Litigation And Threats Of Litigation Swirl Around Nov. 14 Jessie Lopez Recall Election

By:Matthew Cunningham

A flurry of claims, counter-claims and litigation has erupted around the November 14 recall election of Santa Ana Councilmember Jessie Lopez, who was elected in 2020 to represent Ward 3.

In a letter dated October 26, OC Registrar of Voters Bob Page sent Santa Ana a letter stating his office recently “became aware” that while the recall election was being conducted in the pre-redistricting Ward 3 from which Lopez was elected in 2020, the recall petition was circulated in the post-redistricting Ward 3.

Following direction from the City Clerk’s office, recall proponents gathered voter signatures in the Ward 3 boundaries drawn after the 2020 Census, rather than the pre-redistricting Ward 3. Page said that if one excluded signatures from the new Ward 3, the recall petition would not have qualified. Page asked for guidance from the city on whether it intended to proceed with the election.

City Attorney Sonia Carvalho replied to the ROV with a letter in which she twice asked Page if he intended to rescind his asking whether Page intended to rescind the ROV’s verification of the signature petition certificate.

In response, City Attorney Sonia Carvalho wrote on Oct. 27 that her office was “distressed” by the registrar of voter’s lack of communication and asked twice whether Page would be rescinding his office’s verification of the signature petition certificate. Page provided correspondences between the city and county.

“The city should not be left alone in deciding how to proceed, based on the error, regardless of who is responsible for it,” Carvalho wrote. “Our question back to you is, would you proceed with conducting the election knowing what you now know about there being insufficient signatures to qualify the recall in the first place, assuming you used the wrong map?”

On October 30, County Counsel Leon Page sent a letter to Carvalho in which he claims “you twice request on behalf of the City that the Registrar rescind his Certificate as to the Verification of Signatures on Petition.” Later in the same late Leon Page again claims Carvalho requested said recission:

“Your request on behalf of the City Clerk that the Registrar rescind the certificates is based on….”

It appears Carvalho’s questions to the county were taken as requests.

The OC Register reports that later on October 30, the city informed Leon Page that he was incorrect: Laura Rossini, Santa Ana’s chief assistant city attorney, responded that same afternoon with an email to the county counsel office that the city “never asked or directed” the registrar to rescind his original certificate and requested it be corrected.

Nonetheless, on October 30, ROV Bob Page issued a “superseding certificate as to verification of signatures on petition” in which he states “I further certify that I have been asked by the City of Santa Ana to rescind my certification dated July 17, 2023…” despite the Santa Ana City Attorney’s office explicitly state they had made no such request.

It’s clear now that these communications were the reason for a series of questions Councilman Phil Bacerra posed to the city clerk during the October 30 council meeting.

Bacerra sought to clarify the matter with a series of questions to City Clerk Jennifer Hall:

Bacerra: “Madam Clerk, was the certificate of sufficiency of recall petition that you presented to the city council on August 1, based on the certificate as to verification of signatures on petition provided to the city by the ROV in July?”

Hall: “Yes, it was.”

Bacerra: “And has the ROV formally rescinded their certificate as to verification of signatures on a petition with an accurate superseding certificate as to verifications of signatures on petition?”

Hall: “No.”

Bacerra: “And did the letter from the ROV that the city received on October 26, rescind the RVs certificate as to verification of signatures on petition?”

Hall: “No.”

Bacerra: “My position is the city of Santa Ana should not take responsibility for the ROV errors.”

That evening, the city council deadlocked 3-3 on a motion by Councilman Johnathan Hernandez to rescind certification of the recall – which would effectively cancel it. The motion needed four affirmative votes, and but the progressive council majority opposed to the recall was reduced to three members on this vote due to Lopez’s recusal.

The upshot of the deadlock is the recall election goes forward, absent litigation and subsequent court action to halt it.

Pro-Lopez activists quickly seized on ROV Page’s “superseding” document to claim the county had already “rescinded their certification of the recall petition” by the time the council voted.

Bacerra responded forcefully on social media to both the ROV and Camacho:

Recall Attorney Musters Powerful Rebuttal To Page and Page

On Wednesday, November 1, prominent elections attorney Mark Rosen wrote to both Carvalho and Bob Page on behalf of recall proponents, warning against any action to cancel the election and citing case law to that effect. Rosen also contends the ROV and city clerk were correct to use the post-redistricting Ward 3 lines for the recall petition.

“To begin with, we cannot emphasize enough how improper it would be to cancel an election fourteen days before the scheduled election date. Ballots have gone out; campaigns have been in full swing; polling places have been up and running; and money had been spent,” wrote Rosen.

“Superficial legal assertions and wild nonlegal accusations have been made without the necessary deep research and contemplation required to take the drastic step of stopping the election,” writes Rosen. “The obvious illustration is the Registrar of Voters’ letter of October 26, 2023, which cites Elections Code 21606 – a statute that applied to general law cities, not to charter cities.”

Santa Ana is a charter city.

“We understand how such a mistake could have been made because of the haste in which the letter was sent,” Rosen continues.

Rosen notes that both recall proponents and the city “relied on information provided by the Registrar” and the recall process provided “numerous opportunities before now to challenge the lines that were being used.”

He points out it was the Registrar who gave the recall campaign “the number of signatures they needed to qualify the recall” and that numbers calculated based on the post-redistricting Ward 3 map.

“Had the Registrar given different instructions, the proponents would have sought the signatures in the lines prescribed by the Registrar,” writes Rosen, adding that “the opponents also relied on those lines in seeking to invalidate signatures.”

Rosen notes there were numerous opportunities during the recall process – including a lawsuit brought by Lopez’s landlord – where the issue could have been raised and dealt with, but was not.

Furthermore, Rosen states the ROV and the city clerk were right in using the current Ward 3 boundaries because the Elections Code cited by 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,” writes Rosen.

He points 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 redisticting is required…”

“Significantly, this language does not make any exception for special elections or recall election. It applies to all elections,” writes Rosen.

The same thing happened in Los Angeles. The LA City Council used essentially the same language in its redistricting resolution. When Councilwoman Nury Martinez resigned, the special election to fill the vacancy was held in the new council district boundaries, not the boundaries of the district from which she was elected.

Jessie Lopez Ally Sues

According to sources, a lawsuit has been filed with the goal of stopping the recall. The plaintiff is Guadalupe Ocampo, one of the Lopez supporters who spoke at the October 30 council meeting in favor of rescinding the recall certification.

Guadalupe Ocampo

She is being represented by Kaufman Legal Group, a Los Angeles-based elections law firm that handles lots of Democratic campaign work. It’s unknown who is paying for Kaufman Legal Group to represent Ms. Ocampo.

Ultimately, a judge will sort this out, but the courts have historically been hesitant to halt elections that are underway, and Rosen has provided powerful and persuasive arguments to reinforce that tendency.


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