The First District Court of Appeal recently ordered published its decision in Denny v. Arntz in which it ruled that statutory challenges to the sufficiency of ballot materials cannot be made post-election. The ruling helpfully construes Elections Code section 16100 to exclude post-election challenges based on alleged flaws in the ballot question and voter information pamphlet.
Here, Denny filed a post-election challenge to Proposition A, which proposed a 30-year bond issuance of $425,000,000 to protect San Francisco’s waterfront, including the Embarcadero and associated seawall. Voters approved the bond issuance by a resounding 82.5 percent. Denny sought to overturn the results, claiming a myriad of faults with the ballot materials including, among others, that the voter’s digest and ballot question were not impartial and the ballot question did not conform to the format requirements of the Elections Code. Denny alleged these faults amounted to “offense[s] against the elective franchise” within the meaning of Elections Code section 16100, subdivision (c).
The Court affirmed the trial court ruling sustaining San Francisco’s demurrer without leave to amend. Statutory challenges to the sufficiency of ballot materials must be pursued pre-election and filed during the 10-day public inspection window for the material at issue. By contrast, section 16100 permits post-election challenges in limited situations, such as misconduct of a precinct board, illegal votes cast or bribery by a candidate, and only when such actions are demonstrated to have affected the election’s outcome. Denny’s claims, which all rested on the ballot materials and voter guide, fell outside section 16100’s scope.
While dispensing with Denny’s statutorily based challenge, the Court recognized that Owens v. County of Los Angeles permits post-election challenges if ballot materials are so misleading or inaccurate as to implicate voters’ due process rights. But the standard of proof in such a claim is much higher, and Denny alleged no such due process claim.
For fellow election law practitioners, Denny is helpful in delimiting post-election challenges permitted by section 16100, subdivision (c), and reinforcing that statutory claims regarding ballot materials and voter guides must be made pre-election or not at all.