Demurrer to Writ of Mandate

123456789101112131415161718192021222324CHARLES H. BELL, JR. [060553]JIMMIE E. JOHNSON [223344)]Bell, Mcandrews & Hiltachk455 Capitol Mall, Suite 801Sacramento, California 95814Telephone: (916) 442-7757Facsimile: (916) 442-7759RICHARD E. WINNIE [68048]County CounselBy: NANCY FENTON [73343]Deputy County CounselCounty of Alameda1221 Oak Street, Suite 450Oakland, California 94612-4296Telephone: (510) 272-6700Fax: (510) 272-5020Attorneys for Respondent DefendantCounty of Alameda and BRADLEY CLARKAlameda County Sheriff’s OfficeSUPERIOR COURT OF THE STATE OF CALIFORNIAAMERICANS FOR SAFE ACCESS; JAMESBLAIR; MICHAEL L. GOODBAR; andDONALD O. TOLBERT,v.Petitioners, Plaintiffs and Contestants,COUNTY OF ALAMEDA; BRADLEY CLARK,in his official capacity as Registrar of Votersfor the County of Alameda; CITY OFBERKELEY; and DOES 1 through 20,inclusive,Respondents and Defendants.COUNTY OF ALAMEDACase No. RG04-192053RESPONDENTS/DEFENDANTSCOUNTY OF ALAMEDA ANDBRADLEY CLARK’S DEMURRERTO VERIFIED PETITION FOR WRITOF MANDATE, COMPLAINT FORDECLARATORY AND INJUNCTIVERELIEF, AND STATEMENT OFCONTEST; AND MEMORANDUMOF POINTS AND AUTHORITIESHearing Date: March 7, 2005Time: 9:00 a.m.Dept: 31Judge: Hon. James A. RichmanPetition Filed: December 30, 200425262728

123456789101112131415161718192021222324252627TABLE OF CONTENTSTABLE OF AUTHORITIES ..................................................... iiiINTRODUCTION ............................................................ 1GROUNDS FOR DEMURRER .................................................. 2I. THE PETITION AND COMPLAINT FAILS TO STATE FACTSSUFFICIENT TO CONSTITUTE A CAUSE OF ACTION ....................... 2A. First Cause of Action ................................................ 3B. Second Cause of Action .............................................. 3C. Third Cause of Action ................................................ 4D. Fourth Cause of Action ............................................... 5E. Fifth Cause of Action ................................................ 5F. Sixth Cause of Action ................................................ 5G. Seventh Cause of Action ............................................. 5H. Eighth Cause of Action ............................................... 6MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER ........ 6ARGUMENT ................................................................ 6I. PETITIONERS’/PLAINTIFFS’ CLAIMS FAIL TO STATE A CAUSE OF ACTION ..... 6A. Respondent/Defendant Clark’s Decision to Decline Ms. Goldsberry’sRequest Was Not a Violation of the Law ................................. 71. A Recount Is Not an Audit .......................................... 72. Elections Code Section 15630 Provides the Registrar of Voterswith the Power to Deny a Request for Relevant MaterialsSubject to Abuse of Discretion ...................................... 8B. Petitioners/Plaintiffs Petition for Writ of Mandamus Pursuant to Codeof Civil Procedure section 1085 and Elections Code section 13314Is Improper ........................................................ 9C. Petitioners/Plaintiffs Have a Plain, Speedy, and Adequate Remedyat Law ........................................................... 10D. Causes of Action 2-8 Are Based Upon the Same Allegation at theRoot of the First Cause of Action ...................................... 1128Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053Page i

12345II.THE REQUEST FOR JUDICIAL SUPERVISION OF FUTURE ELECTIONRECOUNTS IS UNPRECEDENTED, UNWARRANTED, UNRIPE ANDLACKS A NECESSARY PARTY – THE SECRETARY OF STATE ............... 11A. Plaintiffs/Petitioners Seek Judicial Supervision of Matters Relatingto Voting Machines For Which the Legislature Has Delegated ApprovalAuthority to the Secretary of State and County Boards of Supervisors. ......... 11B. A Court Is Not the Proper Venue for Legislative Action ..................... 126CONCLUSION ............................................................. 1378910111213141516171819202122232425262728Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053Page ii

123456789101112131415161718192021222324TABLE OF AUTHORITIESFEDERAL CASESBenavidez v. Shelley (American Association for Persons with Disabilities v.Shelley) F.Supp.2d__ [2004 WL 1532433] ............................................................................... 12Weber v. Shelley (9 th Cir. 2003) 347 F.3d 1101 ....................................................................... 12CALIFORNIA CASESBarnes v. Wong (1999) 33 Cal.App.4th 390 ............................................................................. 13California State Auto. Assn. Inter-Ins. Bureau v. Garamendi (1992) 6 Cal.App.4th 1409 ........ 13Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 .............................................. 12Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791 ........................................... 12, 13Taft v. Haas (1917) 34 Cal.App. 309 ........................................................................................ 10CALIFORNIA STATUTESCode of Civil Procedure:§ 430.10 .................................................................................................................. 3, 4, 6§ 526 ............................................................................................................................... 2§ 1060 ............................................................................................................................. 2§ 1085 ......................................................................................................................... 2, 9§ 1089 ............................................................................................................................. 6§ 1094.5 ........................................................................................................................ 12Elections Code:§ 13314 ................................................................................................................. 2, 9, 12§ 15630 ................................................................................................................... 1, 7, 8§ 16000 ................................................................................................................... 3, 4, 7§ 16002 ........................................................................................................................... 6§ 16100 ................................................................................................................. 2, 9, 10§ 18000 ......................................................................................................................... 10§ 19200-19202 .............................................................................................................. 12§ 19205 ......................................................................................................................... 12§ 19207-19209 .............................................................................................................. 12§ 19210 ......................................................................................................................... 12OTHER SOURCESAmerican Heritage Dict. (4th ed. 2000) ...................................................................................... 725262728Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053Page iii

12345678910111213141516171819202122232425262728INTRODUCTIONRespondents/Defendants County of Alameda and Bradley Clark, Registrar of Voters for theCounty of Alameda, demur to Petitioners/Plaintiffs’ Petition for Writ of Mandate, Complaint forDeclaratory and Injunctive Relief, and Statement of Contest (“Complaint”).Measure R was a City of Berkeley ballot measure in the November 2, 2004 GeneralElection. After the first count of all the votes for the ballot measure had been completed, MeasureR failed by 191 votes. On November 30, 2004, Respondent/Defendant Clark certified the electionresults, including the result for the Measure R contest.On December 3, 2004, Debby Goldsberry, a member of Petitioner/Plaintiff Americans ForSafe Access, requested a recount of all votes cast in the Measure R contest. Included with therecount request, Goldsberry requested to inspect certain election materials, including (1) theredundant vote data stored on the DRE machines, (2) chain-of-custody documentation and systemaccess logs for all components of the DRE system used in the election, and (3) audit logs, logic &accuracy test results. Respondent/Defendant Clark denied the request of some of these materialsdue to the fact that they were not relevant to a recount of the election.On December 13, 2004, Respondents/Defendants commenced the requested recount. Therecount included a traditional recount of the cast paper provisional and absentee ballots. Therecount proponents declined to count paper ballot images from all the electronic votes cast fromeach of the PCMCIA cards used in the DRE machines in the Measure R election as offered byRespondents/Defendants. Instead the proponents requested and received an electronic recountof all of the PCMCIA cards used in the DRE machines to ascertain the electronic vote. The recountof these paper and electronic ballots resulted in no change in the outcome of the contest, andPetitioner/Plaintiff Clerk concluded the Measure R recount on January 7, 2005.Both before and during the recount process, Ms. Goldsberry on behalf of herself and theAlliance of Berkeley Patients asserted that she was entitled to review the variety of materials listedabove, which they characterized as “relevant materials” to the conduct of the recount.Respondent/Defendant Clark advised the recount proponents that the requested materials werenot ///Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 1

12345678910111213141516171819202122232425262728“relevant” to the recount of the ballot measure pursuant to Elections Code Section 15630 and thatthis determination was left to his discretion.GROUNDS FOR DEMURRERI. THE PETITION AND COMPLAINT FAILS TO STATE FACTS SUFFICIENT TOCONSTITUTE A CAUSE OF ACTIONRespondents/Defendants COUNTY OF ALAMEDA and BRADLEY CLARK generally demurto the First, Second, Third, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action in theComplaint. The primary ground for demurrer to the First, Second, Third, Fourth, Fifth, Sixth,Seventh, and Eighth Causes of Action is based upon the assertion that Respondent/DefendantClark’s determination that the requested materials listed above were irrelevant to the recountprocess, and his subsequent denial of Ms. Goldsberry’s request for such materials was not aviolation of the law.The secondary ground for demurrer to the First, Second, Third, Fourth, Fifth, Sixth, andSeventh Causes of Action is based upon the assertion that an allegation of improper conduct byelection officials must be made in the form of an election contest. The demurrer to the EighthCause of Action is based upon the assertion that Petitioners/Plaintiffs fail to allege facts that amountto improper conduct by Respondents/Defendants County of Alameda and Bradley Clark. TheComplaint under the guise of general statutes (Code of Civil Procedure sections 1085, 1060, 526and 526a, Elections Code sections 13314, 16100, et seq.) seeks court supervision of the conductof future recounts, under standards committed by state law to election officials to develop and tothe Registrar of Voters to administer under applicable law. The Secretary of State, the ChiefElection Officer of the State of California, is a necessary party to such an action.Petitioners/Plaintiffs lack standing to establish rules of general applicability or detailedadministrative standards for the conduct of future election recounts. The development of suchstandards is within the purview of the Legislature, or is committed by statute to election officials ofthe jurisdiction in which the recount is requested. The judiciary is without authority to write recountstandards in the context of civil litigation. Finally, the Complaint lacks ripeness, because it seeks///Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 2

12345declaratory and injunctive relief to impose standards of general applicability for recounts, and thereis no pending recount to which such standards could apply.A. First Cause of ActionPetitioners/Plaintiffs’ First Cause of Action alleges that Respondents/Defendants failed toperform an act specifically required by law when Respondent/Defendant Clark declined to provide6Ms. Goldsberry with every item of election material she requested. 1As set forth in more detail7891011121314151617181920212223242526below, such an allegation fails to assert a violation of the law. Furthermore, the proper course ofaction for Petitioners/Plaintiffs to pursue such an allegation was either to seek injunctive reliefduring the pendency of the recount (or immediately thereafter prior to the recount’s certification),or through the election contest provisions of Elections Code sections 16000, et seq.As Respondent/Defendant Clark’s decision to decline Ms. Goldsberry’ request was not aviolation of the law, and the proper course of action, as mandated by the Legislature, for pursuinga complaint alleging improper conduct by an elections official was either injunctive relief during therecount or immediately thereafter - an action now “moot” as a result of the recount’s completion -or an election contest, Petitioners/Plaintiffs’ First Cause of Action fails to allege facts sufficient toconstitute a cause of action, and the allegation is subject to demurrer. (California Code of CivilProcedure section 430.10(e).)B. Second Cause of ActionPetitioners/Plaintiffs’ Second Cause of Action re-alleges that Respondents/Defendants failedto perform an act specifically required by law when Respondent/Defendant Clark declined toprovide Goldsberry with every item of election material she requested. The Second Cause ofAction also alleges that Defendant Clark’s declination indicates a policy and practice to continuesuch refusals in the future, threatens irreparable and substantial harm to Petitioners/Plaintiffs, andthat Petitioners/Plaintiffs do not have a plain, speedy, and adequate remedy at law.As detailed in Respondents/Defendants’ demurrer to the First Cause of Action, such anallegation fails to assert a violation of the law. Furthermore, the Legislature provided2728 1 Petitioner/Plaintiffs equate a “meaningful” recount only with one in which Respondent/Defendant Clark provides themwith every item of election material they request - regardless of whether the item is actually relevant to determining theaccuracy of the cast vote count.Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 3

12345678910111213141516171819202122232425262728Petitioners/Plaintiffs with a plain, speedy, and adequate remedy at law - either injunctive reliefduring the recount or immediately thereafter, or the election contest process laid out in ElectionsCode sections 16000, et seq. Petitioners/Plaintiffs failed to file a timely complaint for injunctiverelief prior to the recount’s completion, rendering a mandamus petition “moot.” However,Petitioners/Plaintiffs have attempted to exercise the plain, speedy, and adequate remedy of anelection contest in this very action as starkly evident in their contingent Eighth Cause of Action.This Court does not hold the authority to provide Petitioners/Plaintiffs two bites of the apple andcreate additional opportunities to contest an election not provided for by the legislative branch ofgovernment.Again, as Respondent/Defendant Clark’s decision to decline Ms. Goldsberry’s request wasnot a violation of the law, and as the proper course of action, as mandated by the Legislature, forpursuing a complaint alleging improper conduct by an elections official was either injunctive reliefduring the recount or immediately thereafter - an action now “moot” as a result of the recount’sconclusion - or an election contest, Petitioners/Plaintiffs’ Second Cause of Action fails to allegefacts sufficient to constitute a cause of action, and the allegation is subject to demurrer. (CaliforniaCode of Civil Procedure section 430.10(e).)C. Third Cause of ActionPetitioners/Plaintiffs’ Third Cause of Action re-alleges that Respondents/Defendants failedto perform an act specifically required by law when Respondent/Defendant Clark declined toprovide Goldsberry with every item of election material she requested. The Third Cause of Actionalso alleges that Defendant Clark’s declination indicates that a dispute has arisen as to therequirements of law regarding recounts.Again, Respondent/Defendant Clark’s decision to decline Ms. Goldsberry’s request was nota violation of the law, and the Legislature has provided the method of resolving this dispute eitherby injunctive relief during the recount or immediately thereafter, or the election contest process laidout in Elections Code sections 16000, et seq. As such, Respondents/Defendants reassert theirpoints in support of a demurrer with respect to the previous causes of action.///Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 4

12345678910111213141516171819202122232425262728///D. Fourth Cause of ActionPetitioners/Plaintiffs’ Fourth Cause of Action re-alleges that Respondents/Defendants failedto perform an act specifically required by law when Respondent/Defendant Clark declined toprovide Goldsberry with every item of election material she requested. The Fourth Cause of Actionalso alleges that Defendant Clark’s declination deprived Petitioners/Plaintiffs of their rights to havetheir votes counted.Respondents/Defendants reassert their points in support of a demurrer with respect to theprevious causes of action.E. Fifth Cause of ActionPetitioners/Plaintiffs’ Fifth Cause of Action re-alleges that Respondents/Defendants failedto perform an act specifically required by law when Respondent/Defendant Clark declined toprovide Goldsberry with every item of election material she requested. The Fifth Cause of Actionalso alleges that Defendant Clark’s declination deprived Petitioners/Plaintiffs of their rights to equalprotection.Respondents/Defendants reassert their points in support of a demurrer with respect to theprevious causes of action.F. Sixth Cause of ActionPetitioners/Plaintiffs’ Sixth Cause of Action re-alleges that Respondents/Defendants failedto perform an act specifically required by law when Respondent/Defendant Clark declined toprovide Goldsberry with every item of election material she requested. The Sixth Cause of Actionalso alleges that Defendant Clark’s declination deprived Petitioners/Plaintiffs of their rights toprocedural due process.Respondents/Defendants reassert their points in support of a demurrer with respect to theprevious causes of action.G. Seventh Cause of ActionPetitioners/Plaintiffs’ Seventh Cause of Action re-alleges that Respondents/Defendantsfailed to perform an act specifically required by law when Respondent/Defendant Clark declined toDemurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 5

12345678910111213141516171819202122232425262728provide Goldsberry with every item of election material she requested. The Seventh Cause ofAction also alleges that Defendant Clark’s declination deprived Petitioners/Plaintiffs of their rightsto substantive due process.Respondents/Defendants reassert their points in support of a demurrer with respect to theprevious causes of action.H. Eighth Cause of ActionPetitioners/Plaintiffs’ Eighth Cause of Action is a statement of a contingent Election Contest.Should the Court grant Respondents/Defendants’ demurrer against Causes of Action 1-7 for havingfailed to make such allegations by way of an election contest, Petitioners/Plaintiffs seek to revivetheir allegations by way of an election contest. However, again, Respondent/Defendant Clark’sdecision to decline Ms. Goldsberry’s request was not a violation of the law. Therefore,Petitioners/Plaintiffs’ Eighth Cause of Action fails to allege facts sufficient to constitute a cause ofaction, and the allegation is subject to demurrer. (California Code of Civil Procedure section430.10(e).)Respondents/Defendants also demur the Eighth Cause of Action on grounds that theStatement of Contest is uncertain, or there is a defect in parties, pursuant to Code of CivilProcedure section 430.10, subdivisions (d) and (f), because the Statement of Contest names theCOUNTY OF ALAMEDA and BRADLEY CLARK, as Respondents, and said persons do not appearto be proper Respondents under California Elections Code section 16002.MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERARGUMENTI. PETITIONERS’/PLAINTIFFS’ CLAIMS FAIL TO STATE A CAUSE OF ACTIONCalifornia Code of Civil Procedure section 1089 provides that a respondent or defendantin an action may answer an allegation by demurrer. California Code of Civil Procedure section430.10 provides that one ground for a demurrer is the failure to allege facts sufficient to state acause of action. The entirety of the instant action is based upon Petitioners/Plaintiffs allegationthat Respondents/Defendants failed to perform an act specifically required by law whenRespondent/Defendant Clark declined to provide Goldsberry with every item of election materialDemurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 6

12345678910111213141516171819202122232425262728she requested. However, Respondent/Defendant Clark’s decision to decline Ms. Goldsberry’srequest was not a violation of the law. As such, each and every cause of action fails to allegefacts sufficient to state a cause of action.A. Respondent/Defendant Clark’s Decision to Decline Ms. Goldsberry’sRequest Was Not a Violation of the Law1. A Recount Is Not an AuditElections Code section 15630 provides, in part, “All ballots, whether voted or not, andany other relevant material, may be examined as part of any recount if the voter filing thedeclaration requesting the recount so requests.” Respondent/Defendant Clark advised Ms.Goldsberry that section 15630 provides for a recount only, not an audit of the entire electionprocess.Dictionaries variously define the noun “recount” as a “second or fresh count” or, as averb, “to count again.” Hence, the plain meaning of the term recount depends on the definitionof the word “count”. Dictionaries consistently define the verb “count” as the act of examiningand tallying each individual unit of a group: “to name or indicate one by one in order to find thetotal number”; “to list or call off the units of (a group or collection) one by one to ascertain thetotal”. Thus, a “recount” is simply a subsequent “count,” which in turn is merely a tabulation ofentries.Regardless of how one may try to stretch and skew the definition of “count,” its definitiondoes not include an investigation into the process of the entry submission. In contrast, the term“audit” is defined as “1. An examination of records or financial accounts to check theiraccuracy. [] 2. An adjustment or correction of accounts. [] 3. An examined or verifiedaccount.” (The American Heritage Dictionary of the English Language, Fourth Edition (2000),Houghton Mifflin Company.) An election contest is an audit of the election process, not arecount. (See Election Code section 16000, et seq.)The limited scope of section 15630 is exemplified in the subsequent part of the section.No examination of any ballot shall include touching or handling the ballot withoutthe express consent of the elections official or the election officer supervising thespecial recount board. No ballot may be touched or handled during theexamination unless the elections official or the elections officer supervising thespecial recount is present to observe the examination.Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 7

12345678910111213141516171819202122232425262728Except as provided in this section no ballot shall be touched or handled by anyperson during the recount unless that person is the elections official, a personacting at the direction of the elections official, a member of the special recountboard, or by order of the superior court.As exemplified by this portion of section 15630, the provision does not contemplate thehandling of documents other than ballots or material that would aid in the actual counting of theballots. If section 15630 contemplated the examination of material other than that directlyrelated to the tabulation of entries, such as audit logs, chain-of-custody records, and logic andaccuracy test results, then the section would have included provisions regarding the handling ofsuch documents similar to the provisions above regarding the handling of ballots. Alteration ofsuch records, or the opportunity for alteration resulting from the unmonitored handling of suchrecords, is as great a concern and a potential “hornets’ nest” of problems as is the alteration ofballots, or opportunity thereof.2. Elections Code Section 15630 Provides the Registrar of Voters with the Power toDeny a Request for Relevant Materials Subject to Abuse of DiscretionAgain, section 15630 states, in part, “All ballots, whether voted or not, and any otherrelevant material, may be examined as part of any recount if the voter filing the declarationrequesting the recount so requests.” (Emphasis added.) Tellingly, the Legislature did notemploy the mandatory term, “shall,” but rather opted for the permissive word, “may.” TheLegislature repeatedly employs the term “shall” in a number of sections throughout the ElectionsCode. Therefore, its decision not to use the term in section 15630 must be interpreted as aconscious decision to furnish the elections official with the power to determine what is “relevant”and whether or not to provide other requested relevant materials. It can be easily assumed thatthe Legislature understands that some materials, though technically relevant, may be solaboriously or financially burdensome, or that the information provided by the materials maybeso unlikely to bear useful data, that the elections official, in his or her discretion, may deny therequest in the public interest of conserving resources.Most of the materials requested by Ms. Goldsberry were not only irrelevant, but were sounlikely to bear information useful to the retabulation of cast votes, that theRespondent/Defendant Clark’s decision to deny the request for the majority of these documentsDemurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 8

12was justified and not an abuse of discretion.///345678910111213141516171819202122232425262728Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 9

12345678910111213141516171819202122232425262728B. Petitioners/Plaintiffs Petition for Writ of Mandamus Pursuant to Code ofCivil Procedure section 1085 and Elections Code section 13314 Is ImproperPlaintiffs/Petitioners’ First Cause of Action is allegedly based upon Code of CivilProcedure section 1085 in conjunction with Elections Code section 13314. Code of CivilProcedure section 1085(a) provides:A writ of mandate may be issued ... to compel the admission of a party to the useand enjoyment of a right ... which the party is entitled, and from which the party isunlawfully precluded by such inferior tribunal, corporation, board, or person.In conjunction, Elections Code section 13314(a)(1) states:Any elector may seek a writ of mandate alleging that an error or omission hasoccurred, or is about to occur, in the placing of any name on, or in the printing of,a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglectof duty has occurred, or is about to occur.However, section 13314 provides for the remedy of mandamus for printing errors, noterrors committed by elections officials in the tabulation of votes. Section 13314 is found inDivision 13 of the Elections Code, entitled “BALLOTS, SAMPLE BALLOTS, AND VOTERPAMPHLETS.” Within Division 13, section 13314 is located within Chapter 4, itself entitled,“Sample Ballots and Voter Pamphlets.” Even a cursory read of Chapter 4 alerts the reader thatElections Code section 13314 is intended to provide interested parties with a legal vehicle tochallenge the ballot arguments and designations of opposing candidates and ballot measures,as well as official legislative analyses.Nothing within section 13314 provides an individual the right to the remedy ofmandamus for any and all challenges to official activity in conjunction with elections activity. Infact, the Legislature’s specific grant of the right to the remedy of mandamus for challenging theprinting of a sample ballot indicates the Legislature’s intent not to provide such remedy for anyand all challenges to official activity in conjunction with elections activity.An even stronger indicator of the Legislature limiting the remedy of mandamus inelections activity is the very specific remedy it provides in the form of elections contests.Elections Code sections 16100 provides for an election contest when one or more of sixallegations are made:Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 10

12345678910111213141516171819202122232425262728(a) That the precinct board or any member thereof was guilty ofmalconduct.(b) That the person who has been declared elected to an office was not,at the time of the election, eligible to that office.(c) That the defendant has given to any elector or member of a precinctboard any bribe or reward, or has offered any bribe or reward for thepurpose of procuring his election, or has committed any other offenseagainst the elective franchise defined in Division 18 (commencing withSection 18000).(d) That illegal votes were cast.(e) That eligible voters who attempted to vote in accordance with the lawsof the state were denied their right to vote.(f) That the precinct board in conducting the election or in canvassing thereturns, made errors sufficient to change the result of the election as toany person who has been declared elected.(g) That there was an error in the vote-counting programs or summationof ballot counts.At the very least, the specific inclusion of the elections contest remedy indicates that theLegislature intended that any allegation falling within the six categories listed above beadjudicated as an elections contest to the exclusion of other potential remedies. In fact,California courts have held that an election contest is an adequate remedy at law when a writ ofmandate seeks relief relating to an election. (Taft v. Haas (1917) 34 Cal.App. 309.)Again, Petitioners’/Plaintiffs’ First Cause of Action alleges that elections officialsimproperly conducted a recount of the votes cast in the Measure R contest. This allegation fallswithin categories (a), (f), and (g). As such, any allegation of improper conduct by electionsofficials regarding the recount of cast votes in the Measure R contest must be made by way ofan election contest, as mandated by the Legislature. The allegations of the Petition/Complaintinclude allegations arguably falling within one or more of the grounds for contest set forth insection 16100.C. Petitioners/Plaintiffs Have a Plain, Speedy, and Adequate Remedy at LawPetitioners/Plaintiffs’ Second Cause of Action requests that this court issue an injunctionagainst Respondents/Defendants from continuing to withhold certain information thatPlaintiffs/Petitioners’ deem relevant to a “meaningful recount.” Petitioners/Plaintiffs contend thatDemurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 11

123456789101112they have “no plain, speedy, and adequate remedy at law.” The disingenuousness of thisassertion is brazenly present in Petitioners/Plaintiffs’ own filing in the form of Cause of ActionEight - a statement of an election contest. An election contest is not only a plain, speedy, andadequate remedy at law, but as discussed above, it is the only remedy available toPetitioners/Plaintiffs as mandated by the Legislature.D. Causes of Action 2-8 Are Based Upon the Same Allegation at the Root ofthe First Cause of ActionAs discussed above, Petitioners/Plaintiffs’ First Cause of Action should be dismissed asit alleges improper conduct by elections officials which must be addressed by way of an electioncontest. Causes of Action 2-8 are based upon the same allegedly improper conduct. As such,these claims too must be addressed by way of an election contest as mandated by theLegislature.1314151617II.THE REQUEST FOR JUDICIAL SUPERVISION OF FUTURE ELECTION RECOUNTSIS UNPRECEDENTED, UNWARRANTED, UNRIPE AND LACKS A NECESSARYPARTY – THE SECRETARY OF STATEA. Plaintiffs/Petitioners Seek Judicial Supervision of Matters Relating toVoting Machines For Which the Legislature Has Delegated ApprovalAuthority to the Secretary of State and County Boards of Supervisors.Causes of Action 2-7 seek judicial imposition of detailed requirements for the1819202122232425262728preparation, maintenance and production as “relevant election materials” for future electionrecounts. Many of these requirements are vague and difficult to understand (e.g., Pet. 20:17 -20:21: “produc[e] during ... all future recounts all relevant election materials necessary to themeaningful recount of votes cast on DRE systems, including (1) redundant vote data stored onthe DRE machines; (2) chain-of-custody documentation and system access logs for allcomponents of the DRE system used in the election, and (3) audit logs, logic & accuracy testresults, and other documentation of proper system function.”) Issuance of such an injunction ormandate would require continuing judicial supervision of elections, a result that is bothunprecedented and unwarranted. Petitioners/Plaintiffs have no standing to seek such a judicialorder, because there is no statutory basis for such interference with the administration ofelections.Demurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 12

1///2345678910111213141516171819202122232425262728Petitioners/Plaintiffs lack standing because they challenge administrativedeterminations made by election officials and the local governing body which were undertakenin conformity with existing law. California law vests the authority to approve and certify votingmachine technology in the California Secretary of State. (Elections Code sections 19200-19202, 19205, 19207-19209; Benavidez v. Shelley (CD Cal.2004) _ F.Supp.2d _, 2004 WL1532433.) Upon certification of such voting machine technology and systems, county boards ofsupervisors are authorized to adopt voting systems for use at all elections held within theirjurisdictions. (Elections Code section 19210.)There is no precedent for an action to impose standards for the counting or recounting ofballots upon an administrative official charged with conducting such elections and recounts.Mandamus lies to correct abuse of discretion, not to control the quasi-legislative acts ofgovernmental bodies. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443 [“theElections Code does not require the deputization of county employees as voting registrars, evenif such deputization would substantially further the statutory goal of maximum registration.”]; seealso, Benavidez v. Shelley (C.D.Cal.2004) _ F.Supp.2d _, 2004 WL 1532433.) Such action, ifappropriate at all, lies under the administrative mandamus provisions of Code of Civil Proceduresection 1094.5, and because Elections Code section 13314 does not encompass challenges tothe quasi-legislative acts of administrative agencies concerning the administration of electionssystems. (See, e.g., Weber v. Shelley (9 th Cir. 2003) 347 F.3d 1101, 1107.)B. A Court Is Not the Proper Venue for Legislative ActionThe Petitioners/Plaintiffs also lack standing to obtain a mandatory injunction to compelthe Respondents/Defendants to adopt specified procedures for the handling of recounts, asthey have no present clear and beneficial right to such relief. Stated another way, the claim is“unripe.”Standing and ripeness issues resound also with respect to their mandamus claim. Theaction fails to meet the requirements for mandamus which are (1) a clear, present and usuallyministerial duty on the part of the respondent and (2) a clear, present and beneficial right in theDemurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 13

1234567891011petitioner to performance of that duty. (Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th791, 796.) However, “[i]t is well settled that although a court may issue a writ of mandaterequiring legislative or executive action to conform to the law, it may not substitute its discretionfor that of legislative or executive bodies in matters committed to the discretion of thosebranches.” (Id.) Stated somewhat differently, the “writ of mandate ‘is not a writ of right to befreely issued whenever a court disagrees with the policy of the administrative action.’”(California State Auto. Assn. Inter-Ins. Bureau v. Garamendi (1992) 6 Cal.App.4th 1409, 1423.)The same can be said when the court decree conflicts with the ... legislative policy.” (Barnes v.Wong (1999) 33 Cal.App.4th 390, 396.)CONCLUSIONFor all the foregoing reasons, the demurrer should be sustained without leave to amend.1213141516171819202122232425262728Dated: February 4, 2005Respectfully Submitted,BELL, McANDREWS & HILTACHK, LLPRICHARD E. WINNIECOUNTY COUNSEL OF THE COUNTY OFALAMEDABy: (SGD.) Nancy FentonNancy Fenton, Deputy County CounselAttorneys for Respondents/DefendantsCOUNTY OF ALAMEDA and BRADLEY J.CLARK, Registrar of VotersDemurrer to Verified Petition for Writ of Mandate, Complaint, etc., #RG04-192053 Page 14