Did emergency orders skew Assembly primary election?

Did the coronavirus skew the results of an Assembly primary election, and should up to three-dozen disallowed absentee votes be counted?

Federal Judge Kimberly J. Mueller of the Eastern District of California took on this question during a remote hearing on Thursday, peppering both sides with questions for more than 90 minutes. The case was brought by candidate Christina Fugazi, who finished third by just 30 votes in the March 3 primary. Fugazi v. Padilla, 2:20-cv-00970-KJM-AC (E.D. Cal., filed May 12, 2020).

The plaintiffs also include 13 voters in the Stockton-area district who say their ballots were improperly thrown out due to perceived signature mismatches or other issues. They are seeking to have up to 50 disputed ballots included in an ongoing recount that was triggered by the close finish.

Stockton attorney N. Allen Sawyer said his clients are also seeking a temporary restraining order preventing the county registrar and secretary of state from certifying the election results before the case is decided.

"We didn't want to allow the recount to finish prior to this being heard," Sawyer told Mueller.

The complaint filed by Sawyer and attorneys with the Law Office of Hastings & Ron said the certification deadline for the election was suspended by Gov. Gavin Newsom's emergency orders designed to fight the spread of the coronavirus.

It also argues that the closures of the registrar's office and their clients' fear of contracting the virus prevented these voters from addressing the problems with their ballots in a timely manner. Mueller repeatedly asked if any of the plaintiffs were subject to greater protections due to age, disability or language.

"The executive order did not require the counties to wait to certify," countered Alan R. Anderson Jr., in-house attorney to Secretary of State Alex Padilla.

Anderson and Christopher E. Skinnell of Nielsen Merksamer Parrinello Gross & Leoni LLP, who is representing Registrar Melinda Dubroff, also attacked the timing and other aspects of the claims. Each claimed the voters had ample opportunities to address problems with their ballots, but did not do so.

Mueller took the matter under submission and said she would issue a ruling this week.