Marian Cruz’s lawyer Wednesday said she planned to request dismissal of the civil action in the next couple of days for two reasons.
They couldn’t prove at least 10 votes were illegal – a necessity to overturn the election. And a judge potentially could have tossed it out because too much time had elapsed since the county certified the election April 6, said lawyer Harry Damkar.
Barring extraordinary developments, Damkar said a dismissal of the contest means Cruz would relinquish his seat when his term ends in January. Cruz couldn’t be immediately reached for comment Wednesday.
After reviewing an investigative report requested by the Board of Supervisors to examine the allegations of election fraud against De La Cruz, they decided there wasn’t enough proof to nullify 10 votes.
“Given the state of evidence in the report, we don’t believe that we could meet our burden,” said Damkar, the former district attorney.
De La Cruz was ecstatic Wednesday afternoon when he heard about the expected dismissal of the case.
“Yeah, baby!” he shouted, showing similar emotion as on March 10 when the Elections Office announced he beat Cruz by 10 votes.
The other roadblock to De La Cruz assuming the seat is the criminal probe of him and campaign adviser Ignacio Velazquez. The two men had been under investigation for alleged election fraud – many of the same claims included in the Cruz suit.
But the criminal probe has been on hold since a flurry of allegations in May led to District Attorney John Sarsfield referring it to the state attorney general. Sarsfield has not responded to inquiries of whether he or the state will resume the investigation.
Coinciding with the Board of Supervisors’ request for a criminal probe in late March, Marian Cruz filed the election contest in civil court requesting a judge nullify the results in favor of a new race.
Progress on the civil end took more than three months after filing the suit, Damkar said, because he had been waiting for evidence from the criminal probe – specifically the investigative report detailing the allegations of elections fraud and witness corroboration.
“Bob Cruz and his committee have never once said this is about Bob Cruz. He has said this is about the integrity of the elections process,” Damkar said, adding Cruz still hopes either local prosecutors or the Attorney General’s Office will resolve the accusations.
De La Cruz’s lawyer Mike Pekin also has argued in court documents that a strict elections code – requiring speedy resolve to such election contests – left Cruz’s suit vulnerable to a judge’s dismissal.
According to the state code, a court hearing or trial must have taken place within 55 days – by May 31 in this case – of the board’s certification.
“Ultimately, if the court took a strict view of the statute, yes, I think a court could go that way,” Damkar said.
De La Cruz’s adviser was pleased as well, but not as emphatically. Velazquez maintained Wednesday that their accusers were trying to “steal the election.”
He didn’t specify to whom he was referring. But he said Bob Cruz supporters, including many members of the League of United Latin American Citizens, were behind the allegations. He also has criticized the board for ordering the probe.
“They knew the truth from the very beginning and they need to be held accountable for it. And they will be held accountable for it,” Velazquez said, adding, “We will be bringing those responsible to court.”
Uncertainty and a lack of progress on the criminal investigation, meanwhile, has Bob Cruz and at least one other supervisor, Reb Monaco, concerned.
If De La Cruz was found guilty of a felony – among six recommended felonies for elections violations in the investigative report – he still would lose the seat.
When reached early Wednesday – before Damkar indicated the case would be dropped – Cruz acknowledged his concern about uncertainty still surrounding the District 5 seat.
“Absolutely, everybody is,” he said.
Monaco on Wednesday repeated his growing concern for the residents in District 5.
“I realize everybody’s busy,” said Monaco, who didn’t want to direct his criticism at anyone. “But this should have been a high priority on someone’s platter.”
“The thing that I worry the most about,” De La Cruz said, “is that we’re going to be reaching January, and there’s still this cloud on top of the county.”
Recommendations in an investigative report for charges against Jaime De La Cruz include the following:
– Illegally receiving voted ballots
– Interfering with the return of voted ballots to the Elections Office
– Coercing a voter
– Electioneering within 100 feet of a polling place
– Signing an affidavit intended for other campaign workers’ signatures