The Case of the Ballots That Weren’t Counted : Absentee Voter Law at Issue in Court Battle Over 1983 Pomona School Board Election

When a large, tamper-resistant suitcase containing 354 unopened absentee ballots was hauled into Los Angeles Superior Court last month, it looked as if the disputed 1983 Pomona school board race had finally been laid to rest.

After 3 1/2 years of legal limbo, the court had ruled in favor of counting the ballots, which had been disqualified by the county registrar-recorder on Election Day because they were returned by people other than the voters who filled them out.

For Bill Samora, who lost the race by 323 votes, the moment was one of sweet victory. He had argued in a lawsuit that the state Election Code was vague regarding third-party delivery of ballots and that not counting them had disenfranchised an unwitting portion of the voting public.

For Nancy J. McCracken, the winning candidate, there was little left that could be done. She had fought to prevent the votes from being counted, she said, not because of the slim chance that they might change the results of the election, but because she believed that Samora was trying to change the law for his own benefit.

But any sense of finality to the proceedings was soon to end. Of the first 50 ballots counted, an estimated 45 favored Samora. Then the courtroom phone rang.

On the other end of the line was the state Court of Appeal. In a dramatic last-minute reprieve, the appellate court had sided with McCracken and temporarily blocked the remaining ballots from being opened.

“It was very, very unusual,” said Phil Hickok, the county’s chief legal adviser on elections, who supervised the counting. “If I were a Hollywood scriptwriter, this would be a very good example of the climax for a movie.”

The story behind the brief moment of courtroom drama chronicles the confusion that has surrounded the rules California voters must follow if they choose to vote by absentee ballot.

Filed on Dec. 20, 1983, Samora’s lawsuit has been up and down the legal ladder ever since. It has been rejected and affirmed by the same courts, it has been reviewed by the state Supreme Court and it has indirectly produced a new state law aimed at clearing up the commotion.

Both sides predict that the Court of Appeal’s final ruling, anticipated later this month, will be in their favor.

Although both Samora and McCracken concede that by now the suit is virtually moot as far as altering the results of the 1983 election is concerned, they have both sworn to continue fighting because each believes that higher principles are at stake.

“We have 354 voters that have been disenfranchised,” Samora said. “They’re in limbo. Show these people that their vote counts. It’s a matter of principle.”

Samora is not a candidate in the next school board election, scheduled Nov. 3.

McCracken, who is seeking reelection to another four-year term, said the delivery of absentee ballots by a third party opens the door for widespread voter fraud.

“They selected an illegal method to deliver those ballots, and they knew it,” she said. “They are trying to change the law. I have been defending it from the beginning for this very reason.”

The issue of absentee ballots arose in the months proceeding the 1983 Pomona school board election as a result of a massive drive aimed at registering the city’s large Latino population.

A key element of the drive, sponsored by the Texas-based Southwest Voter Registration Project, was to encourage first-time voters to use absentee ballots as a means of increasing turnout, said William Velasquez, president of the organization.

The local leader of the registration drive, Margarita Echavarria, testified in a court affidavit that she personally visited the county registrar-recorder’s office in August, 1983, to gather information on absentee voting procedures.

She said an employee at the office, located in the City of Commerce, told her that absentee ballots could be either mailed or delivered to any polling place within Los Angeles County. Neither the employee nor the absentee voting instructions stated that delivery of the ballots by anyone other than the voter was against the law, Echavarria said.

But on Election Night, Nov. 8, when Echavarria and others delivered a total of 354 absentee ballots to several Pomona polling places, county election officials rejected and refused to count them.

The officials ruled that under the state Election Code, voters using absentee ballots had to return the ballots themselves and could not rely on a third party to deliver them. An emergency provision allowing for third-party delivery if the voter was physically unable to make the trip did not apply, officials said.

2 Seats Filled

With two positions open on the school board, the final election results showed Chris McPeak in first place with 3,023 votes, McCracken second with 3,022 and Samora third with 2,699.

In his lawsuit, filed in Los Angeles Superior Court, Samora named McCracken, the closest vote-getter, as a defendant in the case and asked that the disqualified ballots be counted.

His attorney, John E. Huerta, argued that the state Election Code is vague when it instructs absentee voters that they “may return (the ballot) to the official from whom it came by mail or in person, or may return it to any member of a precinct board at any polling place within the jurisdiction.”

Reasonably interpreted, Huerta said, use of the permissive “may” instead of the more restrictive “shall” means that third-party delivery of absentee ballots is permitted.

Moreover, because the large majority of absentee ballots came from Spanish-surnamed voters in predominantly Latino south Pomona, Samora contended that he would likely receive more votes than McCracken and be declared the winner.

“We tried to make it clear to (McCracken) all along that this was not so much a personal challenge to her but the principle of having these ballots counted,” Huerta said.

“The important point is that these were people trying to vote for the first time, and they were being frustrated in their efforts to exercise that right.”

McCracken, however, has maintained that the law clearly prohibits the delivery of absentee ballots by third parties.

Her attorney, Craig Mordoh, cites a long history of legal precedent and a 1979 opinion from the state attorney general, which concludes that an absentee ballot “must be returned by mail or by the voter in person and may not be returned by a third person though authorized by the voter to make the return.”

Principles at Stake

“The principle of having integrity in the election process is more important than the principle of someone voting for the first time,” Mordoh said. “I don’t think our judiciary should say: ‘Well, go ahead and count these ballots so people can feel better, even though it violates the election process.’ ”

In a January, 1984, ruling, Los Angeles Superior Court Judge Charles E. Jones agreed and dismissed the case.

Samora appealed the ruling. But in May, 1985, the Court of Appeal upheld the dismissal.

Samora appealed again, requesting a review of the case by the state Supreme Court. This time, the tide began to turn in his favor.

Based on a similar case before the court, the justices determined that barring the third-party delivery of ballots is not fundamental to the integrity of the electoral process, provided that there are no signs of tampering or fraud. In October, 1986, the Supreme Court referred the case back to the Court of Appeal for reconsideration.

In a December, 1986, ruling, the appellate court reversed itself, concluding that the Election Code governing the delivery of absentee ballots mainly provides direction and does not go “to the substance” or necessarily affect “the merits or results of the election.”

The case was returned to Los Angeles Superior Court to see whether there was any “fraud, tampering or coercion” in connection with the challenged ballots.

Count Urged Again

In a brief filed with the court, Huerta urged the judge to allow the ballots to finally be opened and counted. If, as a result of the tally, Samora appeared to be the winner, the court then could establish whether any fraud was involved and rule accordingly, Huerta said.

If the tally showed that he did not win, Samora said, he would feel vindicated that the voters “had their individual voices heard and that the democratic institutions which govern this country worked its will,” Huerta wrote in his brief.

Mordoh, however, argued that the votes could be tallied only after the court ruled on the tampering question.

“Rather than follow the order of the higher court, plaintiff (Samora) wants to count the ballots first and look for fraud later,” Mordoh wrote in a court brief. “Plaintiff has the process backwards.”

Moreover, Mordoh pointed to Senate Bill 133, signed into law on May, 18, 1987, which specifically prohibits third-party delivery of absentee ballots. The legislation states that it is intended to clear up any confusion about the Supreme Court decision that sent the Samora case back to the appellate court.

Superior Court Judge Jack Tenner, however, ruled in favor of Samora and ordered the ballots opened in his courtroom July 31. McCracken’s attorney appealed and received the last-minute stay when the Court of Appeal telephoned Tenner’s courtroom and temporarily ordered the counting stopped.

Fight to Continue

Regardless of the appellate court’s final decision, both sides say they are committed to fighting the case.

“Mr. Samora lost the election fair and square,” Mordoh said. “I don’t think he should have the judiciary place him in office when the voters, according to the rules, didn’t.”

But Samora, who says he no longer wants McCracken’s seat, maintains that all he is seeking is to have the votes counted as a matter of principle.

“If the vote count isn’t going to matter, then why continue to contest it?” he said. “What’s the big issue? Why not count the damn things?”

1983 SCHOOL ELECTION CHRONOLOGY Nov. 8, 1983: The county Registrar-recorder invalidates 354 absentee ballots on election day because they were not returned personally by the voters who filled them out. Dec. 20, 1983: Bill Samora, who lost the election by 323 votes, files a lawsuit in Los Angeles Superior Court asking that the absentee ballots be counted. Jan. 9, 1984: A Superior Court judge dismisses the case. May 1, 1985: The state Court of Appeal upholds the dismissal. Oct. 30, 1986: The state Supreme Court refers the case back to the Court of Appeal for reconsideration. Dec. 31, 1986: The Court of Appeal reverses itself and refers the case back to Superior Court. June 4, 1987: A Superior Court judge orders the absentee ballots counted. July 31, 1987: The Court of Appeal temporarily blocks the ballots from being counted.