Candidate Can Run, but Win Could be Subject to Challenge

By Jorge Casuso

Sept. 24 -- A photocopied document and one line in the City Charter could ultimately decide Oscar de la Torre's uncertain political future. But one thing seems certain, the School Board candidate will remain on the ballot and will assume office if he wins, pending a possible post-election court challenge, The Lookout has learned.

De la Torre -- whose hopes seemed dashed because County records showed he was not registered in the school district when he pulled nomination papers as required by State law -- has said that his "campaign is moving forward."

"If he prevails, then someone would have to bring an election contest," said Hal Melom, principal deputy county counsel. "There's nothing that a court can do now.

"It's a $6 million ballot. We're not going to reprint it," Melom said. "There is a time frame before the election that these matters have to be resolved, otherwise it has to happen after the election."

If his potential election to one of four open seats is challenged, De la Torre will likely need to either prove that he was registered at the time he pulled the papers or successfully argue that there's an apparent conflict between state law and the City Charter.

Late Monday afternoon, de la Torre submitted a document to the City Clerk "that purports to be a copy of a federal 'Voter Registration Application,'" according to City Clerk Maria Stewart.

"I note that it is dated July 16, 2002, one day before the issuance of Mr. De la Torre's nomination papers," Stewart wrote in a letter faxed Tuesday to Registrar-Recorder/County Clerk Conny B. McCormack and Election Services Division Manager Priscilla Smith.

"I also note that it is inconsistent on its face with the representations made on his state registration form dated August 5, 2002," Stewart wrote. "On that form, Mr. De la Torre stated that his 'last voter registration form' gave a Los Angeles address."

Stewart said the County Registrar does not have a copy of the document, which she said de la Torre told her he had signed "at a voter registration drive that someone the he knows had sponsored."

"It is a photocopy of an application," Stewart said. "It is a form we don't use. It's probably a federal form. The county is familiar with this type of application, but they don't have a copy of this."

Kristin Heffron, chief deputy for the Registrar, said her office is checking to see if it has a record of the application ever having been submitted.

"All I can do is take it downstairs to voter processing to see if it came in or if we have it in house," Heffron said. "This (the photocopied document) doesn't tell me that we have it. We need to see if there is any reason we should have this or not have this."

Heffron said that the form is not one of the registration applications that the Registrar makes readily available in libraries, post offices and countertops across LA County.

"It seems to be the type of generic form that's generally used by the federal government for voters who are registering and they don't know what state they are registering in," Heffron said. "This is definitely not an LA County application."

If the Registrar's office does not have the document, de la Torre's potential election could likely hinge on one sentence in the City Charter. It reads: "No person shall be eligible to hold office as a member of the Board of Education unless that person shall have been a qualified elector of the School District."

De la Torre's attorney, Fred Woocher, notes that -- unlike the California State Elections Code, which requires candidates to be registered voters in the district they are running in "at the time that nomination papers are issued" -- the charter makes no mention of when the candidate must be a "qualified elector."

And because the State Code allows for specified provisions such as the one in the City's charter, the local law would apply in de la Torre's case.

"I do not believe that the (State) election code provision even applies in this case," said Woocher, a Santa Monica attorney who has been practicing election law for 20 years. "The Santa Monica School Board elections are governed by the Santa Monica City Charter.

"The Santa Monica City Charter only requires them to be registered voters at the time of the election," Woocher said. "I think it's all a moot point."

Word of de la Torre's questionable registration status has been circulating among Santa Monica political circles since the issue was raised at the Democratic Club endorsement meeting August 28.

Two weeks ago, Democratic Club President Julie Lopez Dad asked the City Clerk's office to look into de la Torre's registration status, but "the clerk did nothing," she said.

Stewart said last Wednesday that although her office had received inquiries into the matter no formal complaint had been filed. "No one has challenged this," Stewart said, "I'm not going to start something. I remain neutral on the matter."

After receiving several queries last week -- including one from The Lookout -- Stewart said she "started to do the review myself." She then requested that the Registrar's office remove de la Torre from the ballot.

On Monday, Dad filed a "formal request." "If you require a formal complaint in order to proceed, please consider this a formal complaint," Dad wrote in a letter to Stewart.

The inquiries into De la Torre's registration status spurred plenty of finger pointing. The County Registrar said it was Stewart's duty to have checked de la Torre's status and that the clerk had ready access to the county rolls. Stewart countered that it was the Registrar's role to check the status before certifying the nomination papers.

Melom, the county deputy counsel, believes much of the responsibility falls on the candidates, who should known whether they are qualified for the office when they pull papers to run.

"It's like paying your taxes," Mellom said. "It's an honor system. You file under penalty of perjury. No one goes out to investigate."

Bradley Hertz, an election attorney for the LA firm Reed and Davidson, said that many cities have an unwritten understanding with the County Registrar as to whom will check the rolls. Sometimes both do. In any case, someone should have caught it, Hertz said.

"The same way you check the proper number of signatures and whether they are from registered voters, you'd think that the starting point is the candidate," said Hertz, who has specialized in election law for 13 years.

"But things fall through the cracks," he said. "When there's a division of labor, the signals get crossed on who does what."

Dad's initial inquiries would have come too late to remove de la Torre's name from the ballot, which went to the printers on Sept. 14, said Melom.

"As a practical matter, no one could be taken off after August 30," Melom said. "The ballot has to be configured. There is a time frame before the election that these matters have to be resolved. Otherwise, it has to happen after the election."

Previous stories:
"School Board Candidate on Ballot but Likely Out of Race," Sept. 24

"School Board Candidate Could Be Removed from Ballot," Sept. 23

"Plenty of Drama, Few Surprises as O'Connor, Arnold Get Dem Club Nod; School Board Incumbent Fails to Win Backing," August 30