Thursday, May 1, 2008
S.C. Declines to Enter Orange County Election Dispute
By a MetNews Staff Writer
The California Supreme Court yesterday left standing a Fourth District Court of Appeal ruling upholding the result of a recount in last year’s special election for Orange County supervisor.
The justices, at their weekly conference in San Francisco, voted 6-0, with Chief Justice Ronald M. George recused, to deny Trung Nguyen’s petition for review of the Jan. 17 ruling in Nguyen v. Nguyen, 158 Cal.App.4th 1636, which left Janet Nguyen the winner of the election by seven votes.
The Court of Appeal’s Div. Three said Janet Nguyen was within her rights to ask for a manual recount of paper ballots while relying on the electronic records stored by computerized voting machines to tally electronic ballots.
Rejecting an argument by Trung Nguyen that the recount of the disputed Feb. 6, 2007 voting was invalid because electronic votes were not recounted manually, the court affirmed the ruling of Orange Superior Judge H. Michael Brenner that Janet Nguyen won the election.
Trung Nguyen had initially been certified the winner in the special election to fill an unexpired term by a margin of seven votes over Janet Nguyen. Janet Nguyen requested a manual recount of the paper ballots, but opted to have electronic ballots recounted by downloading data from the voting machines—a less expensive and less time-consuming method than counting the paper printouts from inside the machines.
The recount resulted in Janet Nguyen beating Trung Nguyen by a margin of seven votes, and the registrar certified the result on Feb. 26, 2007, making Janet Nguyen the winner.
Trung Nguyen then alleged that Sec. 15627 of the Election Code does not permit the recount of paper ballots in one manner and electronic ballots in another, and that Sec. 19253 requires that the internal printouts be used for any recount. As a result, he contended, the recount was invalid and he should be declared the winner based on the initial vote count.
At trial, Brenner rejected Trung Nguyen’s arguments, holding that the recount was conducted properly and that Janet Nguyen remained the winner, albeit by only three votes.
On appeal, Presiding Justice David G. Sills similarly rejected the arguments as unpersuasive.
“There can be no doubt that, in a recount, paper ballots may be recounted manually while electronic ballots may be recounted electronically,” he said.
Even if Trung Nguyen’s statutory analysis had been correct, Sills wrote, “two undisputed facts require us to affirm the judgment in Janet Nguyen’s favor.”
Noting that Trung Nguyen had not presented any evidence that a manual recount of the electronic ballots would have made any difference in the results, and that he had deliberately waived his right to order the electronic ballots be recounted manually, Sills concluded that there was no way that the court could legally declare Trung Nguyen the winner in the case.
“Simply put,” he wrote, “there is no substantial evidence that he received the highest number of legal votes in the election…. The most that Trung Nguyen might achieve in this appeal is a judgment annulling the February 2006 election and holding a new one, but that is relief he manifestly does not seek.”
The special election was for a seat whose term expires at the end of this year. Janet Nguyen is a candidate for a full term and is opposed in the June 3 primary by Dina Nguyen and Hoa Van Tran.
In other conference action, the high court unanimously agreed to decide whether a Riverside Superior Court judge abused his discretion in removing defense counsel from a special-circumstances murder case over a conflict of interest that the defendant was willing to waive, and if so whether this was per se reversible error, as ruled by the Fourth District’s Div. Two on Jan. 16 in People v. Paredes, 158 Cal.App.4th 1516.
Copyright 2008, Metropolitan News Company