Judge Harry Tobias ruled that a challenge to the District 5
supervisor race came too early and lifted a temporary restraining
order Tuesday to allow the county clerk to certify the election
results.
Judge Harry Tobias ruled that a challenge to the District 5 supervisor race came too early and lifted a temporary restraining order Tuesday to allow the county clerk to certify the election results.
Clerk John Hodges, therefore, met the state’s Tuesday deadline for a certification of the San Benito County results. The judge agreed with Hodges’ contention that a certification must happen before an official challenge can be pursued.
Hodges was pleased because a certification means his office’s obligation could be met with the Secretary of State’s Office, he said. The state requires certification of the numbers within 28 days of election day, and the Board of Supervisors must officially certify winners by April 10, according to a press agent with the state office.
“I’m done,” Hodges said. “They can come investigate me all they want. Everything’s open.”
The ruling by Tobias also means incumbent Bob Cruz’s wife, Marian, must amend her lawsuit filed Friday challenging the District 5 result. Next, it’s up to the Board to certify or deny the winners of the election at its meeting next Tuesday.
“He’s the winner of the election,” Hodges said of Jaime De La Cruz, who won by 10 votes, “until it’s contested.”
It was unclear going into Tuesday what type of meeting, if any, would be held involving the suit’s parties and the judge. The next court appearance had been scheduled for Tuesday, but Hodges had voiced concern over urgency with the state’s approaching deadlines.
Marian Cruz’s lawyer, Harry Damkar, said he first heard of a possible hearing at 9:30 – about a half-hour before it began. Even the judge expressed confusion when a band of suited lawyers showed up with Hodges and other elections officials in his courtroom at 10 a.m.
“I don’t mind advancing it or hearing it if everybody’s on notice,” said Tobias, referring to Damkar’s absence at the time. Minutes later, though, Damkar walked through the courtroom door, and Tobias agreed to place a hearing on his schedule for 11 a.m.
Meanwhile, an investigation continues by an outside inspector into allegations of improper absentee ballots in the District 5 race.
Marian Cruz wanted to preserve the temporary restraining order to allow the investigator more time – hoping Santa Cruz inspector Aaron Tripp could compile more evidence in Bob Cruz’s favor.
Damkar, though, expressed confidence there’s enough evidence now – the original suit cites 13 questionable ballots – to potentially nullify the results and set up a redo race in November. In January, the winner of the race is sworn in.
“I don’t think this is going to have any effect on the actual lawsuit,” Damkar said shortly after the ruling, even though his client objected to lifting the restraining order.
Hodges has contended that a certification must come first since the controversy arose more than three weeks ago.
That’s when the Elections Office tabulated the final absentee ballots and De La Cruz overtook Cruz’s lead and unofficially won by 10 votes.
Eight absentee ballots are in question because they were improperly returned to the Elections Office. Absent voters can designate only certain family or household members to return ballots – not friends or others such as nieces and nephews, according to the election code.
The original suit cited another five ballots that Marian Cruz contends should also be disqualified. They include two mailed by De La Cruz – a practice that is also improper.
The candidate says the Post Office lost those two ballots, and they were never counted – and that he was advised by elections officials that he could legally mail others’ ballots.
When he first learned of the ruling, De La Cruz on Tuesday was relieved but also expressed skepticism about the Board’s discretion on whether to certify the winners.
The Board, after all, commissioned the investigation. And at least one of its members, Ruth Kesler, has referred to the results as fraudulent.
“The public made a vote,” De La Cruz said. “If the Board wishes to go against the public’s vote, then, well, they’re the Board of Supervisors.”
