Assembly candidate wants ballots counted under extension governor granted

Election-related lawsuits are a regular fact of life in Sacramento. But one filed this week adds a twist: the coronavirus.

In the March 3 primary, Christina Fugazi finished third in a race for an Assembly seat, by just 30 votes. Under California law, the top two finishers in the primary advance to the November general election.

The next day, Gov. Gavin Newsom declared a public health emergency, and began issuing a wave of shutdown and stay-at-home orders. Those orders, Fugazi's attorneys claim, triggered a new set of deadlines they say were not honored by the county registrar when she refused to count dozens of mail-in ballots. Fugazi v. Padilla, 2:20-at-00467 (E.D. Cal., filed May 12, 2020).

The complaint was filed by N. Allen Sawyer of Rosenfeld & Sawyer and Charles L. Hastings and Natali A. Ron of Hastings & Ron. Both firms are in Stockton.

Their complaint makes claims under the First and 14th Amendments, the due process clause of the Constitution, the Voting Rights Act and the Americans with Disabilities Act. The plaintiffs include 13 voters who say their mail-in ballots were improperly thrown out.

Fugazi alleges that between 36 and 50 ballots were improperly rejected by San Joaquin County Registrar Melinda Dubroff's office due to perceived signature discrepancies. She named Dubroff and California Secretary of State Alex Padilla as defendants.

Under normal circumstances, voters would be mailed a notice their signatures did not match and be given until March 25 to contact the registrar to certify their vote. Under a March 23 memo issued by Padilla in response to a March 20 executive order from Newsom, however, Fugazi's attorneys said voters had until April 15 to fix mismatched signatures and until April 21 to correct a ballot that had no signature. She is seeking to have the disputed signatures included in the recount.

"The defendants understood the dangers of COVID-19 presented during the primary election and cavalierly (and for clearly political reasons) refused to take action to accept the modified deadlines to certify the election granted by the governor," the complaint stated.

Fugazi, a Stockton city councilwoman, claims the distance between her and second-place finisher Kathy Miller, a member of the Stockton County Board of Supervisors, has dropped to just 22 votes in the ongoing recount. Each finished four percentage points behind County Supervisor Carlos Villapudua. All three are Democrats.

"The timing of everything was noteworthy, in terms of when the election was actually certified and the way the tabulation was going in terms of counting the votes that were coming in," Ron said when reached on Wednesday,

Hastings and Ron also filed a similar complaint in state court, Fugazi v. Dubroff, STK-CV-UWM-2020-3888 (San Joaquin Super. Ct., filed April 30, 2020). County court records indicate the original judge in that case, Jayne C. Lee, has recused herself.

Ron said she did not know why Lee recused, but added they have chosen to pursue only the federal case in order to make their constitutional claims.

Miller's campaign, the registrar's office and the county did not reply to emails seeking comment.