Pomona Board Member Finally ‘Wins’ 1983 Race

Last Tuesday, Nancy McCracken was reelected to the Board of Education seat she has held since 1981. The next day, McCracken finally “won” the 1983 school board election.

The results of the earlier race had been the subject of a legal dispute for four years. Bill Samora, who fell 323 votes short of winning a seat on the board, filed suit against McCracken in December, 1983, claiming that the county registrar-recorder’s office had improperly disallowed 354 absentee ballots that could have affected the election’s outcome.

The 354 ballots had been delivered by people other than the absentee voters. The registrar-recorder ruled that the state Elections Code requires that absentee ballots have to be either mailed or personally delivered by the voters.

Samora argued that the Elections Code did not explicitly state that absentee ballots could not be delivered by people other than the voters.

After Samora’s case had wended its way through Superior and appellate courts to the state Supreme Court and back down again, 320 of the ballots were finally counted last week at the registrar-recorder’s office in Commerce. The other 34 votes were not counted because of legal questions.

Samora received 275 additional votes but still fell short of victory. McCracken received 29 votes. Chris McPeak, who finished first in the race for two seats, received 26 votes, and 47 votes were divided among three other candidates.

On Friday, Los Angeles Superior Court Judge Jack Tenner accepted the revised vote count, ending the case.

“We still won,” Samora said. “We accomplished what we set out to do. The focus of the suit was not really whether I had won or lost. It was to get a clarification of the (elections) statute.”

However, McCracken remains angry that she had to fight in court for an office she says she won legitimately at the polls. She also resents having spent more than $20,000 in legal fees defending the actions of the registrar-recorder.

“It would have been comforting if the county had chosen to join the suit as a defendant,” McCracken said. “I knew, because it was a civil suit, if I did not defend at any point, the court would have no choice but to grant judgment to Mr. Samora. And judgment for Mr. Samora would mean changing the law.”

Before last week’s count, the registrar-recorder voided 27 of the ballots. Of these, 17 ballots had signatures that did not match voter registration forms, five did not have signatures at all and five were from people who were not registered to vote. Seven other ballots were not counted after McCracken’s attorney, Craig Mordoh, challenged their authenticity.

However, Tenner denied a request by Mordoh to order the district attorney’s office to investigate the possibility of election fraud.

Samora has said he knew of no attempts at fraud, adding that he was opposed on principle to excluding any ballots.

“I still feel that all of them should have been counted, even if they all voted for McCracken, because those people (whose ballots were not counted) were disenfranchised.”

Many of the absentee ballots resulted from a drive by the Southwest Voter Registration Project to register Latino voters and encourage the use of absentee ballots to increase voter turnout.

Margarita Echavarria, who supervised the voter registration drive in Pomona, delivered 292 of the ballots to the polls on behalf of the absentee voters.

Samora’s attorney, John Huerta, contended that the state Elections Code stated only that voters “may” personally deliver absentee ballots or mail them, and did not require that they “shall” do so. Hence, he argued, the law did not expressly prohibit delivery of the ballots by people other than the voters.

Echavarria testified in court that she had asked employees at the registrar-recorder’s office about absentee voting procedures before the election. She said they had not told her that there was anything illegal about “third-party” delivery of ballots.

Samora’s suit was dismissed in 1984 by Los Angeles Superior Court Judge Charles E. Jones. In May, 1985, the Court of Appeal upheld that dismissal.

But in October, 1986, the state Supreme Court referred the case back to the appellate court for reconsideration. Basing its decision on a similar case involving an election in Palo Alto, the Supreme Court ruled that the question of third-party delivery of ballots was not fundamental to the integrity of an election, provided no evidence of vote fraud existed.

Mordoh said he was “outraged” by the ruling, which proved to be a turning point in the case. In December, the Court of Appeal reversed itself and ruled in Samora’s favor.

When the case was again heard in Los Angeles Superior Court last June, Tenner ordered that the ballots be counted. Of the first 50 ballots counted, 45 were for Samora. But before the rest of the ballots could be counted, the state Court of Appeal called the courtroom to halt the vote count.

The appellate court stayed the counting of the ballots to consider a last-minute appeal by McCracken. In September, the Court of Appeal rejected McCracken’s appeal, and Tenner ordered that the ballots be counted Nov. 4.

The question of third-party delivery of absentee ballots, which prompted the suit, was resolved in May when the state Legislature amended the Elections Code.

Clear Prohibition

As amended, the law clearly prohibits the third-party delivery of absentee ballots. The only exception would be if a voter were physically unable to get to the polls, in which case a member of his immediate family could deliver the ballot.

Even though the law has been revised to prevent suits such as Samora’s from arising in the future, Huerta considered the final verdict a victory.

“They lost every appeal,” Huerta said of McCracken and her attorney. “We believe that, under the legislation as it was written, we were vindicated.”

However, Phil Hickok, the county’s chief legal adviser on elections, said the intent of the code was never to permit absentee ballots to be delivered by third parties. The reason Samora’s suit prevailed, he said, was that the intent was not clear enough.

“It is--and always was--the intent of the Legislature to require the personal delivery of absentee ballots, not third-party delivery,” Hickok said.

Like everyone else involved with the suit, Hickok expressed surprise that it had taken so long to resolve the matter.

“I guess you’re always surprised when a case goes on four years, but elections cases are usually decided very quickly,” Hickok said.

“It’s a shame it’s gone on this long,” Mordoh said. “I was also surprised that Mr. Samora pushed it as long as he did.”

Mordoh said he suspects that McCracken was singled out as the defendant because Samora believed that she would not respond and that he would win a judgment by default.

“I know they sued her personally because they thought she would not be able to afford to defend herself and it would be an easy victory,” Mordoh said. “My client is pretty angry with having to defend the process.”

Samora denied attempting such a ploy.

“My understanding was that a suit could not be filed against the state . . . it had to be filed against one of the other candidates,” Samora said. “This is something that Mrs. McCracken has thrown at me in the past--that it was malicious, that it was directed at her. It wasn’t. Her name just happened to be on it.”

Samora said McCracken was named as the defendant in the lawsuit because she had finished second in the race for the two open seats on the board, one vote behind McPeak. Ironically, the only effect the lawsuit had on the election’s outcome was to give McCracken, not McPeak, the most votes.

Samora said he kept pressing the lawsuit because he believed that he was right, adding that he long ago gave up any hope of replacing McCracken on the school board as a result of the suit.

No Plans to Run Again

“It became a moot issue two years ago, three years ago,” Samora said. “I probably wouldn’t have accepted the seat because (the board’s) continuity would have been disrupted.”

Samora said he has no plans to run again for the school board, largely because the company he works for has moved his office to Thousand Oaks. The long commute would prevent him from serving on the board, he said, adding that he is trying to sell his house and move closer to his work.

For McCracken, who lost in her first two bids for the school board and had to fight for four years to preserve her 1983 reelection, the experience has been educational.

“I think I’ve learned that you really do have to keep an eye on the courts,” she said. “Some of them seem to function with an awareness of the law that is really very acute, and others seem to just ignore it.”