08/19/2020
Malibu's City Attorney, Christi Hogin, sent me an email at 9:45pm Monday night.
In it she stated that the Malibu City Clerk is responsible for upholding election rules while simultaneously not responsible for correctly evaluating the validity of signed endorsements for city election nominees.
In this letter she ignored the legality of the signatures I contested as being valid according to election code and instead she came up with the false narrative of my turning my nomination paper in within the time allowed resulted in my inability to collect additional signatures needed for my nomination's approval by the City Clerk. I never suggested I needed additional time, rather I my argument is that several of the endorsements discredited by the outside agency used by the City Clerk to validate my paper were incorrect, including my own endorsement of myself (see 6 FACTS below).
I do not know if the City Attorney has any jurisdiction with which to make that call, as she herself attested to this being solely in the hands of the Malibu City Clerk, who she, herself, told me that any corrections were out of her hands...
I do not know if the City Attorney had the approval of the Mayor Mikke Pierson in sending this letter as he himself wrote to me stating "I don't know much about this legally." I do not know if Ms. Hogin had the approval of this letter by the rest of city council or if they too read it for the first time as I received it Monday night at 9:45 PM.
I have not received any correspondence from the County although Ms. Hogin refers reviewing such in her letter. I also was not CC'd on whatever Lance Simmons wrote to Ms. Hogin, but his opinion, as he voiced such elsewhere on social media, is that if things are unfair, it should be unanimously enforced unfairly for everyone. So keep that in mind in November.
I do know that I consulted election code carefully before making my complaint, and that these codes have also been reviewed by numerous others who agree with my stance that my nomination paper was evaluated incorrectly. I maintain that my nomination had the necessary 20 minimum necessary endorsements to be qualified to appear on November 3rd's ballot. I am effectively being blocked for running for Malibu City Council by the City of Malibu.
6 FACTS:
1. I signed my own endorsement. (not counted)
2. Two Malibu residents who are both registered to vote within Malibu at addresses within Malibu incorporated and put down their current address of residence as directly instructed to on the nomination form both signed my paper. (not counted x 2)
3. A voting Malibu resident filled in the shared address of both herself and her immune compromised spouse before he himself signed my paper to limit his possible exposure to Covid-19, and then she signed my form before passing it back to me. (her signature not counted, while his was counted)
4. The wording of election code suggests that any voter may sign the form of as many individuals are running for office. This would include possibly two more valid signatures (not counted x 2).
5. I turned in my nomination paper and paperwork within the deadline provided, as stamped by the Malibu City Clerk.
6. I need no additional signatures as the above signatures which were deemed invalid are in fact valid for my nomination.
Below is Christi Hogin's letter in it's entirety, which ignores the six facts outlined above:
Ms. Ollikainen:
I have been closely following your email correspondence with Heather and the County over your nomination paper. I imagine you must be frustrated and disappointed at this point. The purpose of this email is to respond to the various concerns raised regarding the Los Angeles County Registrar-Recorder’s determination that your nomination paper did not have sufficient signatures and to let you know some options.
We know that the election rules are specific and not always intuitive. The City Clerk routinely recommends that candidates file their papers early so that the candidates have the benefit of the procedure to correct deficiencies within the filing period. Heather and I answer lots of questions during the election cycles. I know some people even choose to engage election consultants to assist them. Again, we know the rules require attention to detail but fortunately the City has seen very few glitches over the years.
While Heather tries to be as helpful as possible, she cannot bend the rules. A free and fair election is defined by adherence to predetermined rules. Every candidate must satisfy the same requirements of law.
Lance Simmens makes this point well in his email to us about your nomination paper where he asks for assurances “that ALL candidates were subject to the same scrutiny and the same set of qualifying hurdles so as to be 100 percent certain that everyone was treated fairly.”
That is an important request because residents should be confident that their election officials are not cutting corners or playing favorites or making judgments about whether the rules should apply. We have taken this unfortunate situation very seriously and considered closely each point that has been made that might alter the outcome.
At your request and the requests of Bruce Silverstein, Colin Drummond, Margo Lane, Steve Uhring, Lance Simmens, Linda Gibbs, Lynn Jacob, and Jo Drummond we have re-looked carefully at the law and the facts on which the Registrar-Recorder determined your nomination paper had insufficient signatures.
The August 7 deadline.
One of the key factors in this situation is that the nominations period has a hard closing date. Obviously, as a general matter, it is a component of fairness that everyone be given the same amount of time to complete their nomination papers. That doesn’t mean, of course, that occasionally something will come up that makes the deadline a greater hardship for some than it is for others. The Elections Code does not afford the local elections official any authority to extend the deadline.
The City called a regular municipal election for this November to fill three council seats. Nominations were opened July 13 and closed August 7, 2020. August 7 was the last day to file a nomination paper.
The 20 signature requirement and Alia Ollikainen’s nomination paper.
During the nomination period, those wishing to throw their hat in the ring must circulate (or have someone circulate for them) a nomination paper. California Elections Code §10220 requires at least 20 (and not more than 30) registered Malibu voters must sign a nomination paper in order to qualify someone as a candidate for the ballot.
You pulled papers on July 27th and submitted your nomination paper on August 7th, the last possible day. As it did for each nomination paper filed with the City, the Los Angeles County Registrar-Recorder evaluated the signatures of the nominators to determine whether they complied with the Elections Code. As it happens and as is common, this election cycle every nomination paper included signatures that were determined to be invalid and not counted. In the other cases, the remaining valid signatures were sufficient to qualify the candidate for the ballot. In your case, the Registrar-Recorder determined that there were 19 legally valid signatures and 7 invalid ones. The nomination paper did not have the 20 legally valid signatures that are required to qualify as a candidate.
How to fix a nomination paper with an insufficient number of legally valid signatures
As you might imagine, the part of this situation that is frustrating Heather and me is that the Elections Code does provide for an opportunity to collect the additional signatures that were still needed after the Registrar-Recorder completed the initial signature verification. But that opportunity is only available during the nominations period.
California Elections Code §10221 creates the procedure by which a candidate can satisfy the requirement for nomination after a nomination paper has been examined and determined to be insufficient:
“If the nomination paper is determined to be insufficient or the candidate fails to obtain the correct number of valid signatures on his or her nomination paper, the elections official shall retain the original nomination paper, provide a copy of the nomination paper to the candidate with an indication on of which signatures are valid, and issue one supplemental petition to the candidate on which the candidate may collect additional signatures. The supplemental petition shall be filed not later than the last day for filing for that office….”
There was no time left in the nominations period when you filed, so your nomination paper only got the one shot at being sufficient. Consequently, the only place to look for recourse is the nomination paper as filed on August 7.
The legally invalid signatures on the nomination paper
There were four categories of disqualification that you and others in support of you have raised: (1) two voters had already signed three nomination papers; (2) three addresses were not the same as the address where the voters are registered or are unregistered; (3) one voter did not write his own address; and (4) you wish to be considered as having nominated yourself.
1. Because three seats are to be filled in the November 2020 election, a voter may only sign three nomination papers
The Registrar of Voters found that two of the voters that signed the nomination paper had already signed three other nomination papers.
The Elections Official has no authority to deviate from the requirements of law. California Elections Code §10220 explicitly states this:
“No voter may sign more than one nomination paper for the same office, and in the event the voter does so, that voter’s signature shall count only on the first nomination paper filed which contains the voter’s signature. Nomination papers subsequently filed and containing that voter’s signature shall be considered as though that signature does not appear thereon. Each seat on the governing body is a separate office….”
You can see how specific and directive the Elections Code is with respect to this situation. Part of the verification of all nomination papers is to determine whether any of the voters signing the paper had already signed nominations for all the available seats. For you, two voters that signed your paper had already signed three other nomination papers. Those papers were submitted before yours.
The law is clear about what the elections official must do in that circumstance: “that voter’s signature shall be considered as though that signature does not appear thereon.”
In support of a different outcome, Bruce Silverstein offers two possibilities. First, Mr. Silverstein characterizes this as an “obscure provision” of the Elections Code. This provision is in the same paragraph that establishes the minimum 20 signatures. It is a key provision in the article called “Nomination of Candidates” and one of just a handful of sequentially numbered provisions that govern nomination papers.
But the heart of Mr. Silverstein’s concern is that the provision was not adequately explained to candidates. I am sure he understands that no one is excused from the law on that basis. Nevertheless, I appreciate his concern that the City’s website might leave room for one to be confused. The website says, “Each seat is a separate office. A voter may sign the nomination papers of as many persons as there are persons to be elected to office.” That mean that if three persons are to be elected, a voter may sign three nomination papers. If eight persons are running to be elected, only three may be elected. Mr. Silverstein suggests that the sentence may be misread to mean that a voter can sign nomination papers for as many persons as there are running for office. Language is often susceptible to ambiguities. Of course, we don’t know how many people are running until the nomination papers are verified. Luckily, it does not appear that you were confused by the City’s website or even aware of it. Either way, the Elections Code will always govern. While no comfort to you, because Mr. Silverstein has raised it, I will recommend that the City edit that sentence on the website.
The City Clerk has no legal authority to count a signature that state law specifically says cannot be counted on a nomination paper. Mr. Silverstein, makes a magnanimous offer to have those two voters – who also signed his nomination form – deleted from his form so that they may count toward yours. While a kind offer, there is no legal mechanism to implement it. State law provides that the signatures be counted in the order in which they were filed. If the City Clerk were to allow the signature counting procedure to be manipulated to change the outcomes, residents might rightly worry that the City Clerk was not dispassionately applying the rules, as is her solemn duty. Each nomination must satisfy the legal requirements on its own.
2. The nomination paper must have the same residence address as the voter’s affidavit of registration
Three of the voters on your nomination papers wrote addresses that were different than the addresses at which they are registered to vote (actually in one case the registration had not yet been received). This is another circumstance that we find so frustrating. We know residents are displaced by the fire and rebuilding. The Elections Code completely accommodates this. One can maintain voter registration but add a “mailing address” to receive ballots, If this nomination paper had been turned in earlier, you could have used a supplemental paper to submit the signatures with the correct address of the registered voter.
Elections Code §105 instructs the local elections official how to verify signatures on a nomination paper. In relevant part, it says this:
“For purposes of verifying a signature on an initiative, referendum, recall, nomination, or other election petition or paper, the elections official shall determine that the residence address on the petition or paper is the same as the residence address on the affidavit of registration. If the addresses are different,…the affected signature shall not be counted as valid.”
The courts have consistently held that local elections officials have no authority to excuse a deficiency in a nomination paper or in an initiative or referendum petition. For example, in a case called Ni v. Slocum (2011) 196 Cal.App.4th 1636, the Court of Appeal held that if a voter's residence address on an initiative petition is different from the address on his or her voter registration affidavit, the signature is invalid. Similarly, in Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, the Court of Appeal held that signatures on referendum petition which were accompanied by residence addresses different from those shown on the signers' affidavits of voter registration were invalid, even where addresses on petition were within same voting precincts as addresses shown on affidavits of voter registration.
Mr. Silverstein mistakenly asserts that the Elections Code does not require that the address be the one at which the voter is registered to vote. However, as you can see, it does. Courts have confirmed this. See Hartman v. Kenyon (1991) 227 Cal.App.3d 413 (City clerk properly disqualified signatures of recall petition signers who listed different residence address on petition from address they listed on their voter registration affidavit.)
3. Only one signature is legally valid where the same voter completed the form for two voters
The Elections Code requires that each signer “add his or her place of residence.” There are limited exceptions that are not applicable here. When the Registrar-Recorder noted that the handwriting was the same for two of the addresses, it only counted one of the two. Again, regrettably, this is exactly the type of situation for which the Elections Code created a remedy by allowing a supplemental paper after the first verification. But the Elections Code does not allow those corrections after the nominations period closes, leaving the City Clerk no options.
Mr. Silverstein offers a lengthy theory of why it is too late to disallow Collin Drummond‘s signature but not too late to count Jo Drummond‘s signature. Under his theory the elections official could evade the law that requires each signer to write his or her own address. The thing is that the Registrar-Recorder did not know whose handwriting was on the nomination paper. It applied the rule by allowing one of the two; it is of no significance which of the two is allowed.
4. A candidate may sign her own nomination paper
The final possible place to find that one needed signature is to count yours as a nominator as well as a circulator. I spent considerable time researching this possibility, hoping that the logic that you would have signed your own nomination paper if you thought you needed to would have found its way into the case law. The fact is that many candidates do sign their own nomination papers and the law specifically allows it. Unfortunately, these facts make it less legally sound to extrapolate that you did sign it because you could sign it. The requirements for your own signature as a voter on a nomination paper is the same as all others. I found no authority to avoid that conclusion.
In all fairness, the elections official does not have any basis to reach a conclusion different than the Registrar-Recorder. There appear to be 19 legally valid signatures, not 20.
Two options come to mind
If you wish to contest any of the bases for signatures that were not counted, the Superior Court offers an expedited process to obtain judicial review of an election matter. I recommend you consult legal counsel if you wish to consider or pursue that option.
You may also wish to consider whether you would qualify for or be interested in pursuing a write-in candidacy (Elections Code §10103).
I am sorry that this glitch has disrupted your planned run in this way and I sincerely hope that it will not discourage you in the future.
Consistent with the City’s policy of providing equal information to all candidates and because several candidates have shown interest in this issues, I have copied the candidates on this email.
—Christi
Christi Hogin
City Attorney
City of Malibu
Candidates for Malibu City Council are rallying around a political newcomer who fell short of the signatures required to qualify for the November ballot.
