Hardeman v. Thomas

At least 13 executed absentee ballots were hand-delivered to the city clerk’s office on June 16, 1987. The secretary, who checks in absentee ballots when they are returned to the clerk’s office, did not recall seeing 10 or more people in line to return their ballots on election day, June 16. None of the envelopes which enclosed these ballots had a postage stamp affixed nor a postal cancellation stamp imprinted; all were stamped by the city clerk’s office as having been received between 10:01 and 10:02 a.m. They were the ballots of: Sayyed Apacanis, who voted freely for Thomas; Anna Apacanis, who voted freely for Thomas; Virgie Lee Bryant, who gave her ballot to Mayor Vincent who voted freely for Thomas; Carolyn Evans, who voted freely for Thomas; Gregory Hutchinson, who voted freely for Thomas; Florentino Mandalag, who gave his completed ballot to Thomas and voted freely for Thomas; Mary McCaskill, who gave her ballot to a Thomas campaign worker, Margaret Roi, who voted freely for Thomas; Henry Robinson, who voted for Thomas; Theodore Ashley; Josie Barbar; Janice Harrison; Gwendolyn Hubbard; and Cynthia Jones. There was no evidence indicating for whom the last five voters cast their respective votes.^[2]

In varying combinations, the signatures on the voter registration affidavit, the absentee ballot application, and the envelope, in which the executed absentee ballots of 13 other voters were enclosed, did not match.^[3] Seven voters’ signatures on their respective absentee ballot envelopes did not match those on their voter registration forms and their applications for absentee ballots. They are: Michelle Bullock; Glenda Burden; Joe Herrera; Andrea Herrera; Lee Morgon; David Jackson; Michael Lyons. Three voters’ signatures on their respective voter registration forms did not match those on their applications for absentee ballot and their envelopes containing their absentee ballots. They are: Maureen Davison; Vester Magee; and

One voter, Linda Odums, received an absentee ballot from a person other than the city clerk. Ms. Odums voted her absentee ballot for Thomas. On election day, Ms. Odums voted a second time for Thomas at the polling place. Both votes were counted by the city clerk.^[5]

The absentee ballot envelopes containing executed ballots of two voters, Johnny Roberson and Wanda Roberson, were solicited by and delivered to a third party unsealed.^[6]

Mayor Vincent visited voter Nancy Carolyn Armstrong to pick up her absentee ballot. She had not yet voted and invited the mayor into her home. He volunteered to show her how to vote. Though she did not request that he do so, the mayor took her ballot and punched in a vote for Thomas. She had not had an opportunity to read the literature but accepted the mayor’s advice that Thomas “was a good guy.” When the mayor punched in her ballot, Ms. Armstrong felt that he had abridged her rights because she had not had an opportunity to read the campaign literature and decide for herself. The mayor then inquired about Ms. Armstrong’s daughter, Pamela. He returned later with an absentee ballot for Pamela and told Ms. Armstrong to have Pamela sign it. Pamela was present when the mayor returned with her ballot. She had not had time to study the ballot, but the mayor told her that since her mother knew everybody for whom she wanted to vote, he would punch Pamela’s ballot in the same way he had punched in her mother’s. The mayor punched in her ballot and took it with him. Pamela felt rushed and was made nervous by the mayor’s presence. Pamela had wanted to go to the polling place and vote herself. Neither Ms. Armstrong nor Pamela was ill or suffering from any physical disability.

Two men visited voter Hope Denise Wooten. She was in a hurry and did not know for whom to vote. The men told her the numbers to punch out, which she did. They did not ask how she voted. She signed her envelope and gave it to the two men.

Mayor Vincent, his daughter, Valerie, and a third person visited voter Lynda Carol Martin to pick up her absentee ballot. They asked her to fill out her ballot so they could take it. She was hesitant because she felt there “was someone looking over [her] shoulder.” Though she had not thought about voting that day, she did so because she did not want to be rude. She felt uncomfortable when a person approached her while she was voting and that her privacy had been infringed upon. Ms. Martin gave the unstamped ballot envelope to one of the visitors. She was not ill or physically disabled.

A man from the Thomas campaign visited voter Sharon Douglas to pick up her absentee ballot. She had been studying, and it was late. She had not completed her ballot. The man told her there were two other people in the car outside, and all would wait for her to vote. With a list of preferred candidates in hand, which included Thomas’s name, the worker sat right next to her on the couch while she voted. Her husband, Stanley Douglas, was not at home. The man told her it was all right for her to complete her husband’s ballot because that was the way he and his wife always did it. After inquiring three times about the propriety of such action, Ms. Douglas voted her husband’s ballot. She signed her husband’s name. When she went to initial that signature, the man told her it was not necessary. She voted both ballots for Thomas.^[7]

Thomas and the mayor visited voter Vinnell Lloyd and brought her a ballot. They gave her the ballot and told her what numbers to punch. She punched out number 9, which was Thomas, and three other numbers as she was instructed. She did not seal the ballot envelope. She gave it to the men to take. Ms. Lloyd had suffered a stroke and was physically disabled. Ms. Lloyd voted the way she wanted.

A Thomas campaign worker visited voter Irish Smith to pick up her absentee ballot. The worker interrupted Ms. Smith’s housecleaning, but Ms.

Two male Thomas campaign workers visited voter Julia Harris to pick up her absentee ballot. Ms. Harris told them she thought it was improper for them to pick up the ballots and that she would mail them at the appropriate time. One of the workers twice insisted that she vote at that time. After Ms. Harris completed her ballot, the worker asked about the ballot of her husband, Tommy Lee Harris. Ms. Harris informed him that her husband - worked two jobs and she normally would cast her husband’s vote. The man assured her it was proper for her to vote her husband’s ballot and to sign his name to the ballot envelope. When Ms. Harris attempted to seal her and her husband’s ballot envelopes, the worker insisted she leave them unsealed. Though she was reluctant to surrender them unsealed, Ms. Harris did so because the workers said “they were honest.” Ms. Harris was in good health. Ms. Harris voted one ballot for Thomas and the other for the contestant, Hardeman.^[8]

A Thomas campaign worker visited voter Ruby Curtis to pick up her absentee ballot. Ms. Curtis informed the worker that her husband, Billy Curtis, was in Mississippi and had given her permission to vote his ballot. The worker agreed this was appropriate, and Ms. Curtis voted her husband’s ballot and signed his name to the ballot envelope. Both ballots were cast for Thomas. Ms. Curtis’s daughter, Pamela, was present and voted her ballot. Pamela had not completed any forms prior to voting her absentee ballot. The signature appearing on Pamela’s absentee ballot envelope did not match the signature on either her voter registration affidavit or her application for absentee ballot. Pamela voted for Thomas.^[9]

Voter Erik Curry recalled signing an absentee ballot application but did not receive an absentee ballot. When presented an absentee ballot envelope with his signature upon it, Mr. Curry testified that he did sign his absentee ballot envelope. Frederic Woocher, a lawyer working for contestant Hardeman, spoke to Mr. Curry over the Labor Day weekend in 1987. During that conversation Mr. Curry told Mr. Woocher that “he never voted the ballot himself, that he got an absentee ballot and while he was away at work one day somebody came and picked it up.”^[11]

Voters Jimmy G. Jackson (age 30), Robin Marie Jackson (age 29), and Albert Jackson (age 28) are Thomas’s stepchildren. At the time of the election, all three lived occasionally at two residences—at Thomas’s house on Dehn Avenue and at other houses on Kenwood Avenue in Los Angeles. Thomas provided Jimmy and Albert with the down payment on a Kenwood Avenue house, which they purchased before March 1987. Jimmy and Albert have possession of the Kenwood house which they are in the process of remodeling. They often eat at Thomas’s house, and have clothes and some furniture in the garage of Thomas’s home on Dehn Avenue. The house on Kenwood Avenue has some furniture but is not completely furnished. Robin and her two children, ages three and seven, live in another Kenwood Avenue home with Robin’s aunt; the children attend a school located outside Inglewood. All three Jacksons identified the Dehn Avenue house belonging to Thomas as their residence on their absentee ballot application and voted in the June 16 election for Thomas.^[12]

The registration materials of Shirley and David Jackson list their residential address in the fourth district as 2942 West Imperial Highway, Inglewood—the address of Thomas’s election headquarters. Both Thomas and

As of August 1, 1987, contestant has lived at 3348 West 117th Street in the City of Inglewood. Prior to that time, from September 1986 to July 1987, contestant lived at 616 East Arbor Vitae in the City of Inglewood. Both residences are within the boundaries of the fourth councilmanic district. Contestant worked as a police officer on the night shift. Contestant’s fiancée, now wife, lived outside the fourth district; contestant had a phone in her apartment, and at the time of trial was living there with her and her child. Contestant and his fiancée were married during the campaign period; he lived at the Arbor Vitae address but often stayed at his new wife’s residence. He worked the morning watch; and after getting off work would go to the Arbor Vitae house to sleep. All his furniture and clothes were at the Arbor Vitae address.^[14]

Procedural History

On July 17, 1987, contestant filed his statement of contest against Thomas. Pursuant to Elections Code section 20050, it listed the following grounds: (1) illegal votes were cast, and (2) Thomas committed offenses against the elective franchise defined in division 1 of the Elections Code, commencing at section 29100.^[15] The statement of contest recited the following supporting facts: “Numerous absentee ballots were not delivered in compliance with Election Code Section 1013 and accordingly were illegal votes that should not have been, but were in fact, counted. [](] Upon information and belief [Thomas] and/or his agents violated, and conspired to violate several provisions of Chapter 6 of Division 17 of the Election Code, including, but not limited to, Section 29610 (aiding or abetting fraud in connection with casting votes), Section 29611 (public official aiding the illegal casting of votes), Section 29612 (interference with fair election), 29622 (gift, payment, or other consideration to induce a person to vote), Section 29630 (use of tactic of coercion or intimidation), and Section 29642 (fraudulent Absent Voter ballot signature).”

On October 8, 1987, the court ordered a hearing to be held on October 16, 1987, on the proposed judgment and findings and fact and conclusions of law; and on the request of contestant that the court reconsider the remedy.

On October 16, 1987, the court and counsel engaged in a long and thorough discussion regarding the appropriateness of the different remedies available: whether to order a new election or to declare the contestant the winner; whether and how to apportion the illegal votes which the court could not determine for whom they were cast; whether several proposed findings were supported by clear and convincing evidence.

On October 23, 1987, the findings of fact and conclusions of law were filed. As noted above, they are attached to this opinion as appendix A. Judgment was entered that same date. In pertinent part, it provided: “It is ordered, adjudged and decreed as follows: fl|] 1. More than sixteen illegal votes were cast for Thomas in the June 16, 1987 runoff election for the fourth District Councilman for the City of Inglewood; accordingly, Thomas’s election is annulled and set aside, [fl] 2. The position of Councilman for the fourth District of the City of Inglewood is vacant and the City of Inglewood is hereby ordered to conduct a new run-off election for the fourth District Councilmanic seat in accordance with Division 14, Part 2, Chapter 2, Article 2 commencing at Elections Code section 22830. [fl] 3. Any certificate of election issued by the City Clerk for the City of Inglewood to defendant Thomas declaring him to have been elected to the office of City Councilman should be cancelled and annulled, and is of no effect.”

Issues on Appeal

I. Thomas appeals, repeating his contention that the statement of contest failed to provide adequate notice of the grounds for the contest. He also asserts that the court did not apply the proper standard of review of the evidence, i.e., clear and convincing evidence; and that substantial evidence

By way of prefatory comment, we note that Thomas’s and the City’s briefs are liberally strewn with philosophical asides, editorializing about the sanctity of the finality of the electoral process and the dangers inherent in an after-the-fact judicial scrutiny of campaign practices. The record indicates that the trial court acted scrupulously to protect this most fundamental of our democratic rights. We too are mindful of the care required when the judicial branch reviews a case involving the will of the voters. We are not willing, however, to sacrifice the integrity of the process on the altar of electoral finality. “[Preservation of the integrity of the election process is far more important in the long run than resolution of any one particular election.” (Fair v. Hernandez, supra, 116 Cal.App.3d 868 , 881 (J. Kaufman, concurring).)^[17]

Trial Court and Clear and Convincing Evidence Standard. Preliminarily, we reject the assertion made by both Thomas and the City that the court below failed to apply the correct standard in evaluating the evidence. In its conclusions of law, the court states, “The Court must find that a challenged vote is illegal by clear and convincing evidence.” (See appen. A, p. 22.) Moreover, during the course of discussions between the court and counsel the required use of this higher standard of evaluation was noted on several occasions.

Substantial Evidence Standard on Review. We also find unpersuasive the contention that substantial evidence is lacking to support the court’s findings of fact. After careful consideration of the entire trial transcript and a review of the documentary evidence contained in the record, we are impressed with the scrupulous consideration the court gave all the evidence. Much, if not all, of Thomas’s and the City’s “sufficiency of the evidence” objections, in effect, seek to require us to reweigh the evidence and to disbelieve some of the testimony believed by the court. This simply is not our role. (Bowers v. Bernards (1984) 150 Cal.App.3d 870 , 874 [ 197 Cal.Rptr. 925 ].)

Thomas objects to the length of time taken by the court to rule on his motion regarding the validity of third party mail-in of absentee ballots. On the last day of trial, the court ruled that these ballots were valid. Thomas contends that this delay in ruling hampered his defense because it “chilled” his efforts to show that third party hand-delivered ballots might have actually been third party mail-in ballots. This assertion fails because it was understood by all that third party hand-delivered ballots were not permitted. Consequently, Thomas would have risked nothing by attempting to show that some of these ballots, in fact, were mailed in by a third party.

Contestant’s

sole contention is that section 20087 mandates that he be declared elected to the Inglewood fourth district council seat.^[19] He asserts that once the court made the findings of fact, invalidating a sufficient number of Thomas votes to give him the majority of the valid votes cast, it had no choice but to declare him the winner.

During the hearing on the choice of remedies available to the court, the court commented, “I think that this court is empowered under . . . section . . . 20086 ... to and will set aside and order a new run-off election.” Section 20086 provides that after the court conducts the trial on the contest and files its findings of fact and conclusions of law, it “immediately thereafter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election.”

In its findings of fact and conclusions of law the court offered the following rationale for its ruling: “For the following reasons, the Court concludes