SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO AURORA CLARK, an individual, Case No. 37-2015-00000121-CU-PT-CTL Contestant, STAEMENT OF DECISION v, | Judge: Hon. Eddie C. Sturgeon Dept: 67 JOHN McCANN, an DOES | through 10, Defendant, and MICHAEL VU, as the San Diego County Registrar of Voters, Defendant (CCP § 382). Statement of Facts A run-off election was held on 11-04-2014 for Chula Vista City Council, Seat 1. The San Diego County Registrar of Voters, through Michael Vu, certified the results of the official canvass declaring John McCann to be their winner of the election. Defendant McCann received 18,448 votes and Steve Padilla received 18, 446 votes Contestant, Aurora Clark's Statement of Election Contest is filed pursuant to California Blections Code section 16100(e), (1). and (g). These sections state in pertinent parts as follows: Any elector of a county, city, or of any political subdivision of either may contest any election held therein, for any of the following causes: ‘STATEMENT OF DECISIONeon ee ao 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a 28 (e) That eligible voters who attempted to vote in accordance with laws of the state were denied their right to vote. (f) That the precinct board in conducting the election or in canvassing the returns made errors sufficient to change the result of the election as to any person who has been declared elected. (g) That there was an error in vote counting programs or summation of ballot counts. Contestant alleges that there are at least an additional 15 legal votes cast that were not included in the certified vote total for the Chula Vista City seat 1. In the November 4, 2014 election, there were 2,644 provisional ballots cast in Chula Vista ‘The San Diego County Registrar of Voters rejected a total of 155 of the provisional ballots cast and did not include them in the official count for the following reasons: 1. Not registered to vote in San Diego County. 121 2. Listed P. O. Box as their residence address on their provisional ballot. 5 3. Listed a business address on their residence address on the provisional ballot. 15 4. Listed a non-existent address as their residence address on their provisional ballot. 7 5. Voted both a Vote-by-Mail ballot and a provisional ballot. 4 6. Listed an out-of-county address as their address, 1 7. Pailed to sign the provisional ballot envelope. 1 8. Signature challenge was sustained. 1 155 Of the 15 ballots challenged by Contestant, twelve involve provisional ballots and three involve Vote-by-Mail ballots. The 15 ballots challenged by the Contestant were not included by the San Diego County Registrar of Voters in the official count for the following reasons: 1. Listed a P. O, Box as their residence address on their provisional ballot. 4 2. Listed a business address as their residence address on their provisional ballot 3 3, Listed a non-existent address as their residence address on their provisional ballot. 3 4. Signature on provisional ballot did not match registration, 1 5. Voted both a Vote-by-Mail ballot and a provisional ballot, 1 Pay ‘STATEMENT OF DECISIONween nN 12 13 14 16 7 18 19 20 2 2 23 24 25 26 27 28 6. Returned Vote-by-Mail ballot but was not registered as a Vote-by-Mail voter. 2 7. Vote-by-Mail ballot was received late. 1 15 Contestant challenges only 10 of the 28 provisional ballots that were excluded because they contain a non-residence address on the ballot envelope. Contestant challenges only two of the four Vote-by-Mail ballots that were excluded because the voter was not eligible (did not apply) to cast a Vote-by-Mail ballot, Contestant challenges only one of the four ballots excluded where a voter attempted to vote twice in the same election, Conch ns of Law In the case at bar, the legal standard to be applied is clear and convincing proof of an abuse of discretion. The discretionary act of a public agency can only be set aside upon “clear and | convincing evidence” of an abuse of discretion. (Wilks v. Mouton (1986) 42 Cal. 3d 400.) ‘The Contestant in this case is only challenging 10 out of 28 provisional ballots where there are address issues on the provisional ballots. The Court finds that if it would grant relief to only | these 10 provisional ballots, it would create an unconstitutional disparity between similarly situated voters in that some voters’ ballots are counted while ballots of other similar situated voters remain excluded, On this reason alone, the Contestant’s Statement of Election contest will be denied, All voters must be treated equally and having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of, another. (Bush v. Gore (2000) 531 U.S. 98.) Moreover, the United States Supreme Court has determined that States have the power to require that voters be bona fide residents of the relevant political subdivision, (Carrington v. Rash (1965) 380 U.S. 89.) Under California Elections Code sections 349 and 2000, a voter may vote only in the precinet where the voter is registered and resides. The Court finds providing a proper voter residence on a provisional ballot is an essential element in determining a voter’s eligibility to vote in a particular jurisdiction. A post office box, a business address, or a non-existent address does not indicate in any way whether the voter currently lives in the proper electoral jurisdiction. Pa ‘STATEMENT OF DECISIONSeocwmraua uy 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the case at bar, 10 provisional voters indicated that they did not reside at their prior residence address while simultaneously providing an address (je. post office box, business address, non- existent address) from which a ballot could not be cast for the Chula Vista City Council election Where the new address provided by the voter is a P. O. Box, business address, or non-existent address that cannot be verified as a valid residential address, the elections official is well within hhishher discretion to reject any ballot not voted in accordance with the Elections Code. The Registrar of Voters did not err as a matter of law in excluding these 10 provisional voters challenged in Contestant’s lawsuit Contestant challenges two Vote-by-Mail ballots that were returned by voters who were ineligible to vote by mail. California Elections Code section 3001 requires a voter to apply and register to vote by mail by submitting an application for a Vote-by-Mail voter's ballot to the Clections official. Neither of the two individuals challenged by Contestant who returned a Vote-by- Mail ballot complied with the mandatory Elections Code procedures to Vote-by-Mail. The Registrar of Voters did not err in excluding these two provisional ballots. Elections Code section 3019 provides that upon receipt of a Vote-by-Mail ballot, the elections official shall compare the signature on the identification envelope with either “the signature on the voter’s registration or the voter's prior signature on a form issued by the elections official”. If upon comparison of signatures, the elections official determines the signatures do not match, the ballot shall not be counted. ‘The Registrar of Voters did not er in excluding a challenged ballot in which the signature on the Vote-by-Mail envelope did not match the signature on file for the voter. Nor did the Registrar of Voters err in rejecting a challenged ballot with no signature at all Elections Code section 18560(b) states a voter may not vote twice in the same clection, Ina challenged vote, the voter voted both by Vote-by-Mail ballot and by provisional ballot. ‘The Registrar of Voters did not err by counting the voter's Vote-by-Mail ballot and rejecting the voter's provisional ballot as a violation of Elections Code section 18560(b). Ae ‘STATEMENT OF DECISIONElections Code section 3017 provides that Vote-by-Mail ballots must be received by cither the elections official from whom it came or the precinct board before the close of the polls on Election Day. The Registrar of Voters did not err by rejecting a Vote-by-Mail ballot that was received by the Registrar of Voters six days after the Election Day. Contestant ergues that the Court should follow the procedure used in other counties in California for determining whether the challenged provisional ballots should be counted. The Court finds this argument does not establish that the procedure used by the Registrar of Voters in the Chula Vista clection was not rationally related to the government's interest in preserving the integrity of the election and preventing voter fraud. There is no dispute that only the residents of, the City of Chula Vista were eligible to vote. It is undisputed that the challenged ballots did not contain a valid residence address of the respective voters. Therefore, the provisional voters who did not include their residence address were properly excluded and no eligible voters were denied their right to vote. Due to the above findings, the Court finds the precinct board in conducting the election or in canvassing the returns, did not make errors that would change the result of the election. Also, the Court finds there was no error by the Registar of Voters in the vote-counting programs or summation of ballot counts, Conclusion ‘The Court denies the Election Contest and judgment is entered for Defendant. Dated: April 13, 2015 EDDIE C. STURGEON Judge of the Superior Court “Se STATEMENT OF DECISION