Smith v. Pombo

CONLEY, P. J. William J. Smith and Ernest J. Pombo were the only candidates at an election held on Tuesday, February 2, 1965, for director of division 2 of the West Side Irrigation District in San Joaquin County, a rural area in the vicinity of Tracy. Only 59 votes were cast and 11 of the total were absentee ballots; on February 9, 1965, the final returns were canvassed and the board of directors determined that Pombo had received 32 votes as against Smith’s 27 votes and certified that Pombo was elected. On February 19, 1965, [713]Smith filed a statement of contest (Elec. Code, § 20021, subd. (d)) alleging that certain illegal votes were cast, and that if these votes were not allowed, Pombo’s total vote would be reduced below the number of legal votes for contestant Smith.

Smith served a list of alleged illegal votes on counsel for Pombo, as required by section 20052 of the Elections Code; this list contained nine absentee ballots and three regular ballots; Pombo thereupon served a similar list on Smith challenging three absentee ballots and one regular ballot. The trial judge decided from the testimony that contestant Smith was correct in his challenge of eight of the absentee ballots, which had been counted previously in favor of Pombo; consequently, 24 remaining legal votes favored Pombo; the judge also decided that three of the votes cast for Smith were properly challenged, and, thus, Smith then also had 24 ballots in his favor; there being a tie vote, the court directed that the West Side Irrigation District election board must determine who was elected director by lot, as provided by section 20501 of the Elections Code.

Neither side challenges the judge’s determination that certain specified ballots were illegal, or that each candidate received 24 ballots, so we are not concerned with those questions on this appeal. But appellant claims that when a tie vote results as here, the contest must be dismissed and the contestee declared elected, by reason of the provisions of section 20024 of the Elections Code, and that section 20501 of the code does not control.

The judge filed a memorandum opinion stating that a hearing had been held and the ballots counted and examined in open court; the findings declared that the result of the election was a tie vote and the judge concluded that pursuant to section 20501 of the Elections Code the election board of the West Side Irrigation District must designate the successful candidate by lot.

We are convinced that the trial judge correctly interpreted the present law relative to what should be done when a tie vote is found in a contest for an office such as is involved here. The error of the appellant consists in relying upon the wording of section 20024 of the Elections Code which is restricted to a consideration of whether an election must be set aside or annulled in its entirety as the result of a contest, with a special election to follow. The code section provides that, unless the contestant in the final analysis receives more