Ruling on the Merits
Petitioner Troy Edgar’s Petition For Writ of Mandate is denied in its entirety on the basis that Petitioner failed to meet his burden to show that Respondent Kelley’s actions of (i) refusing to qualify Petitioner as a candidate for the office of Clerk-Recorder; and (ii) qualifying Real Party In Interest Al Mijares as a candidate for the 06/03/14 election was in violation of the Elections Code or the Constitution. The evidence shows that Petitioner did not have the signatures of at least 20 registered voters who signed his nomination papers in his possession by the 5:00 p.m. March 7, 2014 deadline imposed by Elections Code § 8020(b).
Writ relief is available for an error or omission in the placing of a name on the ballot pursuant to Election Code 11314. In order to obtain writ relief, Election Code Section 13314(a)(2) requires the moving party to show both “(A) that the error, omission, or neglect is in violation of this [Election] code or the Constitution, [and] (B) that issuance of the writ will not substantially interfere with the conduct of the election.”
Election Code § 8020(a)-(b) requires the following items “to be delivered” to the Registrar of Voters by 5:00 p.m on the 88th day prior to the election (March 7, 2014 here): (1) a Declaration of Candidacy, and (2) Nomination papers “signed by signers.” Significantly, the statute does not require that the documents be filed by that deadline, only that they be “delivered.” While the statute does not specifically require the Declaration of Candidacy to be filled out and signed by the candidate by 5:00 p.m., it would make no sense if the submission of a totally blank form was deemed to comply with this requirement. According to the Supplemental Declaration of Kelley, the practice of the Registrar’s office is to generate a customized Declaration of Candidacy (with preprinted name and office of the candidate) at the time a candidate “pulls papers” (i.e., fills out a candidate information sheet and obtains nomination forms), and then hold that Declaration until the required nomination signatures are submitted. (Kelley Supp. Decl. ¶ 5-6) Respondent asserts that the Declaration of Candidacy is considered “delivered” as of that time. (Id.)
According to Respondent’s evidence, it is the practice of the Registrar of Voters to lock the doors to the office at 5:00 p.m. on the deadline filing date, “but to continue to process completed nomination documents for the individuals who are waiting in line at the time the doors are locked.” (Kelley Decl. ¶ 3) This practice is in compliance with Section 8020 since it limits processing to those candidates who presumably have met the requirements of delivering the mandated forms to the office by 5:00 p.m., i.e., the forms have been completed and are physically in the office by that time. As to the Declaration of Candidacy form, the Registrar’s stated practice of holding onto these forms until the nomination papers are received and verified comports with Election Code § 8028(a) which (with one exception) prohibits a candidate from removing this form from the Registrar’s office. Significantly, there is nothing in the statute or in case law that prohibits the Registrar’s office from considering the Declaration of Candidacy “delivered” as of the time a customized form is generated even though that form has not been signed off under oath by the candidate.
Here, the evidence establishes that Petitioner did not have his nomination papers completed and in the Registrar’s office by 5:00 p.m. Elections Code § 8062(a)(3) requires that at least 20 registered voters sign nomination papers such as those at issue here. The provisions of Election Code § 8062(b) are mandatory, not discretionary, and no nomination paper shall be deemed sufficient that does not comply with this section. As it is undisputed that several of Petitioner’s 20 registered voters did not sign the nomination papers by the 5:00 pm deadline, Respondent did not have discretion to take any act other than to disqualify Petitioner as candidate for Clerk-Recorder.
Petitioner contends that his late delivery of nomination papers should be excused given that he was in the Registrar’s office shortly after 4:00 p.m., and that due to the last-minute rush he was forced to wait until about 4:45 p.m. to obtain the required forms to be filled out. The implication that the Registrar’s office is to blame for his missing the deadline fails to take into account Petitioner’s decision to submit his paperwork at the absolute last hour of a 25-day period. (See Election Code § 8020(b)) Having previously run for election in Orange County (Edgar Decl. ¶ 7), Petitioner knew about the 5:00 p.m. deadline, but assumed he could complete the process in less than an hour.
Obviously, he failed to take into account the possibility of many other candidates also showing up at the last minute.
Given the express statutory mandate, the doctrine of substantial compliance is not applicable here, and Petitioner fails to cite any authorities that have allowed the use of the doctrine in circumstances similar to those at bar. Indeed, in the case most similar to the situation at hand, a court of appeal held that a lower court acted improperly in granting a writ directing a registrar of voters to accept a ballot argument submitted five hours past the statutory deadline. Barnes v. Wong (1995) 33 Cal. App. 4th 390. As stated by Barnes: “The doctrine of substantial compliance does not apply. Cases specifically dealing with statutory deadlines for election filings that are couched in language requiring documents to be filed ‘not less’ than or ‘not later’ than a given number of days before a designated time have insisted on strict compliance with the deadlines.” Id. at 396.
More to the point, the problem with a substantial compliance argument as it applies to time deadlines is that it chips away at a rule designed to level the playing field for all candidates. Without a hard and fast deadline, the possibility of inconsistent (and potentially unfair) administration of preelection procedures is greatly increased.
Likewise, Petitioner’s claims based upon Constitutional equal protection arguments are without merit, as Petitioner failed to present any evidence that the Respondent certified the candidacy of any other candidate that lacked the required number of registered voter signatures by the 5:00 pm deadline. Thus, he cannot show that he received unequal treatment by Respondent. Evidence presented by Respondent tends to show that any candidate who did not have the required number of signatures by the deadline would be treated exactly the same as Petitioner.
As to Real Party in Interest Mijares, the fact that the clerk did not administer the oath required in connection with his Declaration of Candidacy until after 5:00 p.m. on March 7 does not change the result. Mijares testified that he delivered all required nomination papers as well as a signed Declaration of Candidacy well before 5:00 p.m. (Mijares Decl. ¶ 9) Indeed, his statement that he “delivered” the Declaration on February 20 is consistent with the procedure described in the Kelley Supplemental Declaration, as is the fact that it is signed under oath only after the nomination papers have been delivered and verified by the Registrar’s staff. (Kelley Supp. Decl. ¶ 9-10; Mijares Decl. ¶ 13-15) Administering the oath, which is done by the Registrar, is considered part of the processing of election papers that Respondent apparently routinely did after the deadline.
Petitioner also failed to present any evidence whatsoever that issuance of the requested writ will not substantially interfere with the conduct of the upcoming election. Evidence presented by Respondent tends to show that the requested relief substantially interferes with the election.
In short, Petitioner’s application for writ of mandate is denied in its entirety, and the Alterative Writ issued Court orders clerk to e-mail these minutes to all counsel and to give written notice.
I was just informed that the judge has made the ruling that Troy Edgar will not be ops part of the Orange County Clerk-Recorder race. I suppose he could run as a write in candidate, but if his consultants couldn’t even get him on the ballot it is highly unlikely that he will pursue this any further.
At this time we are awaiting more information as to what the judge’s opinion said. After the recent redesign the Orange County Superior Court website is terrible and very hard to navigate. As more information becomes available we will post it.