Correa Folds His Election Challenge, but Refers Evidence of Fraud to OCDA — i.e., Correa Folds

Correa folds

Lou Correa doesn’t think that one reason for going forward with a court challenge is worth the time and money. But he should think that the other reason IS worth it.

1. Evidence of Election Fraud Found, but is Too Burdensome to Pursue

Former State Senator Lou Correa’s challenge to the election of Andrew Do has ended with a bang — the sound that might be made by his dropping a box full of evidence onto his own feet — both preceded and followed by a whimper.  The 43 vote margin of Do’s election to the First Supervisorial District’s seat stands.  The Register (well, “City News Service”) reports that Correa said that “it would be too costly to try to overturn the results in a court,” but that he will turn over the contents of his investigation to Orange County District Attorney Tony Rackauckas for … well, actually, it’s not clear why, other than the optics of it.

It’s not as if there’s no cause for serious concern.  Correa claims to have found evidence that:

A check of five precincts Do won handily with a significant number of absentee ballots showed some instances of possible fraud….

“In these five precincts alone, we found more than a dozen households in which it was apparent from this comparison that two or more ballots had been submitted and signed by the same person under different names…. One household in Garden Grove had 10 different voters registered at that same address, with at least two of the returned and counted vote-by-mail ballots, and possibly as many as three others, clearly having been signed by the same person; at least two ballots were signed and returned by a single person from another Garden Grove address that supposedly had six different registered voters residing in the same household.”

While this is EXACTLY THE SORT OF THING that a District Attorney might be expected to investigate, the likelihood of Rackauckas (1) doing so, (2) filing a court case over it, (3) prosecuting it more effectively than he did when taking a fall in the case of the Kelly Thomas killing, and (4) demanding sanctions punitive significant enough to stop anyone in the county from doing it again is exceedingly low.  If it were Democrats (other than Mayor Miguel Pulido) facing such accusations in Santa Ana, that might be a different story, but the endorsed Republican candidate in Little Saigon and his supporters had every reason to expect to be safe pretty much no matter what.

Arguably, the Democratic Party of Orange County might have standing to bring a case in Correa’s place — or at least to file a complaint with the state’s Fair Political Practices Commission, and possibly the U.S. Department of Justice — over such deeply illegal practices.   (More on THAT in section 4.)  But that too is unlikely.

This result was not only predictable, it was predictedright here, since the election returns first rolled in.  And it was also predicted in private phone conversations I had with various people from the district whom I wanted to initiate (before Correa decided to do so) and then join (once Correa filed, given the likelihood that he would not see it through) the election challenge.  (I was willing to work for free on this one, with fees coming from the defendants only if we prevailed.)  But people wanted to leave the matter in Lou’s hands — and so here we are today.

2. The Dual Purposes of a Challenge

There were two possible reasons to go forward with a challenge.  The first was to reverse the outcome of the election if it was found to have been won by fraud.  Despite my antagonistic relationship with Correa, I wanted to see that happen.  But for me, the second motivation was the greater one: if people are cheating in Little Saigon’s elections — or elections anywhere in OC, but Little Saigon is where complaints about it seem to come most thickly — I want it to stop.  I’m motivated there both for good government reasons — I want honest Republicans to be the ones who win primaries, not ones willing to be complicit in wrongdoing — and for partisan ones: if the Little Saigon political machine really does work by corruption, then in the future it threatens the Congressional seats of both Alan Lowenthal and, conceivably, Loretta Sanchez.

Even those partisan reasons are really “good government” ones.  If there were accusations of substantial amounts of cheating among Democrats in Santa Ana, I’d have no problems with Republicans going after it, because I don’t want Democrats who cheat to have an advantage in primaries.  But, by and large, there aren’t — as the low turnout in Santa Ana suggests, either Democrats there either don’t want to cheat or can’t figure out a way to do it.  By the same logic, as a Democrat I should be completely unwilling to allow Republican cheating to flourish in what would otherwise be a potentially winnable part of OC.  I mention this low-minded motivation to act not because I need it personally, but because it should be enough to motivate Democrats — local, state, and even national given that two Congressional seats could be determined by it — to act.  For Democrats not to spend a small fraction of what they would spend on the Congressional, State Legislative, and Supervisorial races in this area pursuing a court challenge is simply insane.  But the same sorts of people who a year ago were saying that Solorio and (if he lost) Correa were locks are the ones who will not be motivated to act now because “we don’t have to worry, they’ll never get Lowenthal.”  (One reason that I have a fair number of Republican friends here is that they get how politics works and, in between giggles, will sympathize with me about this sort of wackiness.)

Of course, whether a court case would be worthwhile would depend on whether it had a chance of winning — so let’s see what Lou Correa’s investigation found.

3. What Team Correa Found

Correa did not find evidence of significant tabulation errors by the Orange County Registrar of Voters, which was a near-certainty from the start.  He complimented Neal Kelley for running a great operation there, perhaps the one thing on which everyone (me included) can agree.  But, of course, tabulation errors were never — or at least never should have been — the point.  If the election was to be overturned — let alone if any corruption were to be flushed out of Little Saigon’s political ecosystem — it would have to come from pursuing leads regarding voter and election fraud.

Here are more potential problems that Correa found that didn’t much matter — which, incredibly, take up the first half of the Register’s story before we get to the important stuff, which is in the boldface quote that I’ve posted above.

  • On about 200 absentee ballots, voters didn’t sign the back of the envelope.  (The ROV’s Office correctly rejected these; by law, these aren’t supposed to count.)
  • On about 200 absentee ballots, voters didn’t sign the back of the envelope, but they did provide their name and address elsewhere on the envelope.  One could argue that these should or shouldn’t count; the problem is that about 12 of them were counted and the rest were not; Correa rightly notes that all should have been in either one category or the other.
  • For 177 absentee ballots, the envelope was signed and dated by the voter before the election, and arrived within the three-day limit set by the law Correa authorized, but were postmarked the day afterwards.  These were, properly, rejected.  Correa has said that the instructions regarding the postmark date were misleading, but this would only call for future changes.  (Note, though, that I’d want to look and see how these ballots were distributed by location and voter ethnicity; one concern that I half-jokingly expressed on election night is that someone with a machine that prints postage might have been able to alter a postmark date even after the last mail pick-up on Tuesday.  A significant statistical discrepancy here wouldn’t be conclusive, but it would be suggestive.)
  • Improperly tallied ballots included 17 provisionals that counted despite the voter’s failing to sign the declaration affirming their eligibility and 13 absentee ballots where a voter failed to sign their application to vote absentee.

Now here are some more interesting problems:

  • About 20 signatures on absentee ballots did not match the voter’s signature on the affidavit of registration.  This could be a simple error (broken wrist, etc.), or could be something more serious.
  • A week before the election one person collected 27 “emergency” absentee ballots — which are restricted to being used only in narrow exceptional circumstances, such as someone in a nursing home — and delivered them to voters as young as 20 years old, who are likely not to have been eligible to use them under the exceptions.  Misuse of emergency absentees is cheating.
  • About ten voters tried to cast both an absentee ballot and a ballot at the polls.  (It’s not clear from the article whether any succeeded.  Obviously, that’s cheating if it’s intentional.
  • Over 40 provisional ballots were cast by voters who were not registered to vote in the First Supervisorial District prior to the election — some even having voted outside of the district in Nov. 2014 — but claimed to have moved into the district since then.  These votes did count.  Those claims could be true, but also could be fraudulent, and would bear individual investigation.  (Individual errors do happen — but so do organized conspiracies.)
  • But the big one, as noted in the quote at the top of the story, is that in JUST FIVE precincts won by Do, two or more ballots were signed and submitted by the same person under different names.  THAT is a big way that fraud can happen.

4.  Why Correa Didn’t Go Forward With Litigation — and Why Someone Else Should

Correa has decided not to pursue a court case because:

  • Trying to overturn the results in court would be “extremely expensive and time-consuming.”
  • Even if at least 43 fraudulently cast ballots were identified, Correa “would still have the burden of establishing for which candidate those illegal votes were cast.”
  • The judicial process might take longer than the 20 months remaining before Do can run for reelection, shortly before the term expires.

I take the cost concerns seriously, but the rest of the excuses apply solely to overturning the results of this election, when the much more important motive is to prevent any abuses like this from happening again.  Overturning an election is only one possible remedy to be sought; monitoring of various operations is another.  I understand that it is probably Correa’s overriding concern as a candidate, but it should not be his sole concern as a Democrat — or as a small-d democrat.

By a fortunate coincidence (from my perspective, at least), the monthly DPOC Central Committee meeting is tonight.  As I said, I think that the DPOC would have standing  to sue– at least with Correa’s cooperation, and possibly without it — to pursue these charges of election and voter fraud — and to write its own letter to the OCDA giving him six months to initiate litigation or give DPOC the right to do so.

So, here’s what I’m going to do:

I’m going to go to the DPOC meeting and try to put an item on the agenda that would establish a special committee to — by noon on Monday, March 9 — determine what if any steps the DPOC can take to preserve the right to go to court to challenge not only the result of the election but to sue over the apparently fraudulent practices identified in Correa’s investigation, including consultation with top election law attorneys and consultation with potential donors.

After all, if we let people engaged in fraud get away with it, they’ll just continue doing it.

I’ll let you all know how it goes tonight — if it goes at all!

UPDATE:  Meeting’s over; nothing to report yet except for a gratifyingly thoughtful discussion.

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.)