes might count in one county and not on the other. California has always followed a strict compliance with the letter of the law so when we did the Murphy Donna Frye challenge we had enough voters registered in Donna Frye's name clearly indicating they wanted to vote for her but they did not check the box. Now, Dick Murphy's name was typed on the ballot, but even if you wanted to vote for Dick Murphy did not check the box it was not a vote. Let me ask you more about that and I certainly do not want to replay the Bush versus Gore, there were a number of ways those votes were counted by the media and others in the ultimate winner is still somewhat in dispute, but let me go to that Supreme Court case about the way the ballots are counted and how all the ballots should be counted the same. When the Supreme Court got into it they were very, very particular about the fact that their ruling was only for that particular instance and was not supposed to be used in any other election. That was much noted, so how does that come down to actually change the way that people in county registrars across the country actually handle election? Bush versus Gore was in fact limited to that case but the equal protection clause applies whether or not you cite Bush versus Gore, you certainly go back to the equal protection clause. One of the things that we try to do, and I think to a fault, is to count as many votes as possible and as Mr. Moot made the point for his client, if there is any doubt you should resolve in favor of the county and so orange county for instance with a count of these votes because the registrar would count the votes that had this address on it. You're not even required to have the voter on a provisional ballot put in the address or current address. You only need to get them to certify under oath I presume that they still live at the address they shown on the voter rules when they sign their name. Waiters equal protection come in? Visit different jurisdictions, and Florida you are doing a recount for one election with different standards, here everybody at Chula Vista was held to the standard and everyone in Orange County had their standards so you don't have an equal protection issue. I think it is technicalities like these it make some voters per -- frustrated with the system. Why do you think these are for into the voting process? It is interesting, except for close election like this, this goes on in every election and I was stunned to look at this and I found out that approximately 5% of all ballots are provisional. That happens in almost every election but some point you have to rules because what you want to do is have somebody voting or you don't want to have somebody voting who should not be an you want to have a level of accountability and all voters and in this particular case, whether you were supposed of done it or should have done it, they were asked to list their current residence or address and a PO Box is not a residence address in most cases. It is very important, we decide who are leadership is through these elections, a very close presidential election and a very close city Council election, 70% of people do not vote in an off year election like this. We do have to make sure that people are voting should be voting and one of the problems, I think, and I think the real flaw in our system is we let everybody vote by mail now. Think about that concept, where is the secrecy of the ballot? You may not want to vote and I may want to vote for you so just give me your valid ballot Maureen or maybe a spouse wants to dictate to their spouse how to vote, an employer may know that 80% of his workers do not vote or may not be registered and he or she gets on the registering cast their ballot. I think we've had a real breakdown and accountability and responsibility and voting and I think we ought to make the laws much stricter. And yet other people might argue that anything that gets that number of voters hire in elections is good for democracy. It is good for democracy of people take the effort to register to vote and it is good for democracy they educate themselves but it is not good for democracy we have uneducated voters and not good if we have that or fraudulent votes. You have to draw a line in balance all of those competing interests. One more quick question, this occurs to me and it has been going on since last November, the DS/McCann and of course Councilman John McCann is the Councilman but he is still being challenged in court. This is going to go to the appeals court, so says Mr. Padilla's attorney. There is an awful lot of time and money being spent on the outcome of this one Chula Vista city Council seat. Why do you think that is happening? I am not sure how much money, you have to remember the person who sits as the registrar, the County Council spend that money and I assume it is not Mr. Padilla's attorney but any let poor. There may be some pro bono work going on as I suspect that Mr. Moot is a supporter of Mr. Padilla. I do not be there is a huge sum of money being spent but it is important to people, the people involved it is very important to them and it is what they do for living and for the people who vote, it is important to them because it determines the leadership of the city. I have been because the San Diego attorney Bob Ottley, thank you much. Thank you.