A decision by San Mateo elections officials to invalidate a number of assisted voter signatures on a referendum petition was addressed by the California Court of Appeal in Friends of Bay Meadows v. City of San Mateo, (— Cal.Rptr.3d —, 2007 WL 4336016, Cal.App. 1 Dist., Dec. 12, 2007). The court ultimately upheld the county officials’ decision, resulting in failure of the proposed referendum challenging measures adopted by the San Mateo City Council concerning Bay Meadows Race Track.
Facts
In November 2005 the San Mateo City Council (“City”) adopted resolutions approving redevelopment of land on which the historic Bay Meadows Race Track is located. Opposition to the development proposal was led by Friends of Bay Meadows (“Friends”), which prepared a referendum petition and gathered signatures to put it on the ballot. Friends’ attempt failed in January 2006 when city and county election officials refused to certify the petition on the ground it lacked valid signatures from the requisite numbers of qualified voters.
Friends filed an action seeking a writ of mandate directing City and the election officials to reverse their invalidation of certain signatures and certify the referendum for a vote. The matter was submitted to the trial court on stipulated facts, with the crux of the parties’ dispute centering on 36 disallowed signatures obtained from voters who were assisted in affixing their printed name and place of residence to the petition as required by California Elections Code §100. The elections officials had determined that, based on handwriting and other factors, a “second person assisted the signer by writing their name and address,” but failed to obtain a witness’s signature as to each assisted voter’s signature. The trial court rejected Friends’ argument that the signatures could be counted as valid based on the completed declaration of the petition circulator at the end of each petition, and upheld the election officials’ decision invalidating the signatures. Friends appealed.
Decision
California Elections Code § 100 provides that only registered voters may sign a referendum petition, and that each such signer “shall at the time of signing . . . personally affix his or her signature, printed name, and place of residence on the appropriate spaces on the petition.” Under §100.5, a voter who is “unable to personally affix” the information required by §100 may request another person to print the voter’s name and residence, but the voter must “personally affix his or her mark or signature on the appropriate space of the petition or paper, which shall be witnessed by one person by subscribing his or her name thereon.”
The Court of Appeal agreed with the trial court and election officials that the 36 assisted voters’ signatures were deficient due to the lack of a witness for each signature, and that the deficiency could not be cured by construing § 100.5 to validate signatures solely by the declaration of the petition circulator on each sheet of signatures. The requirement that a signer “personally affix” his or her own information is not an insignificant requirement, the court said, because it both ensures that a signer is “actually involved” in the process, thus aiding in the prevention of forgery, and that he or she affirms the residence address which is placed on the petition. Such affirmation goes to the heart of election officials’ ability to verify whether the person signing the petition was entitled to do so. If a signer cannot affix his or her own information as required by § 100, the court said, the Legislature clearly intended that an additional safeguard was necessary, and provided same by requiring that the voter’s own “mark or signature” be witnessed by a person whose name would be available to county or city election officers to verify the signature or mark of the assisted voter.
If the Legislature intended to permit a petition circulator to endorse all assisted signatures it could easily have done so by using language to that effect. Instead, the Legislature in the Elections Code chose to distinguish “circulators,” “voters,” and “persons,” and specified that a voter’s “mark or signature” be witnessed by “a person,” not by “a circulator” of the petition, the court said. “The irrefutable logic behind that choice is that the voter, and the person who witnessed someone other than the voter write out the voter’s information at the voter’s request, would be more reliable sources of verification than a circulator who might have a far less precise – if any – recollection of each and every signatory,” the court stated. The generic declaration of the petition circulator thus cannot substitute for the more personalized requirements of §100.5, the court said.
The court also found the legislative history of §100.5 contemplated that an assisted voter’s witness would likely be an in-home caretaker or family member; and the Elections Code provision defining “signature,” § 354.5(a), clearly indicated that a subscribing witness’s name be “near” the mark made by a voter. Thus, the San Mateo election officials properly disqualified the 36 signatures at issue, the court said, meaning that Friends’ petition fell short of the number of signatures needed to place the referendum on the ballot. The court therefore affirmed the trial court’s judgment denying the writ of mandate.