Measure J ‘Recount’ Over Without a Single Ballot Recounted; Certification Stands, But Is Litigation Possible?

Jays Safe!

J’s Safe! (At least pending the possibility of an official appeal.)

Remember that impending big long Orange County recount of Measure J that some bloggers told you was coming, following the return of updated results from Los Angeles County?

It didn’t happen exactly the way one might think.  In fact, technically one might say it didn’t happen at all — unless enough of it happened to suit the purposes of those who had sought it.

The Recount That Wasn’t is Over; the OC Registrar of Voters’ certification of the election results stand.  And yet the behavior of the people at the OCROV’s office today suggests that while the recount is over, the controversy may not be.  If the Measure J opponents are not going to use a recount to try to get their way, their options are few: some arcane practice invoking the occult, some sort of military coup, or, most extreme and unbelievable of all, litigation.

Here’s what I’m told happened today at the corner of Grand and McFadden in Santa Ana, and the possibility that I might be messing up a detail or two in the translation process can’t be ruled out:

  • there were about 10,000 provisional ballots cast in the NOCCCD areas

  • these ballots included some that the ROV had counted and some that were not counted (presumbly due to serious irregularities in the ballot envelope) and still unopened

  • the anti-Measure J forces gave all 10,000 envelopes of them a cursory look

  • for about 300 of those provisional ballots that had been cast, they gave the envelopes a more intensive look

  • the Registrar’s determination of whether the ballots were legitimate or not, already having been made, was not challenged

  • they could have recounted some or all of the ballots, just to test the waters, but didn’t

  • they could have challenged some of the unopened VBM ballots and/or provisional ballots, but didn’t

  • and that’s why the certification stands

Neal Kelley had all sorts of information about what sorts of ballots can legally receive what kind of treatment, but I couldn’t write as quickly as he could explain and didn’t want to hold him up longer than I did.  Besides, it’s pretty technical stuff, which I eventually might review by myself.

I’m also informed that Tim Whitacre, who had been slated to lead the Tony Bushala recount that didn’t happen, was present — but in a supporting role — for the Glenn Vonhadel recount that did.

What does the above suggest?  Call me a suspicious lawyer type, but I think that someone’s gearing up for litigation.  Now maybe they just gave up, but if they brought in enough legal firepower so that Whitacre wasn’t leading the effort, that doesn’t seem likely.  More likely: they used their initial survey of the territory to gather the intelligence information that they need, including information about voters that they might want to challenge.

That, from my perspective, is cause for alarm, because it suggests the possibility of “cherry picking” voters not entirely on the basis of thinking that they should not have voted, but on the basis of wishing that they should not have voted.  Most crassly, for example, it would be possible for them to have collected information on ballots that had Latino or Asian names, which they perhaps thought would be more likely to favor higher taxes for education at community colleges.  Or they could have been looking to find ballots only from more transient student precincts around Fullerton.  Knock out a good number of those ballots and there would be a chance of reversing the outcome.

And perhaps by not having a recount, they eliminated the opportunity of NOCCCD to “cherry pick” unopened provisionals that they’d like to see added to the total — which is my presumption of what must have been going on in Los Angeles County.  (All I know is: the numbers counted in LA kept on rising — and I don’t see how that happens other than by counting uncounted ballots.)

All of this raises the question, though, of “then now what?”

What I think could happen at this point is “urban warfare” — fighting a battle from house to house, or in this case ballot to ballot, winning territory a little bit at a time.  This could serve one of a two obvious functions: (1) to overturn the outcome or (2) to delay the outcome, because even a delay of some months (as seems plausible, given how litigation can go) could save Vonhadel and his landlord allies a lot of money simply be delaying the start of issuing the bonds and the tax hike that comes with it.

I doubt that I know California law in this respect as well as whoever Vonhadel brought in for yesterday and today — although I may end up learning some in following this process — but three sorts of questions occur to me based on general legal principles.  So, realizing that I may be way off, here’s what I’m looking at regarding any possible litigation: questions of (1) administrative exhaustion, (2) availability of remedy, and (3) equal protection.  Of these, equal protection is the sexiest, but the other two are probably more formidable weapons for NOCCCD, if it comes to that.

What would happen, presumably, is that Vonhadel’s team would go to court to seek a temporary injunction against taking out and/or spending the bond money that, as of this moment, seems to have been approved by voters.  One hurdle to clear for obtaining such an injunction would be their “probability of success on the merits” when the matter went to a full-blown trial, so many of the critical issues would get their initial airing pretty early in the game.

“Administrative exhaustion” is a concept that says that, before you go to court, you have to have already tried all of the steps short of litigation that the government agency in charge can reasonably require of you.  Miss a step, get kicked out of court.  So my first question is whether not going ahead with the recount means that they have failed on the criterion of exhaustion.  At first blush, it seems to me that doing a recount, rather than dragging ballots and all into court, should be required — but perhaps there is case law to the contrary.   They may argue that doing a recount would have been futile given the Registrar’s reliance on his previous determinations — although to exhaust their remedies they sure better have already asked him — and perhaps that’s enough.

But what if they were able to able to identify, say, 100 provisional voters who voted despite being outside of the district?  You might think that they could then just disqualify their votes — but it may not be that easy.  The ability to do so depends on whether those identities can be tied to particular provisional ballots — and I have at least thought that the system is set up so that they can’t be.  If there’s no remedy available for even a legitimate problem that they uncover, then they lose the lawsuit because it has become moot.  Again, there may be ways around that of which I am unaware, but this is at least where I’d expect to see a hurdle for them to clear.

Finally, there’s equal protection.  Go back to the example — which I have no reason to think that they’re doing — of collecting only what struck them as Latino and Asian names, and letting them be the ones that (if they get past the above two problems) face a “hard second look.”  Well, what that would mean is that we have two classes of citizens: ones who, due to their race, are more like to have their ballots disqualified because of such a second look and those who, due to their race, are unlikely to face such a second look.  And that would arguably — I think should surely, but all I can fairly say give our courts today is “arguably” — violate the Fourteenth Amendment; in fact, equal protection — not even based on race! — was the basis for striking down the “partial recount” of Florida in 2000 in the famous case of Bush v. Gore.  The Supreme Court at the time said “we’re doing this now but don’t ever do it again,” but lower courts have at times rejected that as “not how things work in our system,” which it indeed is not.

If the Vonhadel team can’t overcome these hurdles, then NOCCCD can persuasively argue that their only reason for the litigation is to delay the imposition of the property tax hikes for as long as possible — and that is not a valid reason for a lawsuit, so they should be able to win at an early stage.  My sense for now is that either Vonhadel’s lawyers know something (or many somethings) that I don’t about how such litigation can proceed or I’m going to enjoy learning something new.  That, or perhaps — as at the end of the first day of counting in Garden Grove — the story is already over and we just don’t know it yet.

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)