Statement

Cal. Super. - 6th Dist.May 5, 2021

DocuSign Envelope ID: 41 1 1 1 EE8-A320-41 QB-BAAB-83791ozc1 34F 21 CV381463 Santa Clara - Civil R. Nguyen 1 JAMES R. WILLIAMS, County Counsel (SB. #271253) Electronically Filed STEVE MITRA, Assistant County Counsel (S.B. #244054) by Superior Court of CA, 2 MARY E. HANNA-WEIR, Deputy County Counsel (S.B. #3200wnty of Santa Clara, OFFICE OF THE COUNTY COUNSEL on 5/27/2021 9:23 AM 3 70 West, Heddmg Street, East ng, N1nth Floor Reviewed By: R. Nguyen San Jose, Cahfornla 95 1 10-1770 c #21 CV381 463 4 Telephone: (408) 299-5900 ase Facsimile: (408) 292-7240 Envelope: 6531720 5 Attorneys for Respondent 6 SHANNON BUSHEY, REGISTRAR OF Exempt from Filing Fees Pursuant VOTERS FOR THE COUNTY OF SANTA t0 Govt. Code § 6103 7 CLARA, IN HER OFFICIAL CAPACITY 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 9 10 11 DAVID KISSNER, and SHAHRYAR ROKNI, No. 21CV381463 12 Petitioners, STATEMENT OF NON-OPPOSITION IN RESPONSE TO PETITION FOR WRIT OF 13 v. MANDATE OF RESPONDENT SHANNON BUSHEY, REGISTRAR OF VOTERS FOR 14 SANTA CLARA COUNTY THE COUNTY OF SANTA CLARA, IN SUPERINTENDENT OF SCHOOLS DR. HER OFFICIAL CAPACITY 15 MARY ANN DEWAN; SANTA CLARA COUNTY OFFICE OF EDUCATION; LOMA Date: June 7, 2021 16 PRIETA JOINT UNION SCHOOL DISTRICT; Time: 1:30pm SANTA CLARA COUNTY REGISTRAR OF Dept: 6 (hearing in Dept 12) 17 VOTERS SHANNON BUSHEY; SANTA Judge: Hon. Audra Ibarra CRUZ COUNTY CLERK TRICIA WEBBER; Date 0f First Filing: May 5, 2021 18 AND DOES 1-10, 19 Respondents. 20 I. INTRODUCTION 21 Petitioners David Kisser and Shahryar Rokni (“Petitioners”) have filed a Petition for a Writ 22 0f Mandate asking the Court t0 order Santa Clara County Superintendent 0f Schools, Dr. Mary Ann 23 Dewan (“County Superintendent”) to find the special election petition for Loma Prieta Joint Union 24 School District sufficient, terminate a provisional appointment t0 the Loma Prieta Joint Union 25 School District Board 0f Trustees, and order the election t0 fill the vacancy 0n August 3 1 , 2021 0r 26 another date allowed by law. Respondent Shannon Bushey, the Registrar of Voters for the County 27 0f Santa Clara (the “Registrar”) takes no position 0n Whether Petitioners’ requested relief should be 28 granted. However, should the Court determine that relief is appropriate, the Registrar submits this 1 Statement ofNon-Opposition in Response t0 Petition for 21CV38 1463 Writ 0f Mandate DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 QB-BAAB-83791 02C1 34F 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statement of non-opposition t0 ensure that all parties, and the Court, are aware of the relevant deadlines and steps needed t0 ensure the special election is implemented in a timely and efficient manner. Given the Petitioners’ requested timeline for a special election, if ordered, the Registrar notes that certain statutory timelines may need t0 be waived, and, therefore, any order issued by this Court should clearly establish the new deadlines. Additionally, due to the likely scheduling of a statewide gubernatorial recall election in the fall, the Registrar requests that any final determination regarding this potential special election in Lorna Prieta Joint Union School District be reached by no later than June 10, 2021 so that the election may be held, if ordered, by no later than September 21, 2021 as further discussed below. II. DISCUSSION Special elections t0 fill a vacancy on a governing board for a school district are governed by an array of interlocking statutory deadlines as well as practical considerations. The Registrar’s interest in this matter is solely t0 ensure that, should a special election be ordered, all parties either are able to adhere t0 regular statutory deadlines 0r that this Court clarifies in its order if any timelines are t0 be shortened.1 A. School Board Vacancy Timeline and Process If the Court were t0 order the County Superintendent to deem the text and content 0f the petition sufficient under the Elections Code and Education Code section 5091, the County Superintendent would then need t0 ascertain Whether there are sufficient valid petition signatures t0 qualify for a special election. Cal. Educ. Code § 5091(c)(2). An affirmative answer t0 both questions would result in the termination 0f the provisional appointment} and the County 1 For ease in presentation, the Registrar assumes that if a special election is ordered, the Court would deem the appropriate date t0 be September 21, 2021. The Elections Code requires all elections t0 be held 0n a Tuesday that is not the day before, the day of, 0r the day after, a state holiday. Cal. Elec. Code § 1100. Based on the March 15, 2021 date of the provisional appointment t0 fill the vacancy, the Registrar concurs With the Petitioners’ calculation that September 21, 2021 would be the latest available Tuesday for the special election. Cal. Educ. Code § 5091(0). However, the Registrar takes no position 0n Whether this Court could order a different election date pursuant to its broad powers in equity. That said, as discussed infra, given the likely statewide gubernatorial recall election, a later election date would be more likely to overlap With the early voting period for the recall. 2 In most school district elections, if there is an incumbent Who is eligible t0 be a candidate, but does not file for the election, then the contest would haQe a 5-day extension t0 the nominations period. Statement ofNon-Opposition in Response t0 Petition for 21CV38 1463 Writ 0f Mandate DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 9B-BAAB-837910201 34F 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Superintendent would need t0 order the special election be held. Id. The governing board ofLoma Prieta Joint Union School District may authorize the use of an all-mail ballot election pursuant t0 Elections Code section 4004(0). The Registrar would need to know Whether the election is an a11- mail ballot election or a polling place election as soon as possible, and n0 later than 97 days before the election, in order to publish the Notice of Election at least 90 days before the election. Cal. Elec. Code§ 121 12.3 Under state law, school district elections are conducted similarly to other district elections. Cal. Elec. Code §§ 10500 et seq; 13100 et seq.; Cal. Educ. Code § 5013. The usual candidate nominations period runs from 113 days t0 88 days before an election. Cal. Elec. Code § 10603(a). For a September 21, 2021 election (which is desirable as discussed in subsection (B) below), those dates would be May 3 1, 2021 to June 25, 2021, however because the period begins 0n Memorial Day, When the Registrar’s office is closed, functionally the start date would roll forward t0 June 1, 2021. However, the Registrar notes that since school district candidates d0 not have t0 collect nomination signatures, a shortened candidate filing period that still ends on June 25, 2021 may not impede usual elections processes should the Court deem it t0 be appropriate. The Registrar has a practice 0f setting a final printing deadline 0f 67 days prior t0 an all-mail ballot election“ (July 16, 2021 for a September 21, 2021 election). In some instances, the ballot Cal. Elec. Code § 10604. However, since the Education Code provides that the provisional appointment is terminated upon the County Superintendent finding the petition is sufficient to call for the election, there would be no incumbent and that extension period would not apply. See Cal. Educ. Code § 5091(c)(2), Cal. Elec. Code § 10604. Pursuant to Education Code section 5091(6), if an election is held to fill the vacancy, the person elected shall serve the remainder of the full term- in this case, until 2024. 3 The Registrar will also rely 0n the governing board of the Loma Prieta Joint Union School District to determine which newspaper 0f general circulation to use for publication 0f the Notice 0f Election. Most newspapers require at least a week’s notice, sometimes two weeks, prior to publication of a legal notice. 4 See, e.g., Notice 0f Final Printing Deadline for May 4, 2021 Mail Ballot Election, https://WWW.sccgov.org/sites/rOV/Info/Established%20Election%20Dates/Documents/Mav%204%20 202 1 %20Final%20Printing%20Deadline%20(ReVised%202. 1 .2 1 ).pdf; Notice of Final Printing Deadline for August 3 1, 2021 Mail Ballot Election, https://WWW.sccg0V.org/sites/rov/Info/Established%20Election%2ODates/Documents/August%203 1 , %20202 1%20Final%20Printing%20Deadline%20(revised%2002.022 1 ).pdf. But see, Notice 0f Final Printing Deadline for November 2, 2021 Election, https://WWW.sccgov.org/sites/rov/Info/Established%20Election%2ODates/Documents/Notice%200f %20Final%20Printin2%20Deadline%20- 3 Statement of Non-Opposition in Response to Petition for 21CV381463 Writ of Mandate DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 9B-BAAB-837910201 34F 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 designations and candidate statements are subj ect t0 court challenges Via writs 0fmandate pursuant to Elections Code section 133 14.5 There is n0 specific statutory deadline for resolution 0f those writs, although those matters receive priority by the court and tend to be adjudicated very quickly. However, the Registrar may oppose issuance of a writ subsequent to the final printing deadline because it would “substantially interfere With the conduct of the election.” Cal. Elec. Code §133 14(a)(2)(B). The final printing deadline is set based 0n several timelines the Registrar must meet for preparation and mailing 0f election materials. Ballots for military and overseas voters must be mailed between 60 and 45 days prior to the election. Cal. Elec. Code § 3 105(b)(1). Vote-by-mail ballots must be sent beginning 29 days before the election. Cal. Elec. Code § 3001(b). For all-mail ballot elections, the Registrar includes the County Voter Information Guide (CVIG) in the Vote-by- Mail packet. Official ballots and the CVIG in Santa Clara County must be translated6 into Spanish, Vietnamese, Tagalog, and Chinese pursuant t0 section 203 0f the Voting Rights Act 0f 1965, as amended. In order t0 prepare those elections materials, translate and approve translations, prepare accessible versions 0f the materials for persons With disabilities, print, and mail materials to voters, the Register needs final ballot language and CVIG language including ballot designations and candidate statements by 67 days prior t0 an all-mail ballot election. Therefore, if the Court determines that it is appropriate to shorten or delay otherwise applicable timeframes-e.g., the nominations period and filing deadline-the Registrar respectfully requests all deadlines take into account the need for all ballot and CVIG language to be final by 67 days prior to the election. Subsequent to the election, the Registrar must conduct the post-election canvass and certify the results on or before 30 days after the election. Cal. Elec. Code § 13572(a). Voters may verify %20November%202,%20202 1%2OSpecial%2OElecti0n%20(revised%2001 .272 1 ).pdf (setting deadline at 64 days prior t0 the election for a polling place location). 5 The Registrar notes that if one (or no) candidate files for the election, the special election may be canceled pursuant to Elections Code section 105 15 and the candidate (if any) appointed-in-lieu 0f election, provided that the other provisions 0f that section apply. In that instance, the Registrar would take the position that an election writ regarding the ballot and CVIG materials would be moot. 6 Based on the Registrar’s analysis of the precincts in the Lorna Prieta Joint Union School District, n0 additional languages are required pursuant to EAections Code section 14201. Statement ofNon-Opposition in Response to Petition for 21CV38 1463 Writ 0f Mandate DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 QB-BAAB-83791 02C1 34F 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their signature 0n the ballot envelope 0r correct an unsigned ballot envelope under 28 days after the election. Cal. Elec. Code §§ 3019(d)(1), (e)(1)(A)(i). And so, an election 0n September 21, 2021 would be fully complete by approximately October 21, 2021. B. Gubernatorial Recall Timeline As the Court is aware, the statewide gubernatorial recall election is likely to be called, and preparations for, and early voting in, that election Will likely overlap With any special election that may occur in September 2021. While the precise date 0f the likely gubernatorial recall election is not known, based 0n the various statutory timeframes, it is likely that any such election will be held in early November, although it could be late October through early December. See Cal. Elec. Code § 11108; Cal. C0nst., art. II, §§ 15 and 17. That said, a likely election date for the recall election may be the already-established election date 0fNovember 2, 2021. Cal. Elec. Code § 1000. Based on a November 2, 2021 possible recall election date, the following deadlines would apply. Ballots for military and overseas voters must be mailed 60 t0 45 days before the recall election, Which would be September 3-18, 2021. Cal. Elec. Code § 3 105(b)(1). Vote-by-mail ballots must be mailed starting 29 days before the election, Which would be October 4, 2021. Cal. Elec. Code § 3001(b). Therefore, voting in a gubernatorial recall election is likely to overlap With voting, and certainly with the post-election canvass, for a special election for this vacancy. Overlapping voting periods for very different elections may be confusing to voters. The Registrar respectfully requests that the Court consider limiting the overlap 0f those activities by ordering that the special election, if so ordered, be held no later than September 21, 2021.7 III. CONCLUSION The Registrar takes n0 position on the substantive merits 0f the underlying petition for writ 0f mandate. Rather, she respectfully requests that if a special election is ordered, that it be held no later than September 21, 2021. Further, the Registrar respectfully requests that the Court make clear / / / 7 As discussed in footnote 1, the Registrar concurs with the Petitioners’ calculation that September 21, 2021 would be the latest available Tuesday forsthe special election. Statement ofNon-Opposition in Response t0 Petition for 21CV38 1463 Writ 0f Mandate DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 9B-BAAB-837910201 34F 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in its order any deadlines or timeframes that will be delayed 0r shortened, while continuing to ensure that the final printing deadline of July 16, 2021 for a potential September 21, 2021 election. Dated: May 27, 2021 6 Statement ofNon-Opposition in Response t0 Petition for Writ of Mandate Respectfully submitted, JAMES R. WILLIAMS County Counsel DocuSigned by: U‘MSEDoucr-u-UH MARY E. HANNA-WEIR Deputy County Counsel Attorneys for Respondent SHANNON BUSHEY, REGISTRAR OF VOTERS FOR THE COUNTY OF SANTA CLARA. IN HER OFFICIAL CAPACITY 21CV381463 DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 9B-BAAB-837910201 34F 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA PROOF OF SERVICE BY ELECTRONIC MAIL David Kissner, et al. v. Shannon Bushey, Registrar 0f Voters Case N0.: 21CV381463 for The Countv ofSanta Clara. in her official canacitv. et al. I, Kimberly Ide, declare: I am now and at all times herein mentioned have been over the age of eighteen years, employed in Santa Clara County, California, and not a party to the within action 0r cause; that my business address is 7O West Hedding Street, 9th Floor, San Jose, California 95 1 10-1770. My electronic service address is: kimberly.ide@cco.sccgov.org. On May 27, 2021, I electronically served copies Via the Odyssey e-filing system the following: STATEMENT OF NON-OPPOSITION IN RESPONSE TO PETITION FOR WRIT OF MANDATE OF RESPONDENT SHANNON BUSHEY, REGISTRAR OF VOTERS FOR THE COUNTY 0F SANTA CLARA, IN HER OFFICIAL CAPACITY to the people listed below at the following electronic service address: James Sutton Email: isutton@camnaignlawverscom JP Fisher Email: ipfisher@camnaignlawvers.com Ruby Marquez Email: rubv.marquez@santacruzcountv.us Brian Bock Email: brian@proactiveblg.com Marcelo Quinones Ema11: marcelo.qu1nones@cco.sccgov.org Gabriel Markoff Email: gabrielmarkofféflcco.sccgov.org 7 Statement ofNon-Opposition in Response t0 Petition for 21CV38 1463 Writ of Mandate DocuSign Envelope ID: 41 1 1 1 EE8-A32D-41 QB-BAAB-83791 02C1 34F I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct, and that this declaration was executed 0n May 27, 2021. /s/Kimberly Ide 5 Kimberly Ide 2418418 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statement ofNon-Opposition in Response t0 Petition for 21CV38 1463 Writ 0f Mandate