It may well be that the Court of Appeal got this one right. But if I were the appellant, even wholly beyond losing on the merits, I would be bummed at the somewhat cursory way the opinion is written.
It's a real appeal, with real arguments. The Elections Code says that interested parties can have observers when elections officials count mail-in ballots. For good reason. We're a democracy. We like openness. We want to dispel any potential impression that there's hanky-panky going to when ballots are counted. It's not like irregularities in counting ballots are absurdly inconceivable, after all. Granted, the United States is not Venezuela. But perception, as well as reality, is important.
Appellant here, EIPC, observed the ballot counting in Ventura in the 2020 and 2021 elections. Which they were entitled to do under the Elections Code. The appeal is essentially about how close the observers were entitled to be to the actual counting. Elections officials put them in a particular spot, and they had to stay there. From that spot, the observers could see that the elections folks were, in fact, comparing signatures on the ballots to the recorded signatures of those people. But they couldn't see the actual signatures; they were too far away. So while the observers could see the overall "procedure" the elections officials were using -- i.e., that, yes, they were comparing signatures -- the observers couldn't see if those officials were actually doing their job correctly, or how exactly "close" the signatures had to be before they were verified (or, conversely, before they were bounced as not matching each other).
The statute itself doesn't directly answer this question. It says 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, including all of the following: [¶] (1) Verifying signatures on the vote by mail ballot return envelopes by comparing them to voter registration information." You could interpret that in one of two ways. You could perhaps say, like the trial court, that this just means that the observers need to be close enough to make sure that some comparison is taking place. Or you could perhaps say, like EIPC says, that to be able to effectively "challenge" that process, you've got to be able to at least see the two signatures -- and can't tell if the "procedure" used by the elections staff is valid or not if you can't see what's being compared.
There are decent arguments on both sides. Rational people could likely come to differing conclusions on that point. The answer is not obvious, at least to me.
But Justice Gilbert seems to think otherwise -- or at least that's the keen impression one receives from reading his seven-page opinion here. I know it's Justice Gilbert, so of course, one is not surprised that it's a concise and somewhat breezy disposition. (Especially when, as here, the opinion is initially unpublished.)
Still. It's an important issue. A serious dispute, in my view. One might have wanted to address the issues in a bit more exhaustive detail. If only because (1) election integrity is a fairly fundamental component of a democracy, and (2) there are, in fact, real reasons why one might want to enable observers to actually be able to do their jobs rather than just participate in a superficial overview of the process.
I'm not necessarily saying that Section 15104 of the Elections Code allows observers to get in close and actually see the signatures. Maybe it does, maybe it doesn't. Reasonable minds may differ on this one.
But it's a real issue. So even as an outside observer interested in the process, there might have been at least a little more that the Court of Appeal could have done here.
IMHO.
