The official conclusion of this year’s election that resulted in the reelection of five countywide incumbents was not in compliance with the county’s charter, two lawsuits filed last week contend.
According to a lawsuit filed by Robert Conaway on his own behalf and another Conaway filed on behalf of sheriff candidate Cliff Harris, San Bernardino County’s charter, as adjusted ten years ago in 2012, requires that the five countywide positions elected in the years corresponding with California’s gubernatorial elections – sheriff, district attorney, treasure/tax collector/auditor controller, assessor/county clerk and county superintendent of schools – are to be held in the November general election. According to Conaway’s and Harris’s suits, the county’s practice of declaring a candidate for any of those five offices to be the winner if he or she collects fifty percent of the vote plus at least one in the June primary election and then certifying that candidate’s election is inconsistent with the charter change that was made in 2012.
According to the language in the charter, “All county offices in this county, now or hereafter existing, other than the office of supervisor, that would under the general laws of the state be filled by election, if no county charter had been adopted, are hereby declared to be and are made county elective officers, and all such elective county officers shall be elected at the general election at which the governor is elected, and shall take office at twelve o’clock meridian on the first Monday after the first day of January next succeeding their election and shall hold office until their successors are elected or appointed and qualified, and all such elected county officers shall be nominated and elected in the manner provided by general laws for the nomination and election of such officers.”
In the June 7 election, Harris ran as a candidate for sheriff listed on the ballot. As of yesterday, Thursday June 16 at 4 p.m., of 219,058 total votes cast for sheriff, Harris had received 56,194 or 25.65 percent, including both mail-in ballots and ones entered at the polls located within the various voting precincts around the county, while Shannon Dicus, the appointed incumbent sheriff, had received 162,864 total votes.
In the June 7 election, Jason Anderson ran unopposed for district attorney, receiving 189,398 of 189,432 total votes cast, including those contained in mail-in ballots and those made at the various located within the various voting precincts around the county. Anderson thus claimed 99.98 percent of the vote. Conaway, who ran as a write-in candidate, through yesterday had received 34 write-in votes or 0.02 percent of the vote.
In the virtually identically worded lawsuits he filed on his own and Harris’s behalf, Conaway cited the phraseology “All county offices in this county, now or hereinafter existing, other than the office of supervisor, …shall be elected at the general election in which the governor is elected,” in asserting that the court should find that “Any vote tally from the June 7, 2022 primary for countywide offices is of no legal effect, is unqualified to be certified and no declaration for the winner of the [district attorney/sheriff] race is a lawful exercise of county power.”
Furthermore, Conaway maintains the court is obliged to make a finding that no certifications of Anderson as the winner in the district attorney’s race and Dicus in the sheriff’s race “shall be submitted to the secretary of state.”
Accordingly, according to Conaway in the suits filed on Harris’s behalf and his own behalf, the courts should declare that “The county defendants will need to do the necessary work and appropriate the necessary funding to conduct a November 2022 election for the county [district attorney/sheriff] and any other similarly situated countywide race.”
Conaway provided exhibits to the lawsuits, including the county charter.
Harris today told the Sentinel that he expects that “We are going to have to run again in November. I suspect the judge will follow the law.”
Harris said he hoped that what would be achieved by his and Conaway’s lawsuits was more than simply forcing the county to abide by the technical language of the charter, in that he believed the June polling involved irregularities.
“I am not sure there wasn’t a manipulation of the software during this election in my race for sheriff,” Harris said. “I can’t prove it, but if you look at the numbers, the way the votes came in on election night, my numbers did not change from the first dump at 8:30 [p.m. June 7] until the morning. That is pretty remarkable, pretty suspicious. When the later mail-in votes were counted, then my numbers started to change. I haven’t really looked at it in depth or studied it. I want to pull all of those votes and I want to look at the elections in other counties to see if there were similar patterns. How did my percentage stay the same all night?”
Conaway told the Sentinel that he anticipated that the case will go to Judge Gilbert Ochoa, who routinely handles election disputes in the county. The question he said he had sought to put before Judge Ochoa or whoever is to hear the matter is “Does the county have to follow its own charter or not?”
The Sentinel noted that the case Conaway laid out pertains to not only the district attorney and sheriff but the county superintendent of schools; the county treasurer who serves as tax collector and the county assessor, who is also the county clerk and county recorder. Conaway was asked if the suits he had filed would, if granted with regard to the district attorney and sheriff, apply to the other three countywide offices. He said that the issue was covered under the “draft order” he was requesting from the court and “The order as drafted would affect all of them.” Conaway said that if the judge ruled in his and Harris’s favor on the district attorney’s office and sheriff’s races but did not include the other candidates for countywide office, “Then it would be up to those others to make a specific case. There could be a due process argument for someone who ran and lost or who didn’t pull papers because they were too late. The charter applies to them as much as it applies to the candidates for district attorney or sheriff.”
It is important that those who hold office have been established in those positions through a procedure that has legal integrity, Conaway said.
“When you are dealing with federal grants or even state grants, the votes for the appropriation of that money is made by the board of supervisors with direction for it to be utilized and administered by the duly elected heads of the various departments,” Conaway said. “This would apply to grants for drug interdiction in the sheriff’s office or prosecutions carried out by the gang unit in the DA’s office. If state or federal grants went to someone who is not elected legally, there is a subtle question as to whether the state government or the federal government would then have grounds to rescind those grants and ask for the county to pay back that money, in some cases millions of dollars. The key question is: ‘Now that this has been unequivocally pointed out to them and they are on notice, are they going to follow the law?’ If this was not a lawful election, it undermines everything. Everyone that they say was elected in the primary is knocked out of office and the whole election process is compromised because this should go to an election in November.”
Conaway said that “They will make an argument that if even if the official election was illegal because it should have been held in November, it doesn’t matter because it is the certification that counts, and if the victors were certified, then that is all that is needed. That is why these lawsuits are contesting the validity of the certification.”
Conaway pointed out that those whose office and duties are laid and enumerated in the charter have a duty to abide by the charter, including seeing to it that they are elected to office during the gubernatorial general elections. That none of the county’s elected officials have adhered to the charter since the gubernatorial general election rule went into effect in 2013 and was applicable in the 2014, 2018 and now the 2022 elections is a demonstration, Conaway said, of the philosophy among the county’s elected officials that they would not apply rules that negatively impact themselves personally, which he said is a sad commentary on the quality of the county’s current elected leadership. “What they are saying is, ‘I don’t want to create any scrutiny if it messes with me, so I’m not going to say anything,’” Conaway said. “I think these two lawsuits creates the perfect storm for the county to engage in that scrutiny.”
The Sentinel sought the reaction of the office of San Bernardino County Counsel to the lawsuits. The receptionist answering the office’s direct phone line this morning said that both lawsuits filed on behalf of Conaway and Harris had been received by the office but that they had not been assigned to any deputy county counselors.
-Mark Gutglueck