State Supreme Court Hears Arguments In Bianco Election Investigation Cases

All legal documents pertaining to this case obtained by The Riverside Record can be accessed here. All of The Riverside Record’s reporting about Sheriff Chad Bianco’s election investigation can be found here.

Following Monday morning’s California Supreme Court hearing, attorneys for the UCLA Voting Rights Project (VRP), California Attorney General Rob Bonta and Riverside County Sheriff Chad Bianco said they were looking forward to the court’s opinion.

“I don’t believe they’re going to make a political decision,” Bianco said when asked if he felt it would go his way. “I think it was obvious by their questions that they have questions, [and] they have concerns, but the the biggest one that I wish would have been more talked about directly is this is about corruption.”

Bianco has maintained that legal challenges to his investigation into alleged election irregularities, spurred by an audit conducted by a group of Riverside County residents using unofficial paper forms filled out by poll workers in what counsel for the ROV called a pilot program and first reported by The Riverside Record, were politically-motivated. It’s a message he reiterated on the steps of the courthouse, calling Bonta “corrupt.”

And while Bianco said he felt the court would rule in his favor, he also said he would comply if the court ordered him to return the ballots and other election materials to the Riverside County Registrar of Voters (ROV).

“This is a lawful investigation, and I did what [Judge Jay Kiel] allowed to happen,” he said. “If a judge tells me, and we’ve got the highest in California judges, if they direct me to do something, of course I’m going to do it, whether I’m happy with it or not. I mean that’s what I do.”

Bradley Hertz, who represented Bianco at the hearing, argued that local law enforcement officers have the right to confiscate ballots after obtaining a warrant in a case brought by the VRP on behalf of four Riverside County voters including Riverside City Councilmember and Assembly District 58 candidate Clarissa Cervantes and Indio Councilmember Oscar Ortiz.

Chad Dunn, attorney for the VRP, argued that both the ROV and the sheriff violated their ministerial duty to maintain custody of the ballots in the ROV’s office when a series of warrants were executed. 

“There was no reason to rent box trucks, load up 120 pallets of ballots, break their chain of custody, and move them into a back office of the sheriff’s station,” Dunn said. “If this court grants relief and orders those ballots returned, it could easily provide a window for the sheriff to go to the district attorney and seek a review by the grand jury, or ask the board of supervisors. If the time expires and these ballots are destroyed, there’s an election around the corner.”

Legal counsel for Bonta and Secretary of State Shirley Weber spoke in support of VRP’s request for the court to order Bianco to facilitate the return of election materials to the ROV. Both Bonta and Weber are up for reelection this November.

“The Secretary of State’s position is that the only outcome consistent with the Elections Code is [an order] that at least requires the return of voted ballots, which never should have been taken from the Registrar of Voters, to be sent back to the statutorily proper custodian,” Kevin Calia, counsel for Weber, said.

As part of his argument, Hertz said Elections Code provisions pertaining to the handling of ballots shouldn’t be applied in this case, because it was neither an active election contest nor a criminal prosecution, but rather a criminal investigation and would instead be subject to Penal Code, an interpretation of the law Associate Justice Goodwin H. Liu called, “bizarre.”

“You are walking into a very dense thicket of very specific laws that govern elections in particular, and I think it’s a very established canon of interpretation that the specific trumps the general, as a general rule,” he said. “And so I’m very curious how you suggest that the warrant provisions should somehow, you say harmonize, but I think you know I think you’re saying take precedence over whatever the Elections Code might prescribe here.”

Associate Justice Kelli M. Evans also said she did not follow Hertz’s argument that in some instances Elections Code would prevail, while Penal Code would take priority in others depending on the specific circumstances, despite the wording of the law.

“[Election Code] uses very specific language,” she said. “It says, ‘In no event shall the package or its contents,’ and those contents presumably include the ballots, which exist whether or not there is a contest or a criminal prosecution. So it says, ‘In no event shall the package or its contents be taken from the custody of the elections official.’”

Hertz, when asked whether the investigation would end if the election materials were to be returned to the ROV, said he didn’t think it would “necessarily terminate,” though he said it would raise additional concerns regarding the chain of custody.

The court also asked Hertz about a fabricated quote said to be from the Common Cause decision that was initially included in, and then retracted from, a brief filed in the case in support of Bianco. 

Hertz said the brief, filed before he joined the case, was the result of the use of artificial intelligence (AI) in the drafting process.

“That is what we’re all learning about AI,” he said. “It cannot be relied on, and lawyers have to look and make sure that what they’re saying is accurate.”

Dale K. Larson, attorney for ROV Art Tinoco, said the ROV’s office also agreed that all election materials should be returned to the office, which he said was prepared to do so immediately upon order of the court. He also said the ROV complied with the warrants consistent with state law and that Tinoco continued to welcome investigations of this kind as long as they complied with state law.

“The registrar, as I said at the beginning, welcomes any type of inquiry access so long as it’s done pursuant to state law,” Larson said. “It’s one reason the registrar didn’t want to run to court and say, ‘No, no, no, don’t look at these.’ The registrar was attempting to work out with state authorities: is there a way to do this consistent with state law, and there are procedures that could have done this, but were not followed in this case?”

Following the hearing, Dunn said in a press conference on the steps of the courthouse that he “couldn’t be more satisfied” with how it went. Xavier Becerra, Democratic gubernatorial candidate and senior advisor for VRP, thanked the legal team for its skilled work on the case.

“We hope that the Supreme Court of California will issue a swift decision, protecting the right to vote, protecting the ballots that are cast by our voters, so we can once again give our voters the confidence to know that when they go out and do their democratic duty, and cast their vote, it not only will be counted, it will be protected,” he said.

As the VRP press conference got underway, so did oral argument in the case brought by Bonta, in which his legal counsel argued that the attorney general, as the chief law officer of the state, has expansive authority, including supervisory authority over the state’s sheriffs.

“The legislature granted the attorney general express authority to, ‘direct the activities of any sheriff relative to the investigation or detection of crime,’ and almost a century of experience with that broad provision has shown us how it has been used in practice,” said Samuel T. Harbourt, attorney for the AG’s Office. “Administration after administration of attorneys general has generally adhered to a policy of deference to law enforcement decisions made at the local level. It has only been in truly exceptional circumstances that attorneys general have stepped in to issue a formal supervisory directive.”

The justices questioned Harbourt’s broad interpretation of the AG’s supervisory power, seeking clarification on whether there was a limit to that power, to which Harbourt effectively said there was not.

Hertz, in his response, argued however that there was a limit to the AG’s power, which allowed the office to assume the duties of a district attorney, but not a sheriff.

“There can be investigation, detection and punishment of crime,” he said. “The attorney general can be an adjunct, a supporter of criminal prosecutions, but cannot go in and just shut down an investigation.”

Hertz also argued that the term supervisory authority when referencing the AG’s power did not mean control over, which a number of justices questioned.

“We’ve just got to look [at] the plain language,” Associate Justice Joshua P. Groban said. “If you said to anyone on the street, ‘You started a new job, I’m your supervisor. I’m going to supervise you, but, funny thing, I can’t direct or control any of your actions.’ Nobody would think that’s what supervise means, so why should we think that here?”

Hertz likened his interpretation of the AG’s supervisory powers to that of an “elder statesman,” who advises local sheriffs, but does not have actual authority to intervene in the actions of a sheriff.

“The provision doesn’t say that it’s dotted line authority or persuasive authority,” Evans said in response. “It says that it’s direct supervision and authority.”

Following both hearings, Hertz, in an interview with The Record, said he was a little less certain of the outcome than his client.

“I’m hopeful, but I can’t say I’m confident, because the nature of the questioning was very challenging on my side,” said Hertz, whose fees are being paid by Bianco’s reelection campaign funds. “So we shall see what happens.”

Bonta, on the other hand, said he “couldn’t be happier” about how the hearing went.

“I think our arguments, as they should, landed very well, and we are looking forward to the justices issuing their final order and hopefully granting our requests,” he said, noting that his office would comply with the order regardless of the outcome. “We’re hopeful that they will.”

Bonta, when asked if he would pursue additional charges following the conclusion of the case, said his office would assess next steps in a “fair and objective way.”

“We will continue to do what we do: enforce the law, base it on the facts and the law, dispassionately blind justice, and make sure that we protect the integrity of our election system from any interference or attacks from him or anyone else,” he said.

According to the court’s website, a written opinion will be filed within 90 days of oral argument. That decision becomes final 30 days after filing, unless one of the parties petitions for a rehearing within 15 days of the filing or the court, on its own motion, grants a rehearing or modifies its decision.