A San Diego Superior Court judge ruled Monday that a dozen ineligible ballots in last November’s election for a Chula Vista City Council seat will remain uncounted.
Judge Eddie C. Sturgeon wrote in court papers that every voter must be treated equally and because the contestant didn’t challenge every uncounted provisional ballot, it would create an “unconstitutional disparity” between similarly situated voters in that some voters’ ballots are counted while ballots of other similarly situated voters remain excluded.
There were 28 uncounted provisional ballots that had an address issue, 10 of those 28 were being challenged.
Sturgeon also adds that the registrar of voters is within his means to dismiss ballots that do not list a proper voter residence. He wrote that a proper voter residence is an essential element in determining voter’s eligibility to vote in a particular jurisdiction.
The registrar of voters disqualified these ballots in an election because some voters listed a post office box as their residence address on their provisional ballot, listed a non-existent address as their residence address on their provisional ballot, listed a business address on their residence address on the provisional ballot or that a signature on a provisional ballot did not match their signature on their voter registration.
Sturgeon said 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.
The decision keeps the election results in favor of elected Councilman John McCann, who defeated his opponent Steve Padilla by two votes — 18,448 to 18,446 — in what is believed to be the closest election in San Diego County history.
McCann said, with the judge’s ruling, he is hoping the case is finally resolved.
“This was the decision we were hoping for and the decision we expected as the law was on our side,” McCann said. “Hopefully this decision will put the issue to bed now and not continue to further burden the taxpayers with hundreds-of-thousands-of dollars in legal fees.”
However, attorney John Moot said he plans to file an appeal as early as Tuesday.
“It’s an important civil rights issue and these cases ultimately get decided in the court of appeal,” he said.
Moot said he will seek to appeal this to a three-panel judge based on civil rights issues with denying citizens of Chula Vista their right to vote.
Moot has 10-days to file an appeal.
Chula Vista resident and poll worker Aurora Clark filed a lawsuit last January challenging 16 uncounted ballots, because she previously said the Registrar was denying those voters their right to vote.
Attorney Brian Hildreth, who represents McCann, said the judge’s decision gives voters assurance that the ROV is doing its job properly.
“I think even more importantly the court gave a vote of confidence to the registrar of voters and his entire elections operation and that should give voters some sort of security that the elections in San Diego are being conducted properly,” he said.
Hildreth said the law allows the recovery of attorney fees from the plaintiff. He said he is still considering whether he will have Clark pay his attorney fees.
An attorney for the registrar of voters did not return phone messages seeking comment.
