Voters in Santa Ana’s Ward 3 will still have the opportunity to decide whether or not to recall Councilmember Jessie Lopez, after a judge rejected an attempt by Lopez supporters to stop the recall election through litigation.
Superior Court Judge Craig Griffin denied the request for an injunction and is allowing the November 14 recall election to go forward as scheduled. Griffin said the election was too far along to halt it with just a week left to go; he told the litigants he would conduct further research and make a final determination on the matter at a January 12, 2024 hearing.
In other words, Judge Griffin ruled the recall election may go forward in a normal fashion, and he will rule in January whether to let it stand.
Ballots were mailed weeks ago to 26,949 voters in Ward 3 and 3,276 of those voters have already returned completed ballots.
The lawsuit was filed on behalf of Guadalupe Ocampo, a Lopez supporter.
The crux of the matter is whether the recall petition should have been circulated in the pre-redistricting Ward 3 from which Lopez was elected, or the current Ward 3 boundaries adopted by the city council in the spring of 2022. At that time, the city council specified that all subsequent elections would be held in those council district boundaries – no exception was made for recalls.
Mark Rosen, attorney for recall proponents, has argued that the Registrar of Voters and the city clerk were right in using the current Ward 3 boundaries because the Elections Code cited by ROV Bob Page doesn’t apply when a city charter provides differently.
“The charter of the City of Santa Ana indeed provides differently by calling for the use of new lines for all elections once those lines have been adopted,” Rosen wrote in a November 1 letter to Page and City Clerk Jennifer Hall, pointing out that the April 5, 2022 city council resolution adopting the current council wards map states that it is adopting “the ward boundaries set forth in the Recommended Map…for use in the City’s General Municipal Election on November 8, 2022 and subsequent elections thereafter until a further redistricting is required…”
“Significantly, this language does not make any exception for special elections or recall election. It applies to all elections,” Rosen wrote.
“That’s what’s in Santa Ana’s law. And Santa Ana’s laws supersede any state statute to the contrary,” Rosen told Judge Griffin this morning.
Ocampo’s attorney, Gary Winuk of Kaufman Legal Group, a prominent Democrat elections law firm in Los Angeles, disagreed, contending state law requires recall elections be held in the district from which the targeted official was elected.
“Only the voters that put you in place can remove you from office, which is why the petition was insufficient,” argued Winuk.
Winuk also asked the judge to instruct that ballots be mailed to the approximately 1,200 voters who live in the old Ward 3 but not the new Ward 3 – essentially creating an entirely new Ward 3 that would only exist for the recall election. Winuk proposed that any completed ballots from those “disenfranchised” voters be set aside and not counted unless necessary.
Rosen pointed out that among other things, those 1,200 voters would not receive the benefit of participating in a full campaign, for example not receiving voter communications from either side of the recall question.
Winuk responded by claiming citizens “have a right to vote, but not a right to receive mailers.”
Ultimately, Judge Griffin told the litigants he will come to one of three conclusions.
“Number one: That they [recall organizers] did it just right and it’s not a problem. Number two: They did it wrong, but there was no time to challenge the certification and so it’s going to stand even if it’s wrong. Number three: It’s wrong in something that is so fundamental, it’s going to have to be thrown out,” said the judge.
There has been some chatter in certain quarters that the OC Registrar of Voters has stated he will not certify the results – a claim that misrepresents the ROV’s role in the recall election. OC Independent put that question to ROV Bob Page, who replied:
“Under the City’s Resolution No. 2023-055 requesting services from ROV, the Registrar will canvass the returns of the election and provide the results to the City Clerk. The City Clerk as the Election Official is responsible for submitting the results to the City Council under Election Code 15372. The City Council must then declare the results under Election Code 15400. Questions regarding the City’s specific procedures should be directed to the City.”
In other words, it is the city clerk, not the ROV, who certifies the result. The ROV merely counts the votes and transmits the numbers to the city clerk.
Essentially, Judge Griffin said to move ahead with the election and he would sort out its legality in January.