This article was originally posted at Lowell Finley’s Blog and is re-posted here with permission of the author.
If it looks like a duck, walks like a duck, and quacks like a duck, it’s a duck. It is not a seagull. People will, understandably, refer to it as a duck. Deciding to call it a seagull does not cause it to cease being a duck and does not transform it into a seagull. With me so far? An election held by a California city is an “advisory election” if its purpose is to enable only the city’s registered voters to voice their opinions on substantive issues in a non-binding manner. City advisory elections are subject to the California Election Code’s general requirements and prohibitions.
Now consider the following scenario. A small California city’s leaders, and the elections system vendor they hire, plan an election that in all respects is described by California Elections Code section 9603. The city leaders and vendor publicly and consistently refer to the planned activity as an “advisory vote” and “advisory election.” The city is notified that the election will be illegal, both because it will use an Internet voting system, prohibited by the Elections Code, and because the system is not state-certified, as required by the Elections Code. With just two weeks to go, the city’s leaders and vendor respond by re-labeling the planned activity a “poll” or “community poll” but make no other changes.
Does the change in labels mean the planned activity ceases to be an advisory election? Is it no longer governed by the state Elections Code? Those were the core questions before the court in Mohns v. City of Del Mar, et al., San Diego County Superior Court No. 39-2015-00003206, filed January 29, 2015. The city, two city officials, and Everyone Counts, Inc., a San Diego company that provides Internet voting services, are the defendants. I am the plaintiff’s attorney in the case. At an ex parte hearing on January 30, 2015, the court denied plaintiff’s application for a temporary restraining order to prevent the election from going forward the following Monday, February 2. The court ruled that plaintiff had not shown a likelihood of succeeding on the merits at trial. Why? Since the city and vendor had re-labeled the planned advisory election as a poll and local newspaper stories had called it a poll, the court found that it was a poll, not an advisory election.
This outcome has potentially serious ramifications. A city government is holding what, in all respects other than name, is an advisory election that should be governed by state law. It is using an Internet voting system, a technology considered by experts to be insecure and incapable of protecting voter privacy. Use of an Internet voting system is flatly prohibited by the Elections Code. In addition, the voting system is not certified by the California Secretary of State. As a result, its use in an official election is prohibited. Finally, because the system is not certified, it is unlawful for the city to contract for its use.
The City of Del Mar has fewer than 4,000 registered voters. As it now stands, there is nothing to stop a city with 100,000 or 500,000 registered voters from doing the same thing.
What is to be done? It is too late to stop this particular election. It should be possible, however, to seek legislative amendments that make it unmistakably clear that where California cities are concerned, something that looks and acts like an advisory election is an advisory election, regardless what it is called, and must comply with the California Elections Code.
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