Resource: Fugazi v. Padilla

By: Healthy Elections Project

November 5, 2020

Healthy Elections Project

In the San Joaquin County Presidential Primary Election, the first and second place candidates continue to the general election. In the March 3, 2020 election, the third-place finisher and named plaintiff, Ms. Fugazi, requested a recount and also to prevent that recount from being completed without inclusion of cured vote-by-mail ballots. Other plaintiffs (13), who voted by mail and whose ballots were determined to have deficiencies (some deficiencies were attributable to disabilities, like a recent stroke preventing a voter's signature to be an exact match), alleged the county Registrar (1) failed to notify them (properly or at all) of their right to cure and have their vote-by-mail ballots counted (per CA Elections Code, and as extended by executive order) and (2) prematurely certified the election results by certifying the results prior to the extended deadline allowed by CA Governor's executive order N-34-20 (due to COVID-19 pandemic all deadlines associate with completing, auditing and reporting on the official canvass were extended by 21 days). An attorney with the Secretary of State later declared that the extension is permissive / at the Registrar's sole discretion. The Plaintiffs alleged violations of the first (right to vote) and fourteenth (equal protection) amendments, Voting Rights Act (section 2, as some of the impacted voters, constituted race and language minorities, and disabled), and Americans with Disabilities Act (voting provisions in title II and its implementing regulation). The suit was a putative class action. The petition looked for remediation and also forward to the November 2020 election seeking reasonable, disability accessible, and constitutional sufficient procedures. The second-place finisher, Ms. Miller, petitioned, and was permitted to intervene. The Defendant argued that notices to cure deficient vote-by-mail ballots were timely provided by mail or via phone call and were sufficient; the extension of the applicable deadlines was permissive not required and so earlier certification was not premature; and that submission of cure documents were untimely. The list of 13 Plaintiffs was narrowed to 8 based on timing, and among the 8 only 1 submitted a declaration in support of the TRO. The court found the Plaintiffs didn't satisfy their burden under the first prong of the Winters test, including by raising serious questions, so the TRO was denied on May 22, 2020. On July 21, 2020, the defendants filed a motion to dismiss with prejudice arguing on the first count that the Plaintiffs lack standing, claims for which they have standing are moot and all claims fail to state a claim on which relief can be granted.