Tuesday, September 8, 2009
C.A. Revives Suit Challenging GOP Committee Election
By KENNETH OFGANG, Staff Writer
The First District Court of Appeal Friday reinstated a contest by the former Republican Party chairman for Alameda County to the election of seven members of the party’s Central Committee.
In reversing Alameda Superior Court Judge Frank Roesch’s order dismissing Paul Cummings’ contest, Div. One held that a 30-day statute of limitations applicable to general elections, rather than the special five-day statute for primary elections, governs contests of the election of party central committee members.
Cummings was replaced as chairman following last June’s election, when candidates calling themselves “Constitutional Republicans” won 12 of the 30 committee seats. His successor, Karen Wind, subsequently resigned and was replaced by Gerald Salcido, one of the attorneys for the Constitutional Republicans.
The Constitutional Republicans have been identified in news articles as being associated with the 2008 presidential campaign of Rep. Ron Paul, R-Texas, and with anti-illegal-immigration Minutemen groups.
Cummings contested the elections of seven of the 12, claiming they are statutorily ineligible to serve because they were not registered Republicans for three months prior to running and/or were registered in other parties less than a year before becoming candidates for the central committee. Roesch ruled that the statement of election contest, filed 17 days after the canvass was completed, was untimely under Elections Code Sec. 16421, which requires that the contest of a “primary election” be brought within five days of the canvass.
Marin Superior Court Judge Stephen Graham, sitting on assignment in the Court of Appeal, said the election of central committee members, while it occurs on the statewide primary election date, is a “general election” to which the 30-day statute, Sec. 16401(d), applies.
Graham rejected the trial judge’s reliance on a code section declaring the June election to be a “direct primary.” He noted that other sections describe any statewide election as a “general election” and say that a “primary election” is a “nominating election.”
The terms “direct primary” and “primary election” are thus not synonymous, Graham said. The June election, he explained, is a direct primary, encompassing both a primary election to nominate candidates and a general election for central committee members.
The election of central committee members, he elaborated, lacks the characteristics of a primary election, since those members are elected to the office, not merely nominated to run in a future election.
Applying the longer statute, he added, is consistent with the legislative purpose behind the shorter statute for primary elections, which Graham described as “to effectuate quick judicial decisions as necessary to allow timely printing of ballots for the forthcoming general election.”
The panel also rejected several procedural challenges to the contest, holding that as an elector of the county, Cummings had standing to challenge the election of the defendants—even though he did not live in any of the districts in which they ran—and that legislation governing election contests generally applies to the election of county central committee members.
The court further rejected the contention that Cummings failed to exhaust pre-election remedies, both on the ground that the defendants did not raise the issue in the trial court, and because the defendants failed to present evidence that Cummings knew or had reason to know prior to the election that the defendants’ qualifications were in doubt.
The case is Cummings v. Stanley, 09 S.O.S. 5496.
Copyright 2009, Metropolitan News Company