Judge James C. Chalfant, Case 22STCP03795 2022-12-06 Tentative Ruling

Committee to Support the Recall of District Attorney George Gascon v. Dean Logan and Office of the Los Angeles County Registrar-Recorder/County Clerk, 22STCP03795

Tentative decision on application for preliminary injunction: granted in part

Petitioner Committee to Support the Recall of District Attorney George Gascón (“Committee”) applies for a preliminary injunction to compel Respondents Dean Logan (“Logan”) and Office of the Los Angeles County Registrar-Recorder/County Clerk (collectively, “Registrar”) to (1) provide certain records for the signatures on the Petition to Recall District Attorney George Gascón (“Gascón”); and (2) reduce restrictions on the Committee’s access to the Registrar’s office for the purpose of reviewing the Recall Petition under Elections Code (“Elections Code”) section 11301 and Government Code (“Govt. Code”) section 6253.5.

The court has read and considered the moving papers, opposition,^{^[1]}and reply, and renders the following tentative decision.

Petitioner Committee filed this proceeding on October 18, 2022. The operative pleading is the First Amended Petition (“FAP”), filed on November 16, 2022 and alleging (1) traditional mandamus and (2) declaratory judgment, and seeking injunctive relief. The verified FAP alleges in pertinent part as follows.

After his election on December 8, 2020, Gascón took office as the Los Angeles County (“County”) District Attorney. Gascón has since introduced controversial prosecutorial policies that frustrated some residents. On January 27, 2022, the Registrar approved the Committee’s request to circulate a petition to recall Gascón (“Recall Petition” or “Petition”). The Committee collected 715,833 signatures, 148,976 more than the 566,857 signatures required to trigger a recall election. The Committee submitted the Recall Petition on July 6, 2022. On July 9, 2022, the Registrar issued a press release that verified the total number of raw signatures.

After the Registrar reviewed a 5% sample, it launched a review of all Recall Petition signatures. On August 15, 2022, the Registrar announced that it had found 195,783 signatures invalid. This reduced the number of signatures to 46,807 fewer than needed to qualify the Recall Petition for a recall election. The reasons cited for invalid signatures included: (1) 88,464 signatures of voters who were not registered; (2) 43,593 duplicate signatures; (3) 32,187 signatures from voters with a different address; (4) 9,490 mismatched signatures; (5) 7,344 “cancelled” signatures; (6) 5,374 signatures from voters with an out-of-county address; and (7) 9,331 signatures invalid for one of ten other reasons.

On August 18, 2022, the Committee informed the Registrar that it intended to exercise its statutory right, under Elect. Code section 11301 and Govt. Code section 6253.5, to examine the Recall Petition to assess “which signatures were disqualified and the reasons therefor.” On August 19, the Registrar replied that the Committee could review the Recall Petition and the voter record data or information that led to the disqualification of each signature. Such review would occur at the Registrar’s office during business hours.

On August 29, 2022, the Registrar restricted the review process whereby (1) the Committee could examine Petition signatures at the Registrar’s office only on Tuesday through Thursday, from 9 a.m. to 4 p.m.; (2) only 14 Committee representatives would be permitted per day; (3) Committee representatives would be limited to use of seven computer workstations; and (4) each computer workstation would be operated by one staff person from the Registrar’s office.

The Committee made a good faith effort to comply with these restrictions beginning on September 6, 2022. Progress has been slow, and the Registrar has not provided access to all voter signatures on file, prior addresses of registered voters, and other crucial pieces of information needed to determine whether a signature found invalid was actually valid. In other instances, the Registrar has provided this information in printed form, which slows down the Committee’s review. The Registrar has also refused to answer questions, ignoring them or claiming that the answers are beyond the scope of the examination process. It has also failed to provide information on Runbeck’s EMS-DIMS Election Management System (“DIMS”) for voter registration, such as the abbreviations the system uses.

The difficulties the Committee has faced make it clear that timely review of the Registrar’s findings is impossible with current parameters. At the current rate, the Committee would need 18 months to review the disqualified signatures which in effect denies the Committee of its right to review under Govt. Code section 6253.5.

The Committee seeks a writ of mandate compelling timely production of (1) all signatures on file for voters whose signature was rejected as a mismatched signature (“Request No. 1”); (2) for all persons whose signature was rejected because the voter’s residence address on the Recall Petition did not match the voter’s registered address, an electronic list of the voters’ prior addresses, dates of all changes, the reason, and notice provided for involuntary changes (“Request No. 2”); (3) a list of voters whose signatures were valid, invalid as a duplicate, invalid because registration was cancelled due to death, and invalid for “fatal pending” (“Request No. 3”); (4) all training materials or user manuals for DIMS to interpret the data contained in the system (“Request No. 4”); (5) all comments, notes, or notations made in the voter files of rejected signatures (“Request No. 5”); (6) all voter files that may exist for those voters with rejected signatures, cancelled or not (“Request No. 6”); (7) the original affidavits of registration including re-registrations for voters with rejected signatures (“Request No. 7”); (8) an electronic list of all voters whose Petition signatures were rejected during the random sample review (“Request No. 8”); and (9) all data and information the Registrar relied on in rejecting a Petition signature (“Request No. 9”).

The Committee also seeks a writ of mandate compelling the Registrar to agree that (1) Committee representatives may examine the Recall Petition five days per week; (2) up to 25 representatives may examine the Recall Petition at one time; (3) Committee representatives can use up to 25 computer workstations; and (4) Committee representatives may use personal electronic devices during the review process.

The Committee requests (1) a temporary restraining order (“TRO”), preliminary injunction, and/or permanent injunction mandating that the Registrar provide the requested documents and requested access, (2) a judicial declaration that Respondents acted unlawfully when they chose not to do so, and (3) attorney’s fees and costs.

On October 25, 2022, the court heard the Committee’s ex parte application for an order to show cause re: preliminary injunction (“OSC”) compelling the Registrar to (1) comply with Request Nos. 1-4 and (2) provide the access requested in the FAP. The court granted the ex parte application and issued the OSC.

On the same day, the Committee served Respondents with the Petition, Summons, and ex parte application.

On October 25, 2022, the court granted the ex parte application of Chase Harrington, Esq. (“Harrington”) to appear as counsel pro hac vice for the Committee.

On November 17, 2022, the court heard the Committee’s ex parte application for leave to file a supplemental brief in support of the OSC. The court denied the application on November 17, 2022.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort (1941) 17 Cal.2d 736, 741. McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1160.^{^[2]} It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al. (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).^{^[3]} Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1565. The concept of "inadequacy of the legal remedy" or "inadequacy of damage dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 920.

On January 27, 2022, the Registrar approved the form and wording of the Committee’s request to circulate a Recall Petition for Gascón. Thompson Decl., ¶3, Ex. 1. The Committee collected 715,833 signatures, 148,976 more than the 566,857 signatures required to trigger a recall election. Thompson Decl., ¶4. The Committee submitted the signatures to the Registrar on July 6, 2022. Thompson Decl., ¶4.

On July 9, 2022, the Registrar issued a press release confirming that it had received 715,833 raw signatures. Thompson Decl., ¶4, Ex. 2. The press release explained that the Registrar would use a 5% sample of signatures to decide if it needed to review all signatures. Thompson Decl., ¶4, Ex. 2. Registrar Division Manager Emmanuel Anyiwo (“Anyiwo”) reported that the Register had to hire close to 400 workers – permanent, recurrent, and temporary employees from staffing agencies -- verify the signatures on the Recall Petition. Thompson Decl., ¶4.

On August 15, 2022, the Registrar announced that it had found 195,783 signatures invalid. Thompson Decl., ¶5, Ex. 3. This reduced the number of valid signatures to 520,050, which was 46,807 fewer than needed to qualify the Recall Petition for a recall election. Thompson Decl., ¶5, Ex. 3. The reasons cited for the invalid signatures included: (1) 88,464 signatures of persons not registered to vote; (2) 43,593 duplicate signatures; (3) 32,187 signatures from persons with a different address; (4) 9,490 mismatched signatures; (5) 7,344 “cancelled” signatures; (6) 5,374 signatures from those with an out-of-county address; and (7) 9,331 signatures invalid for one of ten “other” reasons. Thompson Decl., ¶5, Ex. 3. “Other” includes the possibility that the circulator entered the signature, the signator was underage at the time, “fatal pending,” the listed address was for a P.O Box, a printed and not handwritten signature, the signature was missing, there was no address at all, the registration date was invalid, the signature was withdrawn, and “miscellaneous.” Thompson Decl., ¶5, Ex. 4. A total of 1,841 signatures were invalidated for “fatal pending.” Thompson Decl., ¶5, Ex. 4.

On August 18, 2022, the Committee informed the Registrar via email that it intended to exercise its statutory right to examine the Recall Petition to assess which signatures were disqualified and why. Thompson Decl., ¶6, Ex. 5.

On August 19, 2022, the Registrar replied that the Committee could review the Recall Petition and the voter record data that led to the disqualification of each signature. Thompson Decl., ¶7, Ex. 6. If the Committee had any questions during the review, it could submit them in writing. Thompson Decl., ¶7, Ex. 6. The Registrar warned the Committee that Govt. Code section 6253.5 did not provide a method to challenge the certificate of results if the Committee found that invalidated signatures were valid. Thompson Decl., ¶7, Ex. 6.

On August 29, 2022, the Registrar told the Committee that at least three election officials reviewed a signature before its invalidation. Thompson Decl., ¶8. The Registrar imposed several restrictions on the Committee’s examination. Thompson Decl., ¶9. Only 14 Committee members could conduct the review three days per week on no more than seven computer workstations, which the Registrar staff had to operate. Thompson Decl., ¶9. Committee members also could not use personal electronic devices for recordkeeping purposes. Thompson Decl., ¶9.

The Committee began the review under these conditions on September 6, 2022. Thompson Decl., ¶10. The process has been slow as it involves a review of the information provided by each Recall Petition signer and a comparison to the limited information in the Registrar’s computer system. Thompson Decl., ¶10. The presence of two Committee members at each computer workstation is of no help because they can only review one voter per workstation at a time. Thompson Decl., ¶11. Because Committee members cannot mark physical copies of files or use personal devices, the Registrar asks them to hand write all relevant information to track their progress, which makes organization and use of notes arduous. Thompson Decl., ¶11.

The Registrar has not answered almost all the written questions submitted by the Committee. Thompson Decl., ¶12. On October 18, 2022, after hundreds of email questions, the Registrar sent one email that offered to make available three reports for signatures challenged as “Cancelled Deceased”, “Fatal Pending”, and Duplicates. Thompson Decl., ¶12, Ex. 7. The Registrar claimed that although it would try to make one more report available, any questions not covered by those reports exceeded the authorized scope of the examination per Govt. Code section 6253.5 and the information cannot be provided. Thompson Decl., ¶12, Ex. 7.

The Registrar has refused to provide the Committee with training materials for the DIMS software system it uses to store voter registration records. Thompson Decl., ¶13. The Registrar’s petition management system -- the Petition Signer Module -- uses numerous abbreviations, codes, dates, and other information that a person cannot decipher without prior knowledge. Thompson Decl., n. 1. The Committee has had to rely on information from Registrar staff, which changes and is often inaccurate. Thompson Decl., ¶13.

The Registrar has declined to provide the Committee with access to the following data and records.

a. The Committee has asked for access to all signatures on file for reach voter. The Registrar only allows Committee members to review one sample signature on file for each voter. Thompson Decl., ¶14(a). But 2 CCR section20960(i) required Registrar examiners to compare the signature on the Recall Petition with all signatures in the record. Thompson Decl., ¶14(a).

b. The Committee asked for an electronic copy of the list and report of signatures invalidated as duplicates, but the Registrar only provided a 1700-page physical copy. Thompson Decl., ¶14(b). The Registrar will not allow the Committee to take this outside of the examination room or to mark it. Thompson Decl., ¶14(b). What could be a minutes-long process using an electronic file will instead takes months. Thompson Decl., ¶14(b).

c. The Committee has requested electronic lists or reports from the Petition Signer Module that identify all voters whom the Registrar found submitted a valid signature for the Recall Petition. Thompson Decl., ¶14c, Ex. 12. The Committee wants to compare this information to determine whether a duplicate signature was validated. Comparison of petition signatures with an electronic list of validated signatures from the Petition Singer Module will enable the Committee to determine if the Module count is inaccurate. Otherwise, the Committee will have to go through all 715,833 signatures and cross-check each against printed lists of rejected signatures. Thompson Decl., ¶14(c).

d. The Committee has requested electronic lists or reports for signatures invalidated for death or “fatal pending” and has received only printed lists. Thompson Decl., ¶14(d), Exs. 8-9. The Committee has also requested that the Registrar permit it to mark at least one copy of the physical report to no avail. Thompson Decl., ¶14(d), Ex. 9.

e. The Committee has asked, for all signatures rejected because the voter’s residence address on the Recall Petition did not match the voter’s registered address, spreadsheets of prior addresses on file, dates of all changes, the reason for each change, and notice provided to the voter for involuntary address changes. Thompson Decl., ¶14(e). The report the Registrar has provided shows only when the voter changed or updated its address during the circulation period. Thompson Decl., ¶14(e). The Registrar has agreed to produce voter notifications, but not until after December 6, 2022. Id., Exs. 9-11.

Under current conditions, the Committee can review only 400 signatures per day. Thompson Decl., ¶15. At this rate, it will not finish review until May 2024, six months before Gascón’s term ends. Thompson Decl., ¶15.

The Registrar has dozens of computer workstations that go unused as the Committee conducts its review. Thompson Decl., ¶16. If the Registrar permitted 25 representatives per day to use 25 workstations to review signatures five days per week, the Committee could finish the review in 3-4 months. Thompson Decl., ¶16.

On September 21, 2022, Committee’s counsel sent the Registrar a letter demanding that it (1) produce all requested documents for “mismatch” or “different address” signatures; (2) expand the number of Committee representatives who can participate in the review to 25; (3) expand the number of workstations to 25; (4) permit review on five days per week; (5) provide training or other materials that explain the DIMS software; and (6) respond to all questions that the Committee asks within 48 hours. Carroll Decl., ¶2, Ex. 13.

The Registrar responded on September 26, 2022 that it answered all the questions and requests that were in the scope of authorized review under Govt. Code section 6253.5 and the remaining questions were beyond that scope. Carroll Decl., ¶2, Ex. 14. It also alleged that the Committee did not have as many designees conducting the review as currently allowed. Carroll Decl., ¶2, Ex. 14. The parameters in place ensure the preservation of the Recall Petition, protect voter data not subject to public disclosure, operate within COVID-19 safety guidelines, and allocate public resources between the Committee’s inspection and the upcoming general election. Carroll Decl., ¶2, Ex. 14. The Govt. Code authorizes a review to determine which signatures were disqualified and why, not to audit the process the Registrar used to do so. Carroll Decl., ¶2, Ex. 14. The Registrar would continue its current level for support for the inspection, except that it may decrease it in response to the then-upcoming election. Carroll Decl., ¶2, Ex. 14.

The Committee has identified thousands of wrongfully invalidated signatures and believes it could find more if the Registrar made the requested accommodations. Thompson Decl., ¶17.

The current rate of signatures improperly rejected for reasons other than that the voter was not registered is 39%. Thompson Decl., ¶18. The Registrar has invalidated two signatures from the same person because one was a duplicate and the other had missing information. Thompson Decl., ¶19. The Committee has also found hundreds of signatures rejected for lack of registration when the voter is registered. Thompson Decl., ¶19. The Registrar has also invalidated signatures for mismatched addresses when the voter’s address matched at the time of the signature, but the voter updated it later. Thompson Decl., ¶20.

On August 8, 2022, counsel for the Committee wrote to the Board of Supervisors that the Registrar did not use current laws and uniform guidelines set forth in the Elections Code or CCR when it reviewed the signatures. Thompson Decl., ¶21, Ex. 15. These guidelines require that reviewers conclude that a signature is a “mismatch” only if two reviewers find that it possesses multiple, significant, and obvious differing characteristics from the signatures in the voter’s registration record. Thompson Decl., ¶22. The Committee has found sufficient similarities for 56% of the signatures reviewed. Thompson Decl., ¶¶ 23-24.

The Registrar has also invalidated signatures as duplicates without counting one; this includes the signature of Committee’s counsel. Thompson Decl., ¶25.

During a random sampling or full signature review, reviewers select a signature to review and attempt to find the voter’s information on DIMS. Flores Decl., ¶10. If the voter’s name, address, and signature on DIMS match the information on the petition, the reviewer marks the petition with “VS” for “Valid Signer” along with the voter’s ID. Flores Decl., ¶10. I f a signature was marked valid and then not counted, that would be because the Registrar rejected the signature for another reason, like a duplicate signature. Flores Decl., ¶10.

If the petition signor’s information does not match DIMS, the staff will add a challenge code in the margin to reflect the issue. Flores Decl., ¶11. Registrar staff will also note the challenge code in the Petition Signer Module. Flores Decl., ¶11.

To determine if the signature matches past signatures, the staff presumes the signature is valid. Flores Decl., ¶15. Staff starts with the signature on the voter’s affidavit of registration in DIMs. Flores Decl., ¶15. If it does not match, staff turns to any signature in the voter’s file. Flores Decl., ¶15. If none of them match, the checker will mark the signature with the challenge code “SIG.” Flores Decl., ¶15.

All challenge codes are rechecked by two staff members and a supervisor. Flores Decl., ¶12. Once verified, the margin of the petition is marked in red with the number (1) and a circle to indicate that it has been rechecked by a second staff member, a number (2) and a circle to indicate that a third staff member has rechecked it, and a supervisor checks their work. Flores Decl., ¶¶ 12-13. Sometimes, these marks are inadvertently omitted. Flores Decl., ¶14.

Staff members also check whether the voter’s address on the petition matches their residence address on the voter’s affidavit of registration. Flores Decl., ¶16. If a voter makes a typographical error in the residential address but the staff member can still verify it, the staff member marks it as “VS”. Flores Decl., ¶16. If the petition address does not match the one on file, the staff member checks the voter’s previous address on file when the voter signed the petition. Flores Decl., ¶16. If the signature fails both checks, the staff member marks it as “DA”. Flores Decl., ¶16.

As with signature verification, staff recheck all challenge codes to ensure that the correct code is on the petition, it matches the information on DIMS, and the Voter ID is next to the voter’s signature. Flores Decl., ¶12, Ex. M. After two rechecks by staff and a third by a supervisor, staff makes a notation in the petition file of the voter’s voter file in DIMs as to whether the signature is invalid and why. Flores Decl., ¶12, Ex. M. The Registrar will only invalidate a signature with a code of “DA” if the original checker and both re-checkers agree. Flores Decl., ¶16.

On July 6, 2022, the Registrar reviewed a 5% sample of the signatures on the Recall Petition using a random number generator. Flores Decl., ¶¶ 6, 17, Ex. A. The validity rate was 72.55%, which meant the Recall Petition had 91.6% of the required signatures. Flores Decl., ¶¶ 6, 17, Exs. B-C. Per Elections Code section 11225, the Registrar conducted a full count to verify all signatures. Flores Decl., ¶6.

The Registrar completed the full count on August 15, 2022. Flores Decl., ¶7. It found that of the 195,783 invalid signatures, 88,464 were not registered to vote, 43,593 were duplicates, 32,187 had different addresses, 9,490 contained mismatched signatures, 7,344 were canceled, 5,374 had an out-of-county address, and 9,331 were invalid for other reasons. Flores Decl., ¶¶ 7, 17, Ex. D.

The signature validity for the Recall Petition was 72.6%. Zeluff Decl., ¶4. This is around average; most signature-gathering firms assume that only 70-75% of the signatures they gather will be valid. Zeluff Decl., ¶5. Out of six ballot measures in this year’s general election, the signature validity rate for petitions was 71.45%-76.41% statewide and 67.7%-76.9% in Los Angeles County. Zeluff Decl., ¶¶ 6-12, Exs. A-F. On average, signature gathering firms obtain 158.7% of the raw signatures needed to qualify if all were valid. Zeluff Decl., ¶14. The Recall Petition only gathered 126%, so it needed a validity rate of 79% to have enough signatures. Zeluff Decl., ¶¶ 14-15.

When the Registrar agreed to allow the Committee to examine the Recall Petition signatures, it also provided the Committee with a document that detailed the rules and procedures of its examination. Flores Decl., ¶20, Ex. E. It emphasized that security was a primary concern. Flores Decl., ¶20, Ex. E. These rules were consistent with the California Association of Clerks and Election Official’s (“Election Association”) Failed Petitioner Examination Guidelines. Flores Decl., ¶21, Ex. F. This includes a prohibition on electronic devices to prevent people from taking pictures of confidential files. Flores Decl., ¶23, Ex. F.

On August 29, 2022, the parties met to discuss the inspection date and hours. Flores Decl., ¶22. Although the Registrar wanted to limit the Committee’s review to 10 participants at 5 computer stations, it agreed to 14 participants at 7 stations three days per week. Flores Decl., ¶22. Sign-in sheets between September 6 and November 17, 2022 reveal that the Committee only averaged 8 representatives per day, and only 5-7 came in on most days. Flores Decl., ¶24, Ex. G. The Registrar assigned 14 staff members to help the Committee: 7 for the workstations, 4 to retrieve petition information by challenge category, and 3 supervisors. Flores Decl., ¶24. On days where the Committee only had 5-7 representatives, the Registrar reassigned some of the workstation staff to other matters. Flores Decl., ¶24.

In August 2022, the Committee purchased several voter files from the County. Flores Decl., ¶25. It has also purchased printout and a PDF list of the names and voter information for all signatures on the Recall Petition that were invalidated. Flores Decl., ¶25. The Committee has also made various requests that the Registrar could not accommodate because they involve access to information that is confidential by law to protect privacy. Flores Decl., ¶26.

The Registrar has provided the Committee (1) a list of abbreviations used in the signature verification process and other information about it; and (2) training materials that staff use for the DIMS system petition module. Flores Decl., ¶27, Exs. H-N. When the Registrar informed its DISM system contractor, Runbeck Election Services, Inc. (“Runbeck”), of the Committee’s request, Runbeck required that the Registrar redact all product-related information; this required the Registrar to redact screenshots oof DIMS software from the training materials. Flores Decl., ¶33, Ex. P.

The Registrar’s staff responded to most of the Committee’s questions by creating a hard copy of voters whose signatures were disqualified in various categories with additional information. These lists include (1) duplicate signatures; (2) voters whose addresses do not match the affidavit of registration; (3) “fatal pending” voters where the registration was incomplete or invalid; and (4) deceased signers. Flores Decl., ¶28, Ex. O. These lists were created specifically for the Committee’s recall examination by the Registrar’s IT staff. Flores Decl., ¶28, Ex. O.

For example, in the list of those denied for mismatched addresses, the Registrar included the current address, the prior address, and the date of the address change if it occurred during the Recall Petition’s circulation period. Flores Decl., ¶28, Ex. O. Address changes before the date and the reasons for an address change are not relevant. Flores Decl., ¶34.

In the list of duplicate signatures, the Registrar identified which signature it counted. Flores Decl., ¶29. While it may have failed to count some voters with duplicate signatures, the Committee can easily use these lists to quantify how many. Flores Decl., ¶29.

The Committee insists on electronic lists so that it can run inquiries in its own offices. Flores Decl., ¶30. The Registar cannot accommodate this request because it would make the information public, which the Registrar cannot legally do. That is why inspection of the information has been confined to an examination room and Committee representatives cannot bring in cell phones or other electronic devices. Flores Decl., ¶30.

The Committee has requested voter registration data that goes far beyond the reason why a signature was disqualified, such as signatures for all signers of the Recall Petition. Flores Decl., ¶31. Whenever the Registrar invalidated a signature because it did not match any on file, it has allowed the Committee to review the signature on the Recall Petition and voter’s registration record. Flores Decl., ¶31. It cannot isolate other signatures on file from non-public or confidential information on DIMS. Flores Decl., ¶31. Those signatures come from a variety of files, so the Registrar cannot create a program to extract all the signatures at once. Flores Decl., ¶31.

An electronic list of all valid signatures does not exist and it would be three times bigger than the rejected signatures combined. Flores Decl., ¶32. The Registrar cannot generate such a list when the file is so large. Flores Decl., ¶32. Any change in the system would also risk a degradation to the DIMS system, which the Registrar needs for elections. Flores Decl., ¶32. It would also introduce a risk of unintended performance issues or application failure when introducing or running new queries or making changes to the system in a live environment. Flores Decl., ¶32.

During the Committee’s review, the Registrar was administering and preparing for the November 2022 general election. Flores Decl., ¶36. This included verification of signatures for two statewide initiative petitions, the processing of 1.9 million mail ballots, updates to 250,000 voter records, and general efforts to meet an election verification deadline of December 8. Flores Decl., ¶36. The Sacramento County Superior Court has also extended the county verification deadline to 30 business days after the Secretary of State’s certification of the general election. Flores Decl., ¶36, Ex. Q. The Registrar expects to begin signature review for two more statewide referenda in December 2022. Flores Decl., ¶37.

These processes use the same resources as the Committee’s review of the signature invalidation for the Recall Petition. Flores Decl., ¶39. Temporary staff recruitment has been limited, and it takes several days to train people in the signature review process. Flores Decl., ¶40. The Registrar already has expanded the workday and work week. Flores Decl., ¶41. It expects to lose 400 temporary workers after certification of the general election. Flores Decl., ¶42. Full-time workers will need vacation time after months of 10-12 hours workdays. Flores Decl., ¶42.

What is normally a two-day review for a failed petition has turned into a two-month effort by the Committee that has drained Registrar staff and resources. Flores Decl., ¶43.

Contrary to the claim in paragraph 31 of the Flores declaration, it is possible for the Registrar to isolate images of prior voter signatures on the DIMS system without disclosing confidential personal identifiable information. Reply Thompson Decl., ¶3. A Registrar supervisor informed the Committee’s attorney that the “signature” tab in DIMS displays all signatures captured, whether by affidavit, re-registration, or VBM envelope. Id. These signatures are already isolated from personal identifiable information. Id. The supervisor said that this feature has been disabled on the computers that the Committee has been permitted to use so that only one signature sample is viewed. Id.

The Flores declaration is mistaken that the Registrar can provide prior addresses only through a labor-intensive manual process of printing and redacting. Reply Thompson Decl., ¶4. Multiple supervisors have informed the Committee’s attorney that a voter’s prior addresses are listed under the “last transaction” tab in DIMS. Id. This tab contains notes explaining the most recent update to the voter’s file. Id. If the computers available to the Committee were reconfigured to review the last transaction tab, the Committee could ascertain both the date of the most recent address update and why the voter file was changed. Id.

The Registrar has provided signature review training manuals, but no user manuals for DIMS. Reply Thompson Decl., ¶6. Contrary to paragraph 34 of the Flores declaration, the Committee’s lawyer was informed by Registrar staff that a data entry user manual exists and is used by the Voter Records Division. Id.

Although Registrar policy prohibits the public to use cell phones or take pictures during the examination process, the Committee requires the use of electronic devices for legitimate purposes of note taking, data entry, and internet searches. Reply Thompson Decl, ¶7.

After the court granted the OSC, the parties met and conferred on access and production of the Requested Documents. Registrar’s Status Update (“Update”), p. 2. The greatest progress was made on access. Id.

The Registrar agreed to permit 20 Committee representatives to use 10 workstations beginning November 15, 2022. Update, p. 2. Beginning December 8, 2022, the Committee can use 20 workstations and review files four days per week instead of three. Update, p. 2. The Registrar may expand access further in January if it can do so and if the Committee makes use of the accommodations granted to that point. Update, p. 2.

The Committee has asked to directly operate the workstations without Registrar representatives. The Registrar is willing to reduce oversight to some extent if the Committee also agrees to only use the workstations to access and review information relevant to the rejected signatures. Update, p. 2.

For Request No. 1 – prior signatures on file for voters whose signatures were denied because of a mismatch – the Registrar acknowledges that prior signatures are reviewed before a signature is rejected for mismatch but maintains that Govt. Code section 6253.5 only requires disclosure of the current signatures. Update, pp. 2-3. It cannot reveal prior signatures separate from confidential information without pulling manually these records and redacting other information. Update, p. 3. The process will take about 3,080 staff hours at $15 per hour. Status Update at p. 3; Flores Decl., ¶31.

For Request No. 2 – addresses and change of address notices for voters whose residence address on the Recall Petition did not match the voter’s registered address – the Registrar acknowledges that checkers review prior addresses before a signature is rejected but does not believe that Govt. Code section 6253.5 requires disclosure of anything except address changes that took place during the circulation of the recall petition. Update, p. 3. It cannot reveal prior addresses separate from confidential information without manually pulling these records and redacting other information. Status Update at pp. 3-4. The process will take about 10,700 staff hours at $15 per hour. Update, p. 4; Flores Decl., ¶34.

For Request No. 3 – an electronic list of voters whose signatures were valid, invalid as a duplicate, invalid because registration was cancelled due to death, and invalid for “fatal pending” – the Registrar cannot generate a list of valid signatures because it would crash the electronic management system. Update, p. 4. It has provided physical versions of the other lists but cannot provide an electronic version because the Committee could make confidential information available to the public. Update, pp. 4-5.

For Request No. 4 – all training materials or user manuals for DIMS to interpret the data contained in the system – the Registrar had provided what it can without disclosing proprietary information of its vendor. Update, p. p. 5.

Petitioner Committee seeks a preliminary injunction compelling the Registrar to (1) produce the documents responsive to Request Nos. 1-4, and (2) provide access to the requested voter information for up to 25 Committee representatives at 25 computer workstations five days a week, and (3) permit Committee representatives to use personal electronic devices during the review process. Although the Registrar has made some concessions on access, it generally opposes.

The CPRA was enacted in 1968 to safeguard the accountability of government to the public. San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App. 762, 771-72. Govt. Code section 6250 declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The CPRA’s purpose is to increase freedom of information by giving the public access to information in possession of public agencies. CBS. Inc. v. Block, (1986) 42 Cal. 3d 646, 651.

The CPRA makes clear that “every person” has a right to inspect any public record. §6253(a). The term “public record” is broadly defined to include “any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. §6252(e).

Public records are always open to inspection during the office hours of the state or local agency, and every person has a right to inspect any public record, with exceptions set forth in the statutory scheme. Govt. Code §6253(a). Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law. Govt. Code §6253(a). The agency shall make the records promptly available upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. §6253(b). Upon request, an exact copy shall be provided unless impracticable to do so. Id.

“Notwithstanding sections 6252 and 6253,…county…recall petitions circulated pursuant to Section 5091 of the Education Code…and all memoranda prepared by the county elections officials in the examination of the petitions indicating which registered voters have signed particular petitions shall not be deemed to be public record and shall not be open to inspection except by…the proponents of the petition and the representatives of the proponents…in order to determine which signatures were disqualified and the reasons therefor.” Govt. Code §6253.5.

Californians are guaranteed a right to privacy under the Constitution. Const. Art. I, §1. Govt. Code section 6253.5 was among multiple statutes enacted in 1974 to implement the constitutional guarantee of privacy by ensuring the least interference with that right of persons signing initiative, referendum and recall petitions. Bilofsky v. Deukmejian (“Bilofsky”) (1981) 124 Cal.App.3d 825, 831, n. 5.

As pertinent, the plain meaning of Govt. Code section 6253.5 is that a recall petition and the memoranda prepared by county election officials in examining the recall petition are not public records, but they may be inspected by the proponents of the petition and their representatives for the purpose of determining which signatures were disqualified and why.

Unless otherwise prohibited by law, any agency that has information constituting an identifiable public record that is not exempt from disclosure under the CPRA and that is in an electronic format shall make that information available in an electronic format when requested by any person. Govt. Code §6253.9(a). The requester bears the cost of production when the request would require data compilation, extraction, or programming to produce the record. Govt. Code §6253.9(b).

The public agency does not need to reconstruct a record in an electronic format that it no longer has. Govt. Code §6253.9(c). Nor is it required to release a record held in electronic form if to do so would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained. Gov. Code §6253.9(f). Finally, Govt. Code section 6253.9 does not permit public access to records held by any agency for which access is otherwise restricted by statute. Govt. Code §6253.9(g).

The home address, telephone number, email address, precinct number, or other number specified by the Secretary of State for voter registration purposes, and prior registration information shown on the affidavit of registration, is confidential and shall not be disclosed to any person, except pursuant to Elections Code Section 2194. Govt. Code §6254.4(a).

If the elections official finds a petition insufficient, the petition signatures may be examined in accordance with Govt. Code section 6253.5. Elections Code §11301. Public access to the petition must also be restricted in accordance with Govt. Code section 6253. Elections Code §17400(c).

Except for an inapplicable exception, information on an affidavit of voter registration is confidential and shall not appear on any medium routinely available to the public. Elections Code §2194(a)(1). The agency shall provide that information with respect to any voter to (1) any candidate for federal, state, or local office; (2) any committee for or against any initiative or referendum measure for which legal publication is made; and (3) any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the Secretary of State. Elections Code §2194(a)(3).

Notwithstanding any other law, the California driver’s license number, the California identification card number, the social security number, and any other unique identifier used by the State of California for purposes of voter identification shown on the affidavit of voter registration of a registered voter are confidential and shall not be disclosed to any person. Elections Code §2194(b)(1).

Notwithstanding any other law, the voter’s signature shown on the affidavit of registration is confidential and shall not be disclosed to any person, except that an elections official shall permit a person to view the signature of a voter for the purpose of determining whether the signature compares with a signature on an affidavit of registration or an image thereof or a petition but shall not permit a signature to be copied. Elections Code §2194(b)(2), (c)(2).

The voter’s home address or signature shall be released whenever the person’s vote is challenged, but shall only be released to the challenger, elections officials, and other persons necessary to defend or adjudicate the challenge. Elections Code §2194(c)(1).

Voter registration information obtained from a source agency may be used to conduct an audit of voter registration lists for election, scholarly, journalistic, political, or governmental purposes, including to evaluate compliance with applicable federal and California laws. 2 CCR §19003(a)(6).

Request No. 1 seeks prior signatures on file for voters whose signatures were denied because of a mismatch.

The Registrar rejected almost 10,000 signatures because they did not match the signatures on filed. The Registrar has provided access to the signature on the Recall Petition and on the voter’s registration record. Flores Decl., ¶31. The Committee seeks access to all voter signatures on file for each voter to determine whether signatures were improperly rejected. Pet. Op. Br. at 12.

The Committee notes that the Registrar may invalidate a petition signature only where it does not match any of the signatures in the voter's registration record. 2 CCR §20960(e), (i), (j). The Registrar acknowledges that it only invalidated a signature for a mismatch when three reviewers agree that it does not sufficiently match any signature on file. Flores Decl., ¶15. The Committee is entitled to view the signature of a voter for the purpose of determining whether it compares with the signature on the affidavit of registration. Elections Code §2194(c)(2). Pet. Op. Br. at 12.

The Registrar argues that Govt. Code section 6253.5 only requires disclosure of the current signatures. It acknowledged that prior signatures on file for voters whose signatures were denied because of a mismatch were reviewed by the Registrar, but it cannot reveal them separate from confidential information without pulling manually these records and redacting other information. Opp. at 11; Update, p. 3. The process will take about 3,080 staff hours at $15 per hour. Flores Decl., ¶31.

The Committee rebuts this claim with evidence that it is possible for the Registrar to isolate images of prior voter signatures on the DIMS system without disclosing confidential personal identifiable information. Reply Thompson Decl., ¶3. A Registrar supervisor informed the Committee’s attorney that the “signature” tab in DIMS displays all signatures captured, whether by affidavit, re-registration, or VBM envelope. Id. These signatures are already isolated from personal identifiable information and the supervisor said that this feature has been disabled on the computers that the Committee has been permitted to use so that only one signature sample is viewed. Id.

The pertinent law with respect to voter signatures is that, if the elections official finds a recall petition to be insufficient, the petition signatures may be examined in accordance with Govt. Code section 6253.5. Elections Code §11301. Govt. Code section 6253.5 permits only the recall petition and the memoranda prepared by county election officials to be inspected by the proponents of the petition. Notwithstanding any other law, the voter’s signature shown on the affidavit of registration is confidential and shall not be disclosed to any person, except that an elections official shall permit a person to view the signature of a voter for the purpose of determining whether the signature compares with a signature on an affidavit of registration or an image thereof or a petition but shall not permit a signature to be copied. Elections Code §2194(b)(2), (c)(2).

The Committee argues that the Registrar misreads Elections Code section 2194(c)’s phrase “the signature of the voter”, which includes a collective singular noun “signature” and does not refer to a single signature. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, (2d Cir. 2017) 846 F.3d 492, 511 (interpreting “navigable waters” as a collective singular noun, meaning all navigable waters). It would make no sense for the Committee’s signature review not to be co-extensive with the Registrar’s sample review of voter signatures. The purpose of Govt. Code section 6253.5 and Elections Code section 2914 is to allow the reviewer to verify that a signature is mismatched, and the Committee cannot do so if it does not have access to all signature samples used by the Registrar to disqualify a petition signature. Reply at 7.

The Committee is correct. Elections Code section 2194(c)(1) provides that the signature of any voter shall be released as necessary to adjudicate a signature challenge. Elections Code section 2194(c)(2) then provides that the signature of a voter may be inspected for the purpose of determining whether it matches the signature on the affidavit of registration or the petition. This means that all signatures of the voter on file may be reviewed by the Committee. Prior signatures of a voter are relevant to the Committee’s evaluation.

The Committee has demonstrated a likelihood of success for Request No. 1. The court will assume that prior signatures are readily accessible based on the vague admission of an unknown supervisor but will permit the Registrar to argue to the contrary at hearing.

Request No. 2 seeks addresses and change of address notices for voters whose residence address on the Recall Petition did not match the voter’s registered address.

The Registrar rejected over 32,000 signatures because the address identified on the petition differed from the voter’s registered address. For these voters, the Committee requested an electronic list of prior addresses on file, dates of all changes, the reason for each, and notice provided for involuntary changes. Thompson Decl., ¶14(e). The Registrar has provided a printout of the current address, the prior address, and the date of the change if during the Recall Petition’s circulation period. Flores Decl., ¶28, Ex. O. It has also agreed, after December 5, 2022, to look for any written notification of an address change it sent to voters. Thompson Decl., ¶14(e), Ex. 11.

The Committee acknowledges that current and prior voter registration information is generally confidential (Govt. Code §6254.4(a)), such information shall be provided to a committee for or against any initiative or referendum measure, and to any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the Secretary of State. Elections Code §2194(a)(3). Voter registration information obtained from a source agency may be used to conduct an audit of voter registration lists for election, scholarly, journalistic, political, or governmental purposes, including to evaluate compliance with applicable federal and California laws. 2 CCR §19003(a)(6). Pet. Op. Br. at 15.

The Committee contends that is exactly what it is doing in its review. The prior addresses for the voter, the dates of change, the reasons for change, and whether and when notifications were sent to them would appear to be in electronically-stored data that the Registrar could easily provide. Pet. Op. Br. at 15-16.

For purposes of verifying a signature on an election petition, the elections official shall determine that the residence address on the petition is the same as the residence address on the affidavit of registration. Elections Code §105(a)(1). If the addresses are different, or if the petition does not specify the residence address, the affected signature is not valid. Elections Code §105(a)(1). An incomplete or inaccurate apartment or unit number is acceptable. Elections Code §105(a)(1). There is an exception where the voter’s current residence address in the voter’s registration record is different due to an update to the voter's record, but it was the correct residence address on any date during the period in which all the signatures to the petition were obtained as reported in the declaration signed by the circulator of the petition. 2 CCR §20940(b)(1).

The Registrar acknowledges that three re-checkers review prior addresses before a signature is rejected but does not believe that Govt. Code section 6253.5 requires disclosure of anything except address changes that took place during the circulation of the recall petition. Update, p. 3. The Registrar has provided the Committee with a report that includes prior addresses during the circulation period, along with the date of the address change. Flores Decl., ¶34. Address changes before the circulation period are irrelevant to disqualification. Id. Similarly, the reason for the change of address and whether the voter was notified to update their affidavit of registration are not relevant to the Committee’s examination and not within the statute or regulation. A voter’s home address…and prior registration information shown on the affidavit of registration” is confidential except as permitted by Elections Code section 2194, which only provides for release of a current address. Opp. at 15.

The Registrar notes that, while the Committee argues that access to prior addresses is provided in Elections Code section 2194(a)(3), that provision allows access to certain voter information pursuant to the Secretary of State’s regulations. The regulation grants access to such information for limited purposes. The Committee does not meet the requirement that voter information obtained be used for an “election” or “political” purpose to communicate with voters. 2 CCR §19003(a). And while the Committee argues that 2 CCR section 19003(a)(6) allows audits of voter registration lists to evaluate voter information accuracy and compliance with the law, Govt. Code section 6253.5 does not authorize audits and the Committee does not perform an audit when it seeks specific voter information about rejected signatures. Opp. at 16.

Further, the regulations limit requests for voter registration records to ten specific voter registration records. 2 CCR §19010(e). The voter registration information available also does not include the prior address information sought by the Committee. Voter registration information only includes certain information that is included in an individual voter’s record. 2 CCR §19001(h). While the public also may purchase voter registration information, that information would not necessarily reflect prior addresses. Prior addresses would only be part of voter registration information if done by voter registration affidavit and not through a change of address or other means. Flores Decl., ¶35. Opp. at 16.

Finally, the Registrar argues that it cannot reveal prior addresses separate from confidential information without manually pulling these records and redacting other information. Status Update at pp. 3-4. The process will take about 10,700 staff hours at $15 per hour. Update, p. 4; Flores Decl., ¶34.

The Committee replies that neither Govt. Code section 6254.4(a) nor Elections Code section 2194 draws a distinction between current and prior addresses. The Registrar has already agreed to provide voter notification cards. Moreover, these statutes only regulate disclosure of “affidavit of voter information” and are irrelevant to the change of address information sought by the Committee. In any event, Elections Code section 2194 requires disclosure of affidavit of voter information to “any committee” for or against an initiative or referendum measure. While the statute does not expressly refer to recall petitions, other statutes generally refer to a “measure” to include recall petitions. See Govt. Code §82043. Elections Code section 2914 contains no limit on the purpose for which the information can be used. Reply at 8-9.

The Committee’s argument only aids it somewhat. Except for an inapplicable exception, information on an affidavit of voter registration is confidential and shall not appear on any medium routinely available to the public. Elections Code §2194(a)(1). Such information shall be provided to specified persons pursuant to Elections Code section 2194(a)(3). Assuming that a recall committee qualifies under Elections Code section 2194(a)(3), the Committee is correct that provision only permits disclosure of “the affidavit of voter registration information” identified in Govt. Code section 6254.4. Elections Code §2194(a). In turn, Govt. Code section 6254.4, entitled “voter registration information”, identifies the voter’s home address, telephone number, email address, precinct number, or other number specified by the Secretary of State for voter registration purposes, and prior registration information shown on the affidavit of registration. Govt. Code §6254.4(a).

Finally, notwithstanding any other law, the California driver’s license number, the California identification card number, the social security number, and any other unique identifier used by the State of California for purposes of voter identification shown on the affidavit of voter registration of a registered voter are confidential and shall not be disclosed to any person. Elections Code §2194(b)(1). The voter’s home address shall be released whenever the person’s vote is challenged, but only to the challenger, elections officials, and other persons necessary to defend or adjudicate the challenge. Elections Code §2194(c)(1).

Thus, the Committee is entitled to the affidavit of voter registration information identified in Govt. Code section 6254.4, current or former, under Elections Code section 2194(a)(3). The statute draws no distinction between current and former affidavits of voter registration information. The information must be redacted to conceal the voter’s unique identifier information under Elections Code section 2194(b)(1), but this redaction does not include former addresses.

The Registrar is incorrect that Elections Code section 2194(a)(3) only allows access to certain voter information pursuant to the Secretary of State’s regulations, for limited purposes which the Committee does not meet. The Secretary of State’s regulations pertain only to “any person for election, scholarly, journalistic, or political purposes, or for governmental purposes”. Election Code §2194(a)(3). They do not apply to any candidate or committee for or against a referendum or initiative. See id. Thus, the regulations limiting access and pertaining to audits (2 CCR §§ 19003(a), 19003(a)(6), 19010(e)) do not apply.

However, the Committee is only entitled to current and former redacted affidavits of voter registration information. This voter registration information may or may not include prior address information. The Registrar shows that prior addresses would only be part of voter registration information if done through a voter registration affidavit; a change of address or other means of changing a voter address would be elsewhere in the voter’s file. Flores Decl., ¶35.

Moreover, the Registrar is correct that the only relevant addresses are those on (1) the voter’s current affidavit of registration, and (2) a prior address on any affidavit of registration affidavit for the voter in effect during the circulation period. Elections Code §105(a)(1); 2 CCR §20940(b)(1). Prior addresses outside the circulation period are irrelevant. The Registrar has provided the relevant information through a printout of the current address, the prior address, and the date of the change if during the Recall Petition’s circulation period. Flores Decl., ¶28, Ex. O. It has also agreed, after December 5, 2022, to look for any written notification of an address change it sent to voters. Thompson Decl., ¶14(e), Ex. 11.

As a result, the Committee has failed to demonstrate a probability of success in its claim for Request No. 2.

Request No. 3 seeks an electronic list of voters whose signatures the Registrar (1) confirmed as valid, (2) invalidated as a duplicate, (3) invalidated because registration was cancelled due to death, and (4) invalidated for “fatal pending.” Pet. Op. Br. at 13.

The Committee notes that the Registrar has provided a hard copy of the last three lists, but Committee representatives can neither mark on the copy nor remove it from the examination room. Thompson Decl., ¶14(b-(d), Exs. 8-9, 12. Under Govt. Code section 6253.5, the Committee is entitled to inspect the recall petition and “all memoranda prepared by the county election officials in the examination of the petitions….” The CPRA requires that any disclosable records that exist in electronic format must be produced in that format. Govt. Code §6253.9(a). This includes compiling data from an electronic database if necessary. Id.

The Committee argues that the Registrar’s review of the Recall Petition including marking in the Petition Signer Module which voters’ signatures were accepted, which were rejected, and the reasons why. Thompson Decl., ¶13, n. 1. This data constitutes memoranda under Govt. Code section 6253.5. Pet. Op. Br. at 13. Electronic versions of these memoranda are critical to the Committee’s review. The Committee could literally compare an electronic list of duplicate signatures with the electronic list of verified signatures in a matter of minutes to determine how many valid signatures were not counted at all. Similarly, the Committee has found numerous signatures marked as valid (VS) yet were coded as rejected in the Petition Signer Module. A comparison of the petition signatures with an electronic list of verified signatures would enable the Committee to quickly determine how inaccurate the count is. Pet. Op. Br. at 14.

The Registrar contends that the hard copy print outs for the categories provided -- which may be used only in the examination room – included additional information on the rejected signatures beyond that legally required. The Registrar cannot generate a list of valid signatures because it is not within the scope of Govt. Code section 6253.5. Additionally, the creation of an electronic list of valid signatures would crash the electronic management system. Flores Decl., ¶28, Ex. O; Update, p. 4.

The Registrar cannot provide an electronic version of the other lists because they could be copied, transferred, or distributed in ways contrary to law and the public interest. The Committee has made plain that it wants to use these lists off-site (Pet. Ex. 8), but “public access to recall petitions shall be restricted in accordance with Section 6253.5 of the Government Code.” Elections Code §17400(c). The Registrar also argues that the hard copy lists are not memoranda prepared in the examination of the Recall Petition under Govt. Code section 6253.5; the lists were created solely to assist the Committee. Flores Decl., ¶28. Even if they are memoranda, Govt. Code section 6253.5 only provides a right to examine them, not have an electronic list. Opp. at 14.

The court agrees with the Committee (Reply at 5) that the Registrar made electronic notations in the DIMS voter files identifying who signed the Recall Petition, whether the signature was accepted or rejected, and the reasons why. These notions are computer memoranda subject to disclosure under Govt. Code section 6253.5.

The Committee points out that the Registrar’s opposition did not address Govt. Code section 6253.9’s requirement that any disclosable record in electronic form must be produced in electronic form. Moreover, the Registrar’s secrecy concerns are overstated. The court could easily issue a protective order to address this issue. Finally, the Registrar is obligated under Govt. Code section 6253.5(a) to disclose “all” memoranda” “indicating which registered voters have signed particular petitions.” The Committee needs this list to compare to the list of rejected duplicate signatures so that it can determine if at least one signature was accepted. Pet. Op. Br. at 6.

The court agrees that the Registrar’s notations constitute disclosable memoranda. Govt. Code section 6253.5 provides for the disclosure of

“recall petitions…and all memoranda prepared by the county elections officials in the examination of the petitions indicating which registered voters have signed particular petitions…shall not be open to inspection except by…the proponents of the petition and the representatives of the proponents…in order to determine which signatures were disqualified and the reasons therefor.” Govt. Code §6253.5 (emphasis added).

Thus, the Committee is entitled to review all memoranda prepared by Registrar staff in examining the Recall Petition, so long as the examination is for the purpose of determining which signatures were disqualified and the reasons therefor. The Committee explains that it needs the list of valid signatures to compare with eliminated duplicates to ensure that one of the duplicates was counted as valid. This is a legitimate purpose and within the scope of Govt. Code section 6253.5. The Registrar must provide a list of valid signatures.

The question becomes whether the Registrar must provide this list, and the other hard copy lists, in electronic form. Although the Committee relies on Govt. Code section 6253.5, that provision requires disclosure of public records in electronic form. Unless otherwise prohibited by law, any agency that has information constituting an identifiable public record not exempt from disclosure under the CPRA that is in an electronic format shall make that information available in an electronic format when requested by any person. Govt. Code §6253.9(a). The recall petition and memoranda that must be disclosed to the Committee are not public records. Govt. Code §6253.5(a). Only the Committee, not the public, may see them.

It is for this reason that the Registrar has required the Committee to review the hard copy lists only in the examination room. As the Registrar asserts, Elections Code section 17400(c) requires that the Registrar restrict access to the Recall Petition in accordance with Govt. Code section 6253.5. Opp. at 14. If the Registrar provides electronic copies to take outside of the examination room, that could make them public. Flores Decl., ¶30.

Because these lists now exist, the question is whether the Committee is entitled to them in electronic as well as physical format. It is obvious that electronic versions of the hard copies already provided would be immensely useful to the Committee and short the period in which it needs to review the petition signatures. While the court accepts the Registrar’s concerns about the use of an electronic copy outside the examination room, that concern could be addressed by an appropriate protective order limiting the use of electronic copies solely to the purpose of examining the rejected votes and only to be used in the examination room.

As for a list of valid signatures, the Registrar explained that it has not made an electronic list of all valid signatures because it would be three times bigger than all the rejected signatures combined, the file would be too big and risks degradation of the DIMS system. Flores Decl., ¶32; Opp. at 14. This is not an issue adequately addressed by the Committee and the court will not order the Registrar to run the risk of compromising its software for a preliminary injunction.

The Committee has demonstrated a probability of success on a claim that the Registrar must produce electronic copies of the existing lists subject to a strict protective order to be negotiated by the parties. The Committee also has shown that it is entitled to a hard copy list of valid signatures for the petition. At this stage, the Committee has not demonstrated a probability of success that the list of valid signatures must be produced in electronic form. The parties will be ordered to meet and confer on the protective order and whether a hard copy or electronic version of the valid signatures will be produced.

Request No. 4 seeks all training materials or user manuals for DIMS to interpret the data contained in the system.

The Committee argues that the Registrar’s Petition Signer Module uses numerous abbreviations, codes, dates, and other information that a person cannot decipher without prior knowledge. Thompson Decl., n. 1. The Registrar has declined to provide the Committee with DIMS training materials and user manuals, and Committee has had to rely on information from Registrar staff, which changes and is often inaccurate. Thompson Decl., ¶13.

The Registrar states that it had provided what it can without disclosing proprietary information of its vendor. Update, p. 5. The Registrar has provided DIMS training materials used by its staff and a list of abbreviations. Flores Decl., Exs. H-N. Other DIMS materials are unrelated to the Committee’s review and exempt from disclosure under Govt. Code section 6254(k) because they contain proprietary information of the Registrar’s vendor. Flores Decl., ¶33.

The Committee replies that it is unclear what information is being withheld. The Registrar has provided signature review training manuals, but no user manuals for DIMS. Reply Thompson Decl., ¶6. Contrary to paragraph 34 of the Flores declaration, the Committee’s lawyer was informed by Registrar staff that a data entry user manual exists and is used by the Voter Records Division. Id. Additionally, while the Registrar relies on its vendor’s proprietary information to withhold user manuals, it fails to make the necessary showing that the documents are trade secrets (maintained as secret and derive independent economic value from their secrecy).

The Registrar need not show that its vendors’ user manuals are trade secrets. It is sufficient that it has been informed by its vendor that any product-related information must be redacted pursuant to their contract. Flores Decl., ¶6. There is ambiguity about what exists and what has been provided, however.

The Committee has not demonstrated a probability of success on Request No. 4, but the parties will be ordered to meet and confer to discuss the completeness of disclosure.

The Committee seeks access for its representatives (1) to examine the Recall Petition five days per week; (2) with up to 25 representatives at one time; (3) using up to 25 computer workstations; and (4) using personal electronic devices during the review process.

The Committee notes that over 195,000 signatures were rejected by the Registrar and hit has been limited to 14 representatives three days a week working at 7 computer stations. The Committee has been able to review only 1200 rejected signatures per week and it will take over 20 months to complete the process at current rates. Thompson Decl., ¶15. Pet. Op. Br. at 17.

The Registrar’s opposition argues that it has been in the midst of handling the November election and has provided the access it could. Even the original levels of support it offered – 14 representatives on 7 workstations – are above the 10 representatives and 5 workstations that other petition proponents have been permitted. Flores Decl., ¶22. The Registrar questions why the Committee asks for these accommodations when it does not fully use the resources already allocated to it. Flores Decl., ¶¶ 22, 24, Ex. G. Although the Registrar allowed 14 representatives on 7 stations per day, the Committee often had only 5-7 representatives present. Flores Decl., ¶¶ 22, 24, Ex. G. The Registrar only reassigned its own staff from the Committee review because the Committee did not send more of its authorized representatives. Flores Decl., ¶24. Opp. at 18.

The Registrar’s update states that it agreed to permit 20 Committee representatives to use 10 workstations beginning November 15, 2022. Update, p. 2. Beginning December 8, 2022, the Committee can use 20 workstations and review files four days per week instead of three. Update, p. 2. The Registrar may expand access further in January if it can do so and if the Committee makes use of the accommodations granted to that point. Update, p. 2. The Registrar is willing to reduce oversight to some extent if the Committee also agrees to only use the workstations to access and review information relevant to the rejected signatures. Update, p. 2.

In reply, the Committee explains why it did not send more representatives previously -- there was no advantage in having two representatives per workstation. Reply Thompson Decl., ¶11. The Committee states that while the parties are close to an agreement on access, it remains concerned about the Registrar’s proposed parameters of 20 computers, four days a week with the possibility of expanded access in January. Moreover, while Registrar policy prohibits the public to use cell phones or take pictures during the examination process, the Committee requires the use of electronic devices for legitimate purposes of note taking, data entry, and internet searches. Reply Thompson Decl, ¶7. Reply at 10-11.

It is important to all concerned that the Committee’s review end on a timely basis. The accommodations made by the Registrar are a step forward but are insufficient. The Committee asks for 25 workstations and five days per week for review. Because 7 workstations could review 400 signatures per day, 25 workstations should allow review about 400 x 25/7=1,429 per day. At that pace, it would take 137 days to review all 196,000 rejected signatures. If the review began today at the Committee’s requested pace, it would end near the end of April 2023.

This estimate does not include those signatures already reviewed. Nor does it account for the increased efficiency accorded by the grant of some of the Requests. The court will not set specific access requirements at this time, but it expects the parties to work towards completion of the review by March 31, 2023. The parties are ordered to meet and confer regularly to accomplish this goal and may return to court on an ex parte basis if satisfactory progress is not being made.

The court also sees no reason why an accommodation of electronic devices may not be made with an appropriate protective order. For example, cell phones could be used for the legitimate purposes of note taking, data entry, and internet searches with the camera featured covered and an order that no pictures or videos be taken.

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

The Committee asserts that the public has the right to timely determine whether voters who signed the Recall Petition were disenfranchised, to challenge the Registrar’s finding of insufficiency, and to compel the recall election. Pt. Op. Br. at 19. Only the former does not assume that the Committee’s review will overturn the 46,807 invalided votes needed to qualify for a recall election. Thompson Decl., ¶5, Ex. 3.

The Registrar alleges that the balance of hardships favors the voters who signed the petition, the Registrar that safeguards that material, and the public interest in enforcing the laws concerning confidentiality and privacy of voter registration materials. Opp. at 19. These are not relevant harms. The Registrar has a statutory duty to allow a review of disqualified petition signatures and, now that the November election is over and certified, it points to no substantial harm.

The Committee has the right to timely determine if the Recall Petition merits a recall election. Wilcox, supra, 122 Cal. App. 3d at 651. Without a preliminary injunction, the Committee’s review is expected to take until May 2024. Thompson Decl., ¶15. That date is only six months before Gascón’s term ends, and therefore the long delay almost deprives the Recall Petition of its purpose. Thompson Decl., ¶15.

The application for a preliminary injunction is granted in part. The Registrar is ordered to allow the Committee to review prior signatures on file for voters whose signatures were denied because of a mismatch (Request No. 1).

The Registrar is not required to allow review of addresses and change of address notices for voters whose residence address on the Recall Petition did not match the voter’s registered address (Request No. 2).

The Registrar is required to produce electronic copies of the existing lists subject to a strict protective order to be negotiated by the parties, as well as a hard copy list of valid signatures for the petition. The parties will be ordered to meet and confer on the protective order and whether a hard copy or electronic version of the valid signatures will be produced (Request No. 3).

The Registrar is not required to produce additional training materials or user manuals for DIMS to interpret the data contained in the system (Request No. 4) but the parties are ordered to meet and confer on the completeness of disclosure.

Finally, the court will not set specific access requirements at this time, but it expects the parties to work towards completion of the review by March 31, 2023. The parties are ordered to meet and confer regularly to accomplish this goal and return to court on an ex parte basis if satisfactory progress is not being made. The Committee’s use of electronic devices in the examination room will be permitted pursuant to an appropriate protective order in which they may be used for the legitimate purposes of note taking, data entry, and internet searches with the camera featured covered and an order that no pictures or videos be taken.

The court must require a bond supporting the preliminary injunction.¿ The purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction.¿ CCP §529(a).¿ In setting the bond, the court must assume that the preliminary injunction was wrongly issued.¿ Abba Rubber Co. v. Seaquist, (1991) 235 Cal.App.3d 1, 15.¿ The attorney’s fees necessary to successfully procure a decision dissolving the injunction are damages that should be included in setting the bond.¿ Id., supra, 235 Cal.App.3d at 15-16.¿ The greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been wrongly issued, and that is a relevant factor for setting the bond.¿ Oiye v. Fox, (2012) 211 Cal.App.4th 1036, 1062.¿¿

The parties do not argue for a specific bond amount or provide evidence to calculate damages from an improvidently issued preliminary injunction.¿ The court will discuss the value of a bond at the hearing.

^{^[1]}The Registrar failed to lodge a courtesy copy of its opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in all future filings.

^{^[2]}The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction--one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

^{^[3]}However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

^{^[4]} The Registrar’s written objections to the Declaration of Marian M.J. Thompson are all overruled. Each objection was made to a portion of the declaration concerning the Committee’s success to date in reviewing disqualified signatures. This evidence is received not to prove the errors, but rather to show the Committee’s motive in seeking a thorough review. Evid. Code §1250.

^{^[5]} The Committee’s written objections to the Registrar’s evidence were all overruled. The Registrar can present evidence on what it believes the law requires it to do.