Wednesday, March 1, 2017
Court of Appeal Clarifies Time Limit for Election Contest
By KENNETH OFGANG, Staff Writer
A qualifying voter has 30 days after a primary election to file an election contest, if the winner received a majority of the votes, the Third District Court of Appeal ruled yesterday.
The panel reinstated Firenza Pini’s challenge to John Fenley’s reelection to the Trinity County Board of Supervisors last June. Fenley received 380 votes in the sparsely populated county’s District 5, to 352 for Diane Richards. There were 14 write-in votes, so Fenley received 50.94 percent of the vote and avoided a runoff, according to the official returns.
On July 26, 20 days after the results were certified, Pini—as a registered voter in the district—filed a contest. She claimed that a large number of mail and/or provisional ballots were improperly excluded from the count, that “the precinct board…made errors sufficient to change the result of the election,” and that there were errors in vote-counting “due to changed programs of some voter machines after publicly interrogating voter machines.”
Six days after the contest was filed, Trinity Superior Court Judge Elizabeth W. Johnson dismissed the contest sua sponte. She ruled that because the June election was a primary, the five-day statute of limitations, Elections Code §16421, applied and the action was untimely. Pini moved for reconsideration, arguing that the primary should be treated as a general election, making the action timely under a 30-day statute, §16401(d), because Fenley’s majority meant there would be no runoff.
Justice George Nicholson, writing for the Court of Appeal, agreed with Pini.
“Very simply, the election of Fenley to the Board of Supervisors was a general election because he received a majority of votes and was declared the winner without a runoff,” the justice wrote. “Therefore, the trial court erred by treating the contest as involving a primary election.”
He cited §8140, which provides that “[a]ny candidate for a nonpartisan office who at a primary election receives votes on a majority of all the ballots cast for candidates for that office shall be elected to that office,” and Cummings v. Stanley (2009) 177 Cal.App.4th 493, which held that the election of county central committee members, which takes place at the same time as the primary election, was not a primary under §16421, so that contestants have 30 days.
Section 16401, Nicholson explained, which relates to general elections, specifies deadlines for contesting a general election that ends in a tie or a presidential election, and then states that “[i]n all other cases,” the deadline is 30 days. This is one of those cases, he said.
He also rejected Fenley’s argument that §16462, which requires that any request for a recount be brought within five days, applies. Even if Pini’s contest were deemed to be a recount request, the section only applies to primary, not general, elections, he said.
The case is Pini v. Fenley, 17 S.O.S. 1026.
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