A San Diego Superior Court judge could change the outcome of last year’s Chula Vista City Council election if he decides next week that a dozen uncounted ballots should be added to the election tally.
San Diego Superior Court Judge Eddie Sturgeon said he is expected to make a decision Monday in the complaint against the San Diego registrar of voters and elected Councilman John McCann filed Jan. 2 by Chula Vista resident Aurora Clark.
California law states that the winner of an election must also be listed as a defendant.
Clark had originally challenged 16 ineligible ballots. But after reviewing the evidence for each ballot’s rejection presented at Registrar Michael Vu’s deposition, only 12 ineligible ballots are now in question.
Attorney John Moot, who represents Clark, said 10 of the 12 voters were not allowed to vote because they used a mailing or business address or made minor clerical mistakes in the address on their provisional ballots. Moot said two other votes were not counted because the voters placed their provisional ballot in an envelope for a mail ballot.
In court Tuesday, Moot argued that Vu’s duty as an election official isn’t to create policy, which Moot said Vu did by leaving those 12 votes uncounted.
“Mr. Vu is not a policymaker,” he said. “The law is very clear when it comes to the election laws in the state of California, the policy maker, the people who write the election laws is the legislature. Mr. Vu has no policy-making functions in this area whatsoever.”
According to Moot, Vu was not following the law as to when votes should and shouldn’t be counted.
Moot said votes should be counted if a voter’s proper signature is on the ballot that matches the signature on the voter’s registration, no matter if a voter wrote a mailing address, business address or home address on their ballot envelope.
Moot said several voters used a post office box as their mailing address and not a residential address, but that their signatures on the ballot envelope matched their voter registration signature; therefore, he said, those ballots should be eligible.
In Vu’s deposition, Moot said Vu acknowledged that when a voter’s ballot address does not match the voter’s registration address he views it as re-registering to vote at a new address.
The registrar of voters declared McCann the winner, defeating his opponent Democrat Steve Padilla by two votes with the final tally of 18,448 to 18,446.
McCann said he remains confident that the judge will keep the election as is.
“The law is on our side,” he said. “We won the election, we won the audit, we won the recount and we had a great day in court yesterday.”
McCann added: “And it’s sad that my opponent, Moot and Padilla, are trying to overturn the citizens of Chula Vista’s valid election.”
Timothy Barry, county counsel, said the registrar of voters threw out those ballots that listed a mailing address or business address because those addresses listed were “non-existent.”
Barry said every voter must include their residence address on the ballot envelope.
“A requirement of having and putting a residence address on the ballot envelope is something that’s required of all voters,” he said. “It’s just not being required of the 10 voters who cast the provisional ballots that are in this case,” he said.
He also said the ballot envelope had preprinted space to write both a residence and mailing address.
Moot said he does not know how the judge will rule. “I think it’s up in the air,” he said.
