Rosemead Election Ends?

I spent my Friday morning at the Stanley Mosk Los Angeles Superior Courthouse, watching the end of our city's election. You'll recall the voting happened back on March 3, and the recount wrapped up about 16 days later. Over the course of the events, from the unofficial count, through the canvass and the recount, the margin between John Tran and his getting reelected shrank from about 100 votes back on the evening of March 3 to five votes by March 19.

Along the way, we also realized that over 100 votes cast by absentee voters were tossed out (figuratively tossed out--there are some small-minded, overly literal folks out there, so when we use standard figures of speech, sometimes we need to spell them out for those individuals).

The thing is, most of those ballots were tossed out "automatically," by a machine that compares signatures on record with the one you put on your envelope (if you voted absentee). A lot of people sign their name somewhat carelessly when it comes to things like credit card receipts, driver's licenses, and, yes, voter registration, absentee ballot applications, and absentee ballot envelopes. We probably figure that as long as a person sees a general similarity between the two, our vote will be counted.

Well, based on the past few weeks, we've discovered this is not the case. If you've changed your signature over the course of the time between when you voted and when you registered, your vote may not be counted. [It appears to be particularly sensitive to changes in the first letter, so if you shift between, say, a cursive "A" or a printed "A" at the start of your name--well, don't expect your vote to be counted. If you are sometimes inconsistent in the order of your "American" name and your (for example) Asian name, your vote will also "automatically" be tossed.

We have also discovered that, while your vote being tossed is automatic, you will NOT be informed of this fact. You may have voted absentee in three or four or more elections, and, unbeknown to you, your ballot has never been counted.

So, back on March 19, during the recount, the Rosemead city clerk was asked if she would review the many ballots that were automatically tossed, to see if there was a likelihood that some of the ballots were, in fact, improperly excluded. She refused.

That was the issue at hand in court this week, in the case of John Tran v. Sandra Armenta and the City of Rosemead.

Of course, I'm under no illusion that John Tran was motivated primarily by anything other than the desire to retain his elective office. However, I have no problem with his strategy--making sure that every valid vote that was cast was counted. Without his lawsuit, none of the facts above would have been made clear to the voters of Rosemead.

This is exactly the opposite of others, who claimed to be concerned about people's voting rights, but who filed a lawsuit had the effect, not of counting valid ballots, but of preventing ANYONE from being able to vote. STOPPING an election is never in the interest of a democratic republic.

Now, which of the excluded ballots were to be counted? The judge adopted when seemed to be referred to as the Wainwright standard. It sounds to be the election law equivalent of the federal Chevron standard. That means that, when a judge is reviewing the actions of an administrative official who is exercising his or her discretionary powers, the judge will tend to defer to the bureaucrat's discretion and expertise. Only if the bureaucrat's action is determined to be "arbitrary and capricious" will the person's decision be overturned.

Under that standard, the judge (James Chalfant) determined that, for four of the excluded ballots, despite the "automatic" rejection by the county registrar-recorder and the city clerk, the signature on the ballot clearly matched that on the registration. It would be arbitrary and capricious to reject those four ballots.

For approximately 24 other ballots, the judge determined that the level of matching was a judgement call. And, although there were several where he said that, if he were the city clerk, HE would have included them in the count, he was going to defer to the city clerk's judgement.

Personally (though, of course, I am biased), I feel the judge should have been less deferrent to the city clerk's judgement. During the recount, the clerk made a blanket determination that she would not look at ANY of the ballot envelopes and registration forms to check for ballots that were being improperly excluded. In my opinion, that was an arbitary and capricious decision. In so being an arbitrary and capricious decision, it was no longer subject to the Wainwright level of deferrence. If the judge felt the signature match was close enough, that should have been enough to let those envelopes be counted and the ballots counted.

Nonetheless, the judge decided to maintain his Wainwright level of discretion and did not allow any more votes to be counted.

The end of this long tale is to say that now, if anyone ever asks you if one vote can make a difference, you can tell them it can, and use the Rosemead City Council election of March 2009 as your example: Sandra Armenta retained the seat by ONE vote, with 2099 votes for her, to 2098 for John Tran.

Nonetheless, I'm proud of the fact that John Tran was willing to take a great deal of criticism and costs upon his shoulders to do his best to see that the voting rights of the citizens in our city were properly protected.