Thousands of military and Latino voters could be disenfranchised as court determines hastily scheduled contest fails to meet federal requirements of Voting Rights Act...

Brad Friedman Byon 5/13/2010, 5:50pm PT

The disputed upcoming special election in California's Senate District 15 may be on hold, at least for a day or two, as a federal district court has ordered [PDF] the five counties involved in the election to withhold the distribution of absentee, overseas and military ballots, pending the results of a hearing now set for May 20th in federal district court.

Yesterday, U.S. District Court Judge Jeremy Fogel set next week's hearing, requiring the state "to show cause, if any they have, why they, their agents, servants, employees and those in active concert or participation with them, should not be restrained and enjoined pending trial of this action from accepting any ballots, including absentee ballots, or operating any polling place in connection with the special primary election" as currently scheduled.

The compressed schedule for the election has given rise to complaints from county registrars, concerns that the hastily set date for the contest would lead to disenfranchisement of overseas military voters, and a lawsuit filed by Hispanic voters charging the election fails to comply with federal Voting Rights Act of 1965.

Rather than consolidating the special election with pre-existing general election dates, Governor Arnold Schwarzenegger recently declared the special election --- to fill a vacancy in the state Senate following his appointment of former State Senator Abel Maldonado as Lieutenant Governor --- would take place on June 22nd.

In two previous articles, The BRAD BLOG has detailed how the issue has rankled election officials and voters alike, yet the Governor's office has so far failed to make accommodations for those serious concerns from several different corners...

The BRAD BLOG has previously reported that the compressed election schedule means that thousands of overseas military voters might be unable to receive their absentee ballots by mail and return them in time to be counted.

In that same report we detailed the "outrage" of local election officials who had sent a letter [PDF] to the Governor detailing several "barriers" they faced in complying with his recent proclamation for a June 22nd election. That date comes on the heels of California's previously scheduled state primary election just weeks before. The additional election, officials charge, will cost the cash-strapped counties upwards of $6 million and will "definitely disenfranchise" thousands of voters.

The day following our initial report, we followed up with another when three Latino voters in Monterey County --- one of the five counties included in SD 15 (the others are San Luis Obispo, Santa Barbara, Santa Clara, and Santa Cruz) --- subsequently filed suit [PDF] seeking a preliminary injunction and temporary restraining order, charging that the June 22nd date did not allow sufficient time for mandatory "pre-clearance" for the special election by the U.S. Department of Justice under Section 5 of the Voting Rights Act (VRA).

The lawsuit, funded by the state Democratic Party, contends that the compressed schedule will "thwart voter turnout within minorities communities" and "will disenfranchise Latino voters in Monterey County." The county is one of four in the state to be covered by the VRA, requiring federal pre-clearance for changes to election law in jurisdictions where minority voters have been historical disenfranchised.

Yesterday's order from Fogel finds "the special elections cannot proceed in the absence of Section 5 preclearance" from the DoJ. It puts a temporary hold on county election officials' plans to try and accommodate voters, given the shortened schedule, by sending out generic write-in ballots, along with a list of official candidates when it becomes available, via email to "special absentee voters".

Earlier in the day yesterday, prior to the judge's order, Monterey County's Registrar of Voters Linda Tulett had submitted a 5-page declaration [PDF] to the court, detailing the extraordinary efforts her office, and those of the other counties, are preparing in order to attempt to reach the affected voters since they will be unable to comply with the statutory 45-day minimum requirement for sending out ballots via the U.S. Postal Service.

Tulett's declaration states that she has attempted to contact the county's 893 "special absentee voters" (a subset of absentee votes which includes overseas military and other overseas absentee voters) via mail in hopes of receiving an email address so they may be sent "a generic write-in ballot and copy of the Secretary of State’s certified list of candidates ... with instructions for filling out the write-in ballot and returning it to the Elections Department by facsimile transmission."

Retired Army and Marine Corps officer Scott Dick, a talk-radio host in Monterey, has reported that more than 2,000 military voters could effectively be disenfranchised by Schwarzenegger's special election date.

For its part, the state has conceded to the court that "the special primary and special run-off elections in question are changes in voting procedures within the meaning of Section 5 of the Voting Rights Act of 1965" and that Monterey "is a covered jurisdiction pursuant" to that act.

Those facts now compel the U.S. 9th District Court in Northern California to determine a remedy to the problem.

What the state intends to do about it --- and why they haven't already changed the date of the election on their own accord to consolidate it with the general election and meet the concerns of election officials as well as military and minority voters --- will likely be made clear at next Thursday's court ordered hearing in front of three federal judges.

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