Vote Centers Are Open In Santa Ana's Recall Election. But Is The Election Valid?

Vote centers are open in the recall election of Santa Ana City Councilmember Jessie Lopez, but it's unclear whether the election is legal.

That's because the Orange County registrar of voters recently concluded the city was using the wrong district boundaries and the wrong population data to calculate how many signatures were needed to trigger the recall and who should get to vote.

As a result, nearly 1,200 voters who, according to O.C. Registrar Bob Page's recent calculations, should be able to vote in the Nov. 14 election did not get ballots.

Using the correct district boundaries, Page also calculated that the initial recall petition actually fell short of the number required to hold an election by 230 signatures. Last week, Page rescinded his initial verification that recall petitioners had met the signature threshold.

On Friday, Guadalupe Ocampo, one of Lopez's constituents, filed a legal challenge asking a judge to immediately stop the election. Orange County Superior Court Judge Craig Griffin was set to hear the case Tuesday morning. (Read the complaint.)

Here's the story behind the recall snafu and what election experts say could happen now.

Why was Lopez targeted for recall in the first place?

Recall backers, primarily the Santa Ana Police Officers Association and several real estate groups, want Lopez off the council because of her support for policies they say have pushed up housing costs, and reduced support for police.

Santa Ana Councilmember Jessie Lopez was elected in 2020 to represent the city district called Ward 3.

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LAist reached out to the police officers association and to Tim Rush, a real estate executive who chairs the recall campaign, but has not gotten a response.

In a February op-ed in the Orange County Register, Rush cited Lopez and fellow councilmember Thai Viet Phan's "palpable hostility to law enforcement," including voting to reduce the police force budget and voting to end a ban on street cruising, as reasons for the recall.

Rush also cited their votes to enact what he called "the most radical city rent control measure in California." (The campaign failed to turn in enough signatures to trigger a recall election for Phan.)

Santa Ana is the only city in Orange County where elected officials have passed a rent control ordinance. Its policy restricts rent increases to 2.54% through the end of August 2024. A handful of cities in L.A. County cap rent increases under 3%. For example, West Hollywood’s cap is 2.5% through the end of August 2024 and rent controlled housing in the city of L.A. is currently under a rent freeze that prohibits rent increases in most cases.

Lopez's supporters say her actions on the city council have led to more police oversight and helped low-income residents fight unjust evictions and steep rent hikes.

"It really is about losing the gains that the community has made if this recall were to be successful," said Hairo Cortes, executive director of the Latinx youth advocacy group Chispa.

Experts say California election law is confusing

LAist spoke with six outside election experts to get their opinions on the Santa Ana recall snafu, two of them county registrars of voters.

They told us:

• Page, the O.C. registrar of voters, is right — there is a fundamental error in the Lopez recall election. The wrong district boundaries were used to calculate the number of signatures needed to trigger the recall and to determine who gets to vote.  
• Nevertheless, California election law isn't exactly straightforward on the subject. 

"I can certainly understand how mistakes are made because the law is not at all clear," said Douglas Johnson, president of National Demographics Corporation, a company that assists local governments with redistricting.

The experts consulted by LAist agreed that California law and court precedent have established that elected officers are to represent the population that initially voted them into office — and that the same population should get to decide whether to remove their representative from office.

That means, in the case of Santa Ana, that the district as it existed when Lopez was elected in 2020 should get to vote on whether to recall her. But recall proponents would need a thorough understanding of California election law to catch this nuance, experts said.

"The fact that the answer is clear doesn't mean that the question comes up often enough for it to be on the top of everybody's mind," said Fredric Woocher, a Los Angeles-based election lawyer.

First off, redistricting only happens every 10 years after the Census.

Second, questions about how many signatures are needed to trigger a recall and who gets to vote only matter if the official subject to recall was elected to represent a specific geographic district rather than at-large. A little less than half of all cities in California vote by district, according to Johnson.

And third, the window for recalling an elected official after redistricting is pretty small. After the 2020 Census, most jurisdictions in California didn't finalize their new district maps until late 2021 or early-to-mid 2022. Santa Ana officially adopted its new districts, which it calls wards, in April 2022. That doesn't leave much time to mount a recall campaign and bring it to voters before elected officials' terms are up.

According to the website Ballotpedia, just two recalls made it to the ballot in California in 2023: the Lopez recall and the recall of former Councilmember Catherine Alvarez in Downey. Alvarez was ousted by voters in February and ballots for a special election to choose her replacement are due Tuesday.

Downey city clerk Maria Alicia Duarte told LAist there was no question that the recall would be up to voters in the district that originally elected Duarte in 2020. The city has made clear that the new boundaries for the district formerly represented by Alvarez won't go into effect until the November 2024 general election.

What state election law says, and doesn't say

When Santa Ana adopted its new district boundaries, the city council passed an ordinance stating the new boundaries would go into effect starting with the November 2022 general election "and subsequent elections thereafter."

But that seems to contradict state law. California election code states that new city council districts will take effect at the first election following adoption of the new boundaries, "excluding a special election to fill a vacancy or a recall election."

Johnson noted that the "excluding" subclause is key but easily ignored.

"It's only a couple of throwaway words, but they have huge impact," he said.

The California Secretary of State's 2023 recall procedures guide says nothing specifically about how to handle a recall election after redistricting.

Johnson and Woocher said court precedent is much more decisive on the matter. Woocher noted a 2021 opinion from the California attorney general regarding a special election held after a San Luis Obispo County supervisor died during his term in office. The state attorney general determined that the district boundaries in place when the supervisor was elected, in 2020, should apply to the special election to fill his seat.

In a letter to Santa Ana's City Clerk advising her of the mistaken boundaries in Lopez's recall election, Page cited a different attorney general opinion from 2014. That opinion suggested that a city council member was unlawfully appointed to serve out the term of his predecessor who resigned because the new member didn't reside within the city council district boundaries that existed when the incumbent was elected.

Whose fault is the mistake in Santa Ana?

Page told LAist he recognized there was a problem with the Lopez recall when a fellow registrar, Lupe Villa in the Central Valley's Kings County, emailed his counterparts on Oct. 25 to ask for advice on a school board recall. There, a group is seeking to recall all five board members of the Reef-Sunset Unified School District, three of whom were elected in 2020 before redistricting and two of whom were elected in 2022 after redistricting.

The question caused Page to re-examine how his office reviewed the recall petition for Lopez and is administering the recall election, Page told LAst in an email. He realized the city had incorrectly used post-redistricting population numbers to calculate the number of voter signatures needed to trigger the recall — 26,370 voters instead of the correct number, 27,158.

Using the correct, pre-redistricting boundaries and population, Page found that signature gatherers actually fell short of the amount needed to trigger an election — by 230 signatures. He contacted Hall, the city clerk, on Oct. 26 to tell her and ask how the city wanted to proceed.

Hall did not respond to LAist’s request for comment.

The Orange County Registrar of Voters administers elections at the request of cities. But city clerks are officially in charge of municipal elections. "The city tells the county what they want to have done," said Woocher, the election lawyer.

So who's fault is the Santa Ana mistake? Woocher said "everybody has the responsibility to provide correct information."

Johnson added that this responsibility starts with the recall proponents. "California election law is very clear that it is the people who are circulating the petitions' responsibility to get the rules right," he said. "Even if someone tells them the wrong information, that's not an excuse."

What's less clear, Johnson reiterated, is what election law says about how to handle snafus like the one in Santa Ana.

"Running an elections office is so complicated," he said. "In defense of the county registrar and the Santa Ana folks, the only way anyone learns this stuff is by running into it, unfortunately."

What happens with the election?

At a special meeting last week, the Santa Ana City Council deadlocked 3-3 on whether to take action to cancel the election or let it proceed. (Lopez recused herself from the vote.) That means it is continuing as planned, according to city officials and Page, the registrar. The last day of voting is scheduled for Nov. 14.

For voters, this means unless the recall ends up in court and a judge intervenes, votes will be counted later this month.

In a Facebook post following the vote, Santa Ana Councilmember David Peñaloza said he was rescinding his endorsement of the recall campaign given the unresolved legal questions. He said a judge should decide whether the election can lawfully go forward.

"The integrity of our elections is way too important and sacred for politicians to be the ones who decide whether an election currently taking place gets canceled or not, especially after many Santa Ana residents have already cast their votes," he wrote.

Lopez advised supporters, in a recent fundraising email, that she plans on "taking this corrupt recall to court." LAist reached out to Lopez via phone and email, but did not receive a response.

Woocher said Lopez isn't the only one who could challenge the election — the registrar has identified more than 1,000 voters who lived in Lopez's district when she was elected and therefore should be able to vote in her recall, but weren't mailed ballots.

"If you are one of the people who should be able to vote, you would certainly have standing to complain about it," he said.

Ocampo, the voter who is asking the court to stop the election, had another request in her court filing. If the judge won't stop the election, she asked that he allow voters in Lopez's district as it was when she was elected to cast ballots.