Sunday, November 14, 2010

Was there Voter Fraud in Santa Barbara County for the November 2008 election? Filed 10/14/10 Pappas v. Farr CA2/6,NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS,IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA,SECOND APPELLATE DISTRICT,DIVISION SIX

Filed 10/14/10  Pappas v. Farr CA2/6


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 





    Plaintiff and Appellant,



    Defendant and Respondent.

2d Civil No. B215239
(Super. Ct. No. 1304851)
(Santa Barbara County)

              The losing candidate in an election for county supervisor filed a contest to the election.  (Elec. Code § 16100.)[1]  The contestant alleged that the distributors of voter registration cards violated section 2138 by failing to return the completed cards to the county elections officials within three days; that persons who assisted others in filling out registration affidavits violated section 2150, subdivision (d) by failing to sign the affidavits; and that county elections officials violated the Help America Vote Act (HAVA), 42 United States Code section 15301 et seq., by failing to verify voter registration information.  The trial court denied the contestant's petition.  We affirm.
              In November 2008, Steven Pappas ran against Doreen Farr for the Santa Barbara County Third District Supervisor.  Pappas lost by 806 votes of approximately 35,600 votes cast.  A recount resulted in one additional vote for Pappas.
              Pappas brought the instant action against Farr to contest the election results.  The contest alleged illegal votes were cast in the 18 precincts in the University of California at Santa Barbara (UCSB) and Isla Vista areas.  It also alleged that errors by election officials affecting the 18 precincts were sufficient to change the results of the election.
              The trial court granted Farr's motion in limine to exclude evidence that sections 2138 and 2150, subdivision (d) were violated.  The court granted the motion on the ground that those sections did not as a matter of law provide a basis for challenging votes or the election results.
              The matter went to a court trial on Pappas's remaining claims.  After Pappas presented his case, the court granted Farr's motion for judgment.  The trial court found:  "Pappas has failed to produce evidence of even one isolated incident of fraud or other illegal voting in this case . . . .  There has similarly been a complete failure of proof as to any illegal votes cast by voters as a result of innocent mistakes, misunderstanding or ignorance of legal requirements, or other inadvertent errors by voters or election officials."
              Pappas contends the trial court erred in excluding evidence of violations of section 2138.
              Section 2138 provides:  "Individuals and organizations distributing voter registration cards pursuant to subdivision (b) of Section 2158 and who receive completed voter registration cards from voters shall return the completed cards to the county elections official or shall deposit the cards in the postal service within three days, excluding Saturdays, Sundays, and state holidays, of receipt from a voter."
              Pappas claims he has evidence to show that thousands of registration cards were accepted by the registrar of voters well after the three-day period.  Assuming that to be true, Pappas is not helped.  We start with the fundamental rule for construing the Elections Code:  "' . . . [N]o construction of an election law should be indulged that would disfranchise any voter if the law is reasonably susceptible of any other meaning.  [Citations.]"  (Otsuka v. Hite (1966) 64 Cal.2d 596, 604, quoting McMillan v. Siemon (1940) 36 Cal.App.2d 721, 726.)
              Section 2138 places a duty on individuals and organizations distributing voter registration cards.  But it places no duty on the voter.  Its obvious purpose is to ensure that the cards are presented to elections officials without undue delay.  A party distributing voter registration cards may be subject to criminal penalties for failure to comply with the statute.  (See § 18103 [every person who knowingly or negligently interferes with the prompt transfer of a completed affidavit of registration to the county elections official is guilty of a misdemeanor].)  But nothing in the statute or elsewhere in the Elections Code requires disfranchisement of the voter because the distributor has failed to comply.
              To the contrary, section 2102, subdivision (a) provides that a properly executed registration "shall be deemed effective" if it is postmarked or received by the county elections official on or before the 15th day prior to the election.  Section 2107, subdivision (b) provides that the "elections official shall accept an affidavit of registration" that is postmarked or received on or before the 15th day prior to the election.  We have no power to declare, contrary to the plain language of the statutes, that a registration so postmarked or received is not effective or should not be accepted.
              Pappas argues compliance with section 2138 is mandatory.  As Pappas acknowledges, the term "mandatory" has a particular meaning when applied to election law.  If an act goes to the substance or necessarily affects the merits or results of the election, it is mandatory; otherwise the act is directory.  (Rideout v. City of Los Angeles (1921) 185 Cal. 426, 431 (Rideout).)  A violation of a mandatory provision of the election laws voids the election.  In other words, a mandatory provision is one that is so essential to a fair election that failure to comply will result in the election being declared void.  (Id. at p. 430 [provisions prescribing minor details in form of ballot not mandatory].)
              A departure from a directory provision does not void the election if there is a substantial observance of the law and no showing that the results of the election have been changed or the rights of the voters injuriously affected by the deviation.  (Rideout, supra, 185 Cal. at p. 431.)  In other words, although not in every case essential to a fair election, violation of a directory provision will result in an election being declared void where, under the circumstances, it precludes "a considerable number of electors or voters from expressing their will at the polls . . . ."  (Id. at p. 432.)
              Pappas argues provisions of the Elections Code that establish deadlines are considered mandatory.  He relies on Barnes v. Wong (1995) 33 Cal.App.4th 390, 396.  There, the court held a filing deadline for ballot arguments must be strictly enforced.  The court reasoned that "hard and fast enforcement of filing deadlines avoids uneven and inconsistent administration of preelection procedures and is the most reliable way to ensure that everyone is treated fairly and equally."  (Ibid.)
              Certainly, fair elections could hardly take place without enforcement of deadlines.  But the Legislature established the deadline for voter registration in enacting sections 2101, subdivision (a) and 2107, subdivision (b).  Those sections provide that a voter registration is effective and must be accepted by the election official if it is postmarked or received on or before the 15th day prior o the election.  There is no reason for treating section 2138 as establishing another mandatory deadline.  Not only would such a construction be contrary to the plain meaning of sections 2101, subdivision (a) and 2107, subdivision (b), but the policy against disfranchising voters requires that we avoid any such construction.  Compliance with the three-day limit in section 2138 is directory.
              Pappas argues that even if compliance with the three-day deadline in section 2138 is directory, the trial court erred in excluding evidence of violations.  He claims that violations of a directory provision will render an election void unless there is a substantial observance of the law.  (Citing Rideout, supra, 185 Cal. at p. 430.)
              Pappas argues he has evidence to show there has not been a substantial observance of the three-day rule imposed by section 2138.  He misses the point.  The Legislature declared that compliance with the deadline established in sections 2101, subdivision (a) and 2107, subdivision (b) is all that is necessary for a valid registration.  Pappas does not claim that any of the challenged registrations were postmarked or received after the 15-day deadline established in those sections.  Thus there has been substantial observance of the law.  It follows that Pappas cannot show the results of the election have been changed or the rights of the voters injuriously affected by failure to comply with section 2138.
              Pappas contends the trial court erred in excluding evidence that would prove violations of section 2150, subdivision (d).
              Section 2150, subdivision (d) provides:  "If any person . . . assists the affiant in completing the [voter registration] affidavit, that person shall sign and date the affidavit below the signature of the affiant."  Space for the signature of the person who assists is provided for in box 12 of the affidavit.
              Pappas argues the provision is mandatory because the Legislature used the word "shall."  But as we previously discussed, the use of the word "shall" is not what makes a provision mandatory as the term is used in election law.  A provision is mandatory if it is essential to a fair election.  (Ante, at pp. 2-3.)  The signature of a person who assists the affiant is not essential to a fair election.
              Pappas contrasts section 2150, subdivision (d) with section 2159, subdivision (a).  Section 2159, subdivisions (a) and (b), state the requirements for those who, "in exchange for money or other valuable consideration," assist others to register to vote.  It also states:  "Failure to comply with subdivision (a) or (b) shall not cause the invalidation of the registration of the voter."  (Id. at subd. (a).)  Pappas argues the absence of similar saving language in section 2150, subdivision (d) creates by implication a mandatory provision.
              But the paramount rule that the Elections Code if possible shall be construed so as not to disfranchise a voter militates against any such implication.  The courts simply will not indulge in technicalities to void a fair election.
              Pappas argues that even if the provision is directory, a new election is required because there has not been substantial compliance with the law.  He claims there was no effort to comply with section 2150, subdivision (d).  But Pappas fails to comprehend the requirement of substantial compliance.  A departure from a directory provision will not result in a void election unless "it precluded a considerable number of electors or voters from expressing their wills at the polls, thus preventing a free and fair election."  (Rideout, supra, 185 Cal. at p. 432.)  The absence of the signature of a person assisting the affiant could not have prevented a considerable number of people from expressing their wills at the polls.
              Pappas contends the trial court erred in finding he has no standing under HAVA (42 U.S.C. § 15301 et seq.).
              Title 42 of the United States Code, section 15483, subdivision (a)(5)(A)(i) provides in part:  "[A]n application for voter registration for an election for Federal office may not be accepted or processed by a State unless the application includes," either the applicant's driver's license number or the last four digits of his or her social security number.  If the applicant does not have a driver's license or social security number the state shall assign a number that will identify the applicant for social security purposes.  Subdivision (a)(5)(B)(i)(ii) of the section requires the chief state election official and the official responsible for the state motor vehicle authority to enter into an agreement to match information in the database of the state's voter information system with information in the database of the motor vehicle authority to verify the accuracy of the voter registration information.  It also requires a similar agreement with the commissioner of the social security.
              The State of California uses a computer system, known as "Calvalidator," to verify voter registration information.  Pappas claims the county did not complete its verification process prior to the election.
              In Brunner v. Ohio Republican Party (2008) 555 U.S. __ [172 L.Ed.2d 4], the trial court issued a temporary restraining order (TRO) requiring the Ohio Secretary of State to update the state's voter registration database to comply with HAVA.  The Court of Appeals affirmed.  The Supreme Court in reversing a per curiam opinion stated:  "Respondents . . . are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [HAVA] in an action brought by a private litigant to justify the issuance of a TRO.  [Citations.]"  (Id. at p. 5].)  Based on Brunner, the trial court here determined that Pappas has no standing to enforce HAVA.
              Pappas claims that he never tried to assert any private right of action under HAVA.  Instead, he argues he has standing under section 16100 to assert HAVA claims.
              Section 16100 allows an elector to contest an election on any of the grounds specified in the section.  Pappas does not specify the ground on which he challenges the election.  Presumably, he challenges the election under section 16100, subdivision (d):  "That illegal votes were cast."
              But Pappas fails to explain how he can assert that illegal votes were cast under HAVA, without having standing to assert a private right of action under HAVA.  He cites no authority that construes section 16100 as conferring standing to assert rights under a federal statute that confers no such rights.  Pappas has failed to persuade us that section 16100 gives him standing to assert rights based on HAVA.  We need not determine whether HAVA only applies to contests for federal office.
              The judgment is affirmed.  Costs are awarded to respondent.
              NOT TO BE PUBLISHED.

                                          GILBERT, P.J.

We concur:

              YEGAN, J.

              PERREN, J.


J. William McLafferty, Judge

Superior Court County of Santa Barbara

              Theodora Oringher Miller & Richman PC, Kenneth E. Johnson and Stanley H. Green for Plaintiff and Appellant.
              Philip A. Seymour, Strumwasser & Woocher and Fredric Woocher for Defendant and Respondent.

[1]              All statutory references are to the Elections Code unless stated otherwise.

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