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Court of Appeal:
Vote-Tallying Observer Need Not Be Given Close-Up Position
Gilbert Says Statute Does Not Require Being Able to See Signature on Registration and on Ballot Envelope
By a MetNews Staff Writer
A statute authorizing the presence of observers at the counting of mailed-in ballots does not contemplate those watching the election workers being provided a position close enough to see, on the computer screen, the signature provided by an elector when registering to vote and that appearing on the return envelope, Div. Six of the Court of Appeal for this district has declared.
Presiding Justice Arthur Gilbert authored the unpublished opinion, filed Friday. It affirms Ventura Superior Court Judge Henry J. Walsh’s denial of a declaratory judgment sought by Election Integrity Project California, Inc. (“EIPC”), nonprofit public benefit corporation. That group asserts that Ventura County’s then-clerk-recorder/registrar of voters, Mark A. Lunn, failed to abide by requirement of Election Code §15105 during the counting of mailed ballots in 2020 and 2021.
Gilbert said his panel was exercising its discretion to decide the appeal, despite mootness, because “the issues involved here—the rights of the election observers and the integrity of elections—are of continuing public interest.”
Statutory Language
Sec. 15105(d) provides, in part, that “vote by mail voter observers shall be allowed sufficiently close access to enable them to observe the vote by mail ballot return envelopes and the signatures thereon and challenge whether those individuals handling vote by mail ballots are following established procedures....”
Although the statute requires that observers be close enough to “observe…the signature,” Walsh and Gilbert put the emphasis on the purpose of allowing public viewing—determining whether the proper procedures were being utilized.
Walsh found:
“The observer is there to ensure that the elections worker is following ‘…established procedures….’ Here, that means that the elections worker is doing what he or she is supposed to be doing, i.e. comparing signatures so as to validate the vote-by-mail submission by a voter. The procedures in place and being examined in this case allow for that. The observer can see that two signatures came up on the worker’s screen and the worker either found a match, or made a finding that there was not a match. Those are the ‘procedures,’ and that is what the election worker is doing. That is what the observer is allowed to observe, and that is all they are allowed to observe in their role as an observer.”
Gilbert’s Opinion
Agreeing, Gilbert wrote:
“Section 15104, subdivision (d) requires no more than what the trial court found. In apparent recognition that the express words of section 15104, subdivision (d) require no more, EIPC relies on the legislative summary of Assembly Bill No. 1573. The summary states in part: ‘[Observers] must be allowed to observe the comparison of a signature on the [vote-by-mail] ballot envelope with the signature on that voter’s affidavit of registration.’
“It is difficult to discern what point EIPC is trying to make. If it is trying to assert that the observers must be close enough to be able to compare the signatures themselves, it provides no support for the argument. First, the words of the subdivision prevail over the summary. Second, not even the summary requires what EIPC says it does. The summary says only that the observers must be close enough to ‘observe the comparison,’ that is, observe that the comparison is being made by election workers. The summary does not say that the observers themselves must be able to make the comparison. Had the Legislature intended that observers must be close enough to be able to make the comparison themselves, it would have said so.”
The case is Election Integrity Project California v. Lunn, B333507.
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