The wife of Bob Cruz, who unofficially lost his re-election bid
for District 5 county supervisor, has filed a lawsuit in Superior
Court with hopes to nullify the race’s result and set the stage for
a redo election in November.
The wife of Bob Cruz, who unofficially lost his re-election bid for District 5 county supervisor, has filed a lawsuit in Superior Court with hopes to nullify the race’s result and set the stage for a redo election in November.
Judge Harry Tobias on Monday morning will consider a request by Marian Cruz for a temporary restraining order preventing County Clerk John Hodges from certifying the race’s results.
Hodges, who previously intended to certify the election Monday at 9 a.m., said he still expects to follow that plan.
Challenger Jaime De La Cruz unofficially defeated incumbent Bob Cruz by 10 votes. In question are eight absentee ballots improperly returned to the Elections Office, along with other ballots that may not have been counted, according to Marian Cruz’s lawyer Harry Damkar.
When Hodges heard Tobias “provisionally” granted the temporary restraining order Friday – tentatively until Monday’s hearing – he said he was “kind of shocked.”
“I’m not an attorney, but I do know my elections law, and I do know you have to have the facts first,” Hodges said, referring to the official certification of the numbers. “I have to certify it. This is a federal election.”
Local elections officials met with Tobias on Friday afternoon, Hodges said. The judge agreed the lawful process would be a certification followed by a “contest,” or challenge, from Marian Cruz, according to Hodges.
Damkar maintained hope over the weekend the judge would grant the temporary restraining order. But even if the judge follows through and denies it, Damkar said, “it’s not fatal to the election contest lawsuit.”
Of highest priority, Damkar said, is preservation of all ballots and other evidence for use during further court proceedings. Eventually, he said, Marian Cruz hopes to have the race’s results zeroed out for a new vote in November.
Absent voters are allowed to designate a family or household member to return ballots to the Elections Office. At least eight ballots were returned from District 5 voters by unauthorized designees. And Damkar believes, with the additionally questioned ballots, there are enough uncertainties to potentially overturn the election – a contention he must prove to the judge.
Damkar was previously prepared to represent Bob Cruz’s campaign manager, Ruben Lopez, on the same legal challenge. But Lopez couldn’t be the plaintiff because he’s not a District 5 resident.
Both Bob and Marian Cruz declined to comment on the matter. As to why Bob Cruz didn’t file the suit himself, Damkar responded, “I can’t comment on that. Any elector in the district could file it.”
Damkar also contended that LULAC is not directly involved in the legal challenge. The Cruz’s and Lopez are active in the Latino advocacy organization. And LULAC previously commissioned a private investigation into the ballot issue – the investigators backed out when the county authorized its own probe.
That investigation is being conducted by a Santa Cruz inspector – he was hired by District Attorney John Sarsfield, which the Board authorized for up to $20,000.
Through the canvassing process, a routine check after every election, De La Cruz maintained a 10-vote lead through Friday.
Elections workers found one extra ballot in De La Cruz’s favor. But one resident also voted twice – “accidentally,” Hodges said – for De La Cruz.
That happened because she initially mailed in her absentee. She then realized it may not arrive to the Elections Office on time and voted on a provisional ballot at the polls. The mailed ballot arrived on election day, Hodges said.
Regardless of what happens Monday, Marian Cruz plans to contest the election to spare time for the investigation’s completion, Damkar said.
Hodges said the election challenge is “new territory” for the Elections Office officials and, “as far as I know,” for Tobias and Damkar as well.
Hodges, meanwhile, insists the votes should count.
“I’m satisfied with the numbers,” he said. “I’m satisfied with the outcome.”
