A conference scheduled for Monday involving a judge and parties
in the lawsuit challenging the results of the District 5 supervisor
race was put off a day.
A conference scheduled for Monday involving a judge and parties in the lawsuit challenging the results of the District 5 supervisor race was put off a day.
Marian Cruz’s lawyer, head elections official John Hodges and Superior Court Judge Harry Tobias planned to meet today at 10 a.m. Still on the line – whether a temporary restraining order forbidding Hodges to certify the election should carry forward.
Marian Cruz filed a lawsuit March 26 contesting the District 5 election result. Her husband, incumbent Bob Cruz, unofficially lost by 10 votes to Jaime De La Cruz. Marian Cruz, according to her lawyer Harry Damkar, wants to allow investigators time to compile evidence that could potentially nullify the election.
An inspector with the Santa Cruz District Attorney’s Office has been examining the issue, and private investigator Dave Henderson, representing a newly formed watchdog organization, has recently scrutinized the suspicions as well.
Furthermore, the Board of Supervisors’ hired-lawyer Nancy Miller on Monday confirmed the Secretary of State’s Office has also assigned an investigator to the San Benito County controversy.
In question are eight absentee ballots improperly returned to the Elections Office, along with allegations in the suit that three ballots were illegally cast and that two were illegally mailed.
Marian Cruz hopes enough ballots can be voided to make up the 10-vote lead and nullify the result – which could set the stage for another race in November.
A temporary restraining order would halt Hodges’ planned certification of the election results – the state requires that by today, 28 days after Election Day. If the two sides don’t agree today to lift the restraining order, there would be a hearing April 6 to consider further court action.
Tobias had requested that both sides meet Monday, without him, to hash out whether to lift the restraining order. Hodges met with Damkar, and after the morning discussion Damkar consulted with Cruz, who rejected the idea of lifting the restraining order.
“We’re going to just leave the restraining order in place right now,” Damkar said. As to why Cruz made that decision, Damkar said, “Well, I really can’t comment on that due to attorney-client privilege.”
Hodges continually contends he must certify the election results before an official challenge moves forward.
“In order to do this right, you’ve got to go through these different procedures that are set in the elections code,” Hodges said.
Elections officials throughout the state are supposed to officially certify their results by today. That is followed by approval of those results at the Board level and a subsequent submittal to the state by April 6, according to Doug Stone with the Secretary of State’s press office.
Stone’s reaction to the fiasco in San Benito County?: “It’s not a common event.”
He went on, addressing the state’s final deadline of April 10 for counties to submit results. “That is the deadline. That is the deadline. Now, with a court order, I couldn’t address that.”
Bob and Marian Cruz declined to comment on the matter. De La Cruz returned to town late Sunday and first learned of the suit Monday.
“Boy, I’m kind of speechless at the moment,” he said.
“I’m definitely going to seek an elections lawyer,” said the previously non-represented De La Cruz. “They’re just nitpicking at every little thing.”
Beyond the eight absentee ballots – which all sides have conceded were improper – the suit alleges two ballots De La Cruz mailed should be disqualified.
De La Cruz, however, said the Post Office lost those two ballots, and they were never counted. Furthermore, he said he was advised by the Elections Office that the practice is legal, which it is not.
One of those two ballots came from De La Cruz’s niece, Yesenia De La Cruz, according to the suit. According to Henderson, who said he interviewed her, she claims she did not even vote for her uncle. She could not be reached by the Free Lance.
The suit also alleges a resident voting absentee in District 5, Marin Arreola, moved from San Benito County to Portland, Ore., “prior to the time allowed in the elections code.” The Arreola family includes three generations of men named Marin, according to Henderson. It is unclear whether the suit cited the correct one.
Henderson has offered all his findings to the County Counsel’s Office, and, he said, “so far, they haven’t responded to me.”
Regarding the eight improperly returned absentee ballots that started the speculation, De La Cruz said he doesn’t even know five of the voters.
“They’re making the assumption they’re all mine,” he said regarding the suit’s claim that all 13 ballots in question favor De La Cruz. “Why don’t they start looking at all the districts? Let’s go after all the elections in the past.”
