A San Joaquin County Superior Court judge on Aug. 26 rejected an emergency petition seeking to remove Stockton City Council District 5 candidate Desiree Lynch from the November ballot, finding that the petition failed to establish an error in the ballot process that would allow the court to intervene.
The petition was filed on Aug. 18 by Shakeel Samuel Carpenter, also known as Sam Carpenter, a registered voter and former write-in candidate for the District 5 seat. Carpenter asked the court to issue a writ of mandate directing Stockton and San Joaquin County election officials to prevent Lynch's name from appearing on the Nov. 3 general election ballot.
Stockton City Clerk Katherine Roland and San Joaquin County Registrar of Voters Olivia Hale
were listed as respondents to the petition. Lynch, who was not present in court, was listed as a real party in interest.
Carpenter's petition cited California Elections Code Section 13314, which allows an elector to seek a court order when an error or omission has occurred or is about to occur in the printing of a ballot, county voter information guide, state voter information guide or other official matter.
Carpenter's attorney, Marjorie "Andi" Burrise, argued during the ex parte hearing that new information called Lynch's eligibility for the District 5 seat into question. Burrise told the court that Lynch had signed a grant deed listing a Lodi address before the June 2 primary election.
"These are declarations made by her, signed by her, that indicate that there was in fact an error prior to the election, there was a fraud on this community prior to the election," Burrise said. "That should have been corrected."
Burrise argued that the judge should consider the grant deed, along with an Aug. 24 letter Lynch submitted to the Stockton city clerk's office seeking to withdraw from the race. Lynch submitted the letter five days after her arrest on a local warrant alleging five felony election-related offenses.
Lynch was arrested on Aug. 19 following a six-week public corruption investigation by the San Joaquin County District Attorney's Office Bureau of Investigations into her residency and candidacy. The district attorney's office charged her with three counts of perjury, one count of voter registration violation and one count of filing a false declaration of candidacy. Her arraignment is scheduled for Sept. 2.
The district attorney's office said investigators determined Lynch lived in Lodi and north Stockton, in District 1, rather than District 5. Investigators allege she used two Stockton addresses to fabricate her residency: an address for Harry's Cocktail Lounge at 407 E. Charter Way, also known as East Martin Luther King Jr. Way, and an address at Doyle Garden Apartments at 625 E. Oak St.
Carpenter's petition also noted Lynch's Aug. 13 withdrawal from the race and her reversal of that decision on Aug. 18. Despite Lynch's request to be removed from the ballot, Stockton Interim City Attorney Donald Larkin said her name would remain on the November ballot because, under the Elections Code, candidates cannot withdraw from the general election after the primary election.
"This court's consideration is not simply a matter of whether or not there was an error made by the county," Burrise said. "There will be an error in having her on the ballot because the community will be defrauded essentially into thinking they have two viable candidates to choose from."
San Joaquin County Superior Court Judge Robert Waters disagreed, saying a permit for a property in another area does not establish that the property is a person's residence. He also emphasized that Lynch qualified for the primary election through the proper channels and that the election had already been held.
"If you believe, or the petitioner believes, that she was not qualified, that could have been dealt with when she initially sought election," Waters told Burrise. "I do not have a DeLorean. I cannot get to 88 miles an hour, and we cannot go back in the future. We're in the present, and where we are in the present is there was an authorized election, the people had spoken and nobody got 50%."
In Stockton's primary election, a candidate must receive a majority of the votes, or more than 50%, to win outright. If no candidate receives a majority, the top two vote-getters advance to a runoff in the general election.
Lynch finished second to incumbent District 5 Councilmember Brando Villapudua in the primary election, with 1,054 votes, or 30.59%, compared with Villapudua’s 1,173 votes, or 34.04%.
Waters said the candidates were heading for a runoff and that any facts that emerge as the criminal case proceeds are a separate matter that will "shake out down the road." He also emphasized that Lynch is innocent until proven guilty and said he was unwilling to disenfranchise voters.
"You're asking me to throw out the votes of citizens in this county, and I don't think that's something that I have the authority to do," Waters said.
Burrise pushed back, pointing to Lynch's request to the city clerk's office to remove her name from the ballot and arguing that neither the city nor county had the authority to do so. She said only the court could remove Lynch's name, which was why she and Carpenter sought an emergency hearing on the writ of mandate.
Waters responded that his authority was limited by Elections Code Section 13314 and that he was not convinced an error had occurred or was about to occur in the printing of the ballots.
Jonathan King, chief deputy county counsel for San Joaquin County, told the judge he agreed with Waters’ interpretation of the Elections Code and argued that the county had done nothing wrong.
Tom Keeling, representing Stockton and the city clerk, also raised concerns about proceeding without Lynch, whom he described as the actual party in interest rather than the city or county.
Waters also expressed concern that Lynch was not present at the hearing. He said he wanted to hear directly from Lynch that she did not intend to remain in the race or continue residing in District 5, adding that he might have been more inclined to grant the emergency petition if she had done so.
Burrise said she understood the concerns about Lynch not being present during the proceedings. She said Lynch was served with the court documents electronically and that copies were left at her doorstep on the evening of Aug. 25. She also said her client was informed by Lynch herself that she had no intention of attending the proceedings.
Waters also repeatedly expressed concern about overturning the voters’ decision after Lynch advanced from the primary.
"I don't want to stick my nose in the fair and free elections that we have in this country, especially with a lot of rhetoric coming down from people in the federal government and some factions of the state government regarding our election process," Waters said. "I've lived in this county my entire life, and I know that in San Joaquin County, we have fair and free elections."
Ultimately, Waters denied Carpenter's request, finding that Carpenter's petition and supporting documents did not establish that an error had occurred or was about to occur in the printing of the ballot. He said the primary election results had been certified in San Joaquin County and that Lynch received enough votes to qualify for the runoff. Waters also emphasized that Lynch is presumed innocent until proven guilty and that there has been no finding on the underlying allegations against her.
"In order to protect the rights of the voters of the citizens of San Joaquin County, in order to protect the rights of the individual who qualified for the runoff, and to make sure that our election rules are followed so we have integrity in the fair and free elections in the county of San Joaquin, the request is denied," Waters said while informing the parties of his decision.
Following Waters' ruling, ballots for the Nov. 3 general election are scheduled to begin printing on Aug. 26, and the Stockton City Council District 5 race will include Lynch's and Villapudua's names.
Record reporter Hannah Workman covers news in Stockton and San Joaquin County. She can be reached at hworkman@recordnet.com or on Twitter @byhannahworkman. Support local news, subscribe to The Stockton Record at https://www.recordnet.com/subscribenow.
This article originally appeared on The Record: San Joaquin County judge rejects bid to remove Lynch's name from ballot
