Pleasanton mayoral candidate Julie Testa is going to court to compel City Clerk Karen Diaz to file Testa's candidate statement for the Nov. 8 sample election ballot that will be sent to voters Oct. 10.
Testa’s required nomination papers were accepted just before the filing deadline on Aug. 12. However, the electronic filing of her candidate’s statement for the Sample Ballot, which was emailed at 4:30 p.m. that day, was not accepted by the city clerk.
Diaz first turned away Testa from qualifying as a candidate at all because she did not file the required financial disclosure Form 700 "Statement of Economic Interests.” Diaz relented after Testa and her attorney Matt Morrison showed that they had filed Form 700 directly with the county Registrar’s office.
However, the candidate’s statement, a crucial part of information about candidates that is printed with the Sample Ballot, was not accepted via email, even though it was sent before the 5 p.m. deadline. The hard copy of the statement required by the clerk was filed after the deadline and not accepted.
“Diaz turning Testa away for the missing Form (700) cost valuable time when the candidate discovered her candidate statement had been left behind at (my) office when Testa visited there to electronically file the Form 700,” Morrison said. “Diaz refused to accept a copy of Testa's statement sent via email before the Aug. 12 deadline expired.”
"The law is clear," Morrison added. “There is nothing in the Political Reform Act that requires a Form 700 to be filed prior to a candidate's nomination papers.
After returning to the City Clerk's office, Testa said she had barely five minutes to submit her paperwork when the discovery was made that her printed candidate statement was missing.
Even though Morrison had emailed Diaz a copy of Testa's candidate statement well-ahead of the 5 p.m. Aug. 12 deadline, Diaz informed Testa that candidate statements are required to be printed out and that she was not permitted to print a copy of the email for filing, nor accept the email itself as Testa's candidate statement.
Morrison said the issue is one of substantial compliance.
"Filing practices of municipalities vary,” he said. “Where a candidate does not technically comply with local practice, a candidate who is in actual compliance with state law should be held to have complied."
In filing a petition for Writ of Mandate with the Alameda County Superior Court, Morrison pointed to the Elections Code for statements submitted in writing that, according to the code, "... includes any form of recorded message capable of comprehension by ordinary visual means."
Morrison argues that definition fits the email that Testa confirmed to Diaz was Testa's statement and Diaz acknowledged receiving prior to the deadline.
Diaz in a follow-up email to Testa insisted she had no discretion in the matter, and pointed to a court ruling on election deadlines that "hard and fast enforcement...was the most reliable way to ensure that everyone is treated fairly and equally."
"The City Clerk left us with no choice but to turn to the courts," said Morrison.
Testa, as required by California Rules of Court, has informed Pleasanton's City Clerk and the Alameda County Registrar of Voters her intention to seek an order to shorten time until when the court will conduct a hearing on her petition.
Testa hopes the matter can be heard quickly. If the court cannot decide until after the voter pamphlets have gone to press, then any decision on the merits of Testa's argument is moot.
If that happens, Morrison said, “The real losers would be Pleasanton voters who may never learn more about Testa as an alternative to Pleasanton's incumbent mayor, Jerry Thorne.”