High Court Asked to Rule on Disputed 1987 Election

The combatants in the legal fight for an Inglewood City Council seat have asked the state Supreme Court to resolve the disputed 1987 election of Councilman Ervin (Tony) Thomas.

At stake is the sanctity of future elections throughout California, both sides argue in written arguments filed this week.

If the high court declines to hear the case, a new election will be held, as ordered by the state Court of Appeal in February.

In October, 1987, Los Angeles Superior Court Judge Leon Savitch ordered a new election after annulling Thomas’ election, citing widespread Election Code violations by the Thomas campaign.

Lawyers on both sides agree that the odds are against the state Supreme Court’s reviewing the case. The court has three months to decide.

The court’s heavy schedule increases the odds against review, lawyers say, as does reluctance by judges to become involved in election disputes.

In February’s decision, a three-judge panel of the state Court of Appeal unanimously rejected appeals by the city and Councilman Thomas and also rejected challenger Garland Hardeman’s request to be declared the winner of the election.

Review Request

In requesting the review, the city and Thomas argue that Thomas should keep his seat because there was insufficient evidence for Savitch to annul the election.

For his part, Hardeman says Savitch erred by stopping short of declaring him the winner once the judge had disqualified enough votes to erase Thomas’ winning margin.

The case is thick with complex issues. However, lawyers for the city, for Thomas and for Hardeman have asked the high court to consider simple questions, which they called vital to the future of elections and election law.

Edward Lascher, an appellate specialist for the city whose previous arguments the appeal court criticized as irrelevant and filled with “philosophical asides,” took a somewhat different approach in his petition for state Supreme Court review.

Lascher asks the high court to consider changes in the laws governing election challenges, proposing that appeal courts be required to scrutinize evidence by the same standards applied in trial courts.

The appellate panel seemed to do just that in February when it upheld Savitch’s ruling that evidence regarding 58 illegal votes was “clear and convincing” and said an appeal court must defer to the trial judge’s assessment of evidence.

But because an election challenge could have a significant impact on a community, Lascher argues, an appeal court should re-examine the evidence as is done in administrative cases involving misconduct by lawyers and judges, as “it is just as important that the propriety of the people’s decision at the polls be extraordinarily protected.”

The court should also protect voters with tougher requirements on candidates to challenge elections, Lascher argued. He and Thomas attorney Robert Stroud said Hardeman lawyers obstructed the city’s defense because they did not sufficiently spell out which votes they would challenge on what grounds.

Ruling Attacked

And in an argument that met with derision from Hardeman’s lawyer, Lascher again attacked the ruling that ballots were illegal because of intimidation of voters by campaign workers--including Inglewood Mayor Edward Vincent, who punched absentee ballots for voters or otherwise pressured them to vote at their homes.

Lascher asked the Supreme Court to reconsider the definition of “intimidation,” citing the appellate opinion that “in our modern advertisement-oriented society . . . subtle manipulation and suggestion can be a forceful and effective form of influence on our actions.”

If that is true, Lascher said, aggressive campaign advertising--such as television ads attacking candidate Michael Dukakis in the 1988 presidential campaign--constitutes illegal intimidation. He characterized the conduct by Thomas’ campaign workers as “persuasion” and said: “persuasion--not always terribly subtle--has been a crucial part of the American electoral process.”

Hardeman’s attorney Mark Borenstein expressed disbelief at what he called justifying the intimidation of voters in their homes by a public official.

“Having dead people vote has been part of the American electoral process, too,” he said. “So was ballot-stuffing in Chicago. That’s just an incredible argument.”

Borenstein took issue with Lascher’s contention that the high court should impose a tougher review standard on appeals of election cases. He said the mandate that the appeal court find that the trial judge ruled on “substantial evidence” is sufficient.

“That’s an exacting review,” he said. “It’s not just pro forma. It’s more than adequate in a case like this.”

Simple Argument

In his written arguments filed with the court, Borenstein repeated a simple argument he made to the Supreme Court last year when seeking emergency review of Savitch’s decision not to declare Hardeman the winner. The court declined to hear the case, with only one of the seven justices voting for review.

Borenstein maintains that Savitch had no choice but to declare Hardeman the winner because he disqualified enough illegal votes to leave Hardeman with more votes than Thomas.

Even the city and Thomas’ lawyers say it is not clear why Savitch called for a new election instead of enforcing Election Code section 200087, which states: “If in any election contest it appears that another person than the defendant has the higher number of legal votes, the court shall declare that person elected.”

The refusal of Savitch and the appellate court to heed that statute is “internally inconsistent” and “undermines the carefully crafted legislative scheme underlying the election contest laws,” Borenstein wrote. He rejected the appellate court’s justification that some of the voters who cast illegal ballots intended to vote for Thomas, saying those illegal ballots could not be allowed to dilute the effect of legal ballots.

Thomas remains in office pending appeal, with his term expiring in April, 1991.

In asking the state Supreme Court to declare Hardeman the new councilman, Borenstein said the decision to hold a new election “has nullified the ballots of the law-abiding Inglewood voters. . . . The residents of the 4th District are having critical decisions made for them--for the past 21 months--by a person the trial court has found owes his very presence on the council to widespread violations of the Election Code.”