APPEAL from a judgment of the Superior Court of San Diego County, Michael M. Anello, Judge. Affirmed. (Super. Ct. No. 37-2008-00088776-CU-WM-CTL).
The opinion of the court was delivered by: McDONALD, J.
CERTIFIED FOR PUBLICATION
In this action, Linda Poniktera alleged Deborah Seiler, acting in her official capacity as Registrar of Voters for the County of San Diego (Registrar), violated statutory and constitutional provisions by (1) having a written policy that improperly limited the ability of citizens to document election voting with cameras and other recording devices, and (2) not enacting or enforcing policies to secure election ballot boxes against tampering or to require poll workers to account for ballots. Poniktera's action sought declaratory and injunctive relief, as well as a writ of mandate, to require Registrar (1) to allow citizens to use cameras or other recording devices inside polling stations in future elections, and (2) to comply with obligations to secure ballot boxes against tampering in future elections.
After a hearing at which the trial court made numerous evidentiary rulings adverse to Poniktera, the trial court denied the requested relief. On appeal, Poniktera asserts the trial court abused its discretion in its evidentiary rulings and by denying her request for a writ of mandate and for declaratory and injunctive relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
Registrar is the chief elections official for the County of San Diego and was responsible for the state-wide elections held in San Diego County on February 5, and June 3, 2008. Poniktera is a registered voter in San Diego County and, during the 2008 elections, acted as a poll watcher to gather information about the governmental conduct of elections. As part of her efforts, she used photography at polling places.
B. The Challenged Governmental Conduct
Poniktera's attorney of record, Mr. Karan, attended a poll worker training session held prior to the 2008 elections and obtained a copy of the elections manual provided to poll workers to assist them in completing their Election Day assignments (Manual). Mr. Karan objected to one of the sections of the Manual relating to photography at the polling place and expressed those concerns to Registrar. The Manual stated: Photography and videotaping are not allowed by the public or voters during voting hours. However, if someone would like to photograph the seals on voting equipment prior to the opening of the polls or after the polls close they may be permitted to do so.
Mr. Floyd, a senior deputy with the San Diego County Counsel's Office who advises Registrar on legal matters and helps resolve issues with members of the public on election days, communicated with Karan (by both telephone and e-mail) prior to the 2008 elections concerning this policy. Floyd explained Registrar included that statement in the Manual because Registrar wished to ensure that both voters and poll workers have a positive experience on election day, and various constitutional and statutory provisions (including the provision of Elections Code*fn1 section 18541 that prohibits the taking of photographs of voters within 100 feet of a polling place with the intent to intimidate) were designed to ensure voters would feel secure in the secrecy of their ballots and be free from overt or tacit intimidation. Floyd explained the "intent to intimidate" element could place volunteer poll workers in the untenable position of having to perform complex constitutional analyses or of trying to discern a photographer's intent (while also trying to protect the secrecy and integrity of the vote and keeping the polls running securely and efficiently), and the statement in the Manual was not intended to preclude photography that did not interfere with poll workers or voters. Floyd gave his cellular telephone number to Karan and told him that, if he was attempting to take pictures as he described and a poll worker took exception, Karan could call Floyd directly and Floyd would speak with the poll worker to ensure Karan could take pictures without disrupting the election process or violating restrictions found in the Elections Code. Floyd offered to meet with Karan at the first polling place Karan intended to observe so that a protocol for these telephone calls could be established or, alternatively, Floyd offered to call ahead and prepare the poll workers so they would know Karan was going to take pictures and the circumstances under which photography would be allowed.
Poniktera alleged poll watchers are threatened with arrest for violating Registrar's written policy against using cameras and for trespassing at polling places. However, Poniktera did not aver she had been threatened with arrest, or even that she was denied the use of her camera.*fn2 Instead, the evidentiary basis for this claim is apparently based on Karan's experiences during the February 2008 election. Poniktera claimed Karan was threatened with arrest because he violated the written policy banning the use of cameras. However, Registrar's evidence was that on the morning of the February 2008 election, Karan called Floyd and complained that a precinct inspector was not allowing him to take photographs in the polling place and that the police had been called. Floyd immediately went to the polling place and found Karan talking on his cellular telephone on one part of the driveway in front of the residence while two police officers were standing on another part of the driveway and the poll workers were at their stations assisting voters. Floyd spoke with Karan and the officers, and then with the precinct inspector (Ms. Ritter), and learned Karan had attempted to debate his constitutional rights with Ritter (rather than calling Floyd to resolve any impasse), which was disrupting voters trying to enter to vote while Karan was lecturing Ritter on the law. Floyd told the poll workers and the officers that Mr. Karan would be allowed to photograph the documents he requested as long as it did not interfere with the voters. Thereafter, during a lull in the voting, Karan took pictures of the ballot box and log. Floyd again offered to meet Karan at any poll and/or call the poll workers to let them know he would be allowed to take photographs as he had at this precinct, but Karan declined the offer and left the polling place. No one threatened to arrest Karan, who obtained the pictures he sought.
Later that day, Karan visited a second polling station. He claimed that when he attempted to document the closing of the polling place, police were called and claimed he was trespassing, and that he avoided arrest by leaving the premises. However, Registrar's evidence showed Karan spent the afternoon and evening hours at this second polling station and, during his time there, interfered with the poll workers' ability to carry out their tasks by talking loudly on his cellular telephone, by questioning the workers while they were trying to carry out their duties, by sitting at a table reserved for provisional voters, and by standing inches away from poll workers while they were performing their duties. The poll workers called police because Karan was disrupting their efforts to finish their work prior to the 9:30 p.m. deadline. Police arrived and escorted Karan outside the polling station where they waited with him until the poll workers had finished closing the station. Karan then caravanned behind the poll workers when they went to the ballot drop-off location to deliver their materials.
The Ballot Security and Accounting Policies
Poniktera also challenged Registrar's policies and procedures for protecting the integrity of the ballot count. Poniktera submitted declarations stating some of the ballot boxes were delivered to Registrar's central counting facility without seals or identifying markings, submitted photographs of the allegedly mismarked boxes, and claimed Registrar refused to investigate. Poniktera also alleged Registrar's written policies relieved poll workers of the obligation to account for all of the ballots delivered to the polling station.
Registrar's evidence explained the steps taken during the 2008 election to ensure the accuracy of the balloting process. As a result of restrictions imposed on electronic voting devices by California's Secretary of State, Registrar implemented a new paper-based ballot system first used in the February 2008 election and employed again in the June 2008 election. Under that system, paper ballots were distributed to more than 1650 precincts to be used and then returned to the Registrar's office on election night for scanning at a central location. The quantity and sequence numbers of the ballots were listed on a chain of custody document and precinct inspectors were instructed to count all ballots they received and verify the quantity and sequence numbers in advance of election day. They were also instructed to contact the Registrar's office to confirm the information and advise staff if there were any discrepancies. After the polls closed, precinct inspectors were instructed to record the number of ballots issued on the ballot statement portion of the roster of voters, and to record the number of unused ballots, voted ballots, voted provisional ballots, and spoiled ballots (if any) on the roster of voters. The number of unused, voted (including provisionals), and spoiled ballots should equal the number of ballots issued. However, because this reconciliation is performed at the end of an extremely long day, it is not uncommon for the numbers to vary slightly.*fn3
After the reconciliation is complete to the best of their ability, the precinct inspectors are instructed to put the voted ballots in one carton and seal it. Unvoted ballots are to be placed in different cartons and also sealed. Two persons then accompany the ballots to a collection center where the ballots, along with other key items and supplies, are received by a sheriff reserve officer. Ballots returned to a collection center prior to about 9:30 p.m. are then collected by a Registrar troubleshooter, who returns them to the ballot tally center in the Registrar's office where the precinct number and other information is logged.
During the February 2008 election, when this ballot return method was used for the first time, all ballots were returned in brown cartons and one of the cartons was designated by a red label "Voted Ballots Inside" for delivering voted ballots. Because the method was new, poll workers were unfamiliar with the requirements and some made mistakes, including not properly sealing boxes or putting unvoted ballots in cartons designated for voted ballots. In all cases, however, ballots were delivered by two poll workers to collection centers and designated personnel returned the cartons safely to the Registrar's office.
Building on the experience obtained from the February 2008 election, Registrar emphasized the voted ballot return requirements in a variety of ways for the June 2008 election. For example, a white carton was designed for the return of voted ballots, and Registrar created a full color supply poster to provide a pictorial representation of all supplies to be returned in the various containers including the white boxes. Additionally, an outline was placed on the white carton to reinforce where the seal was to be placed, and a signature box was added to encourage compliance with the requirement for poll workers to sign the carton containing voted ballots. Also, receipt logs used at collection centers were redesigned and lighted clipboards were used to ensure collection center personnel could track the receipt of voted ballot cartons and other critical items. The increased emphasis on the return of supplies was reinforced in the Manual, during classroom training, and in the online training supplement many poll workers used in June. Additionally, a system for scanning a bar code on the white cartons as they arrived was perfected to help document and track the receipt of voted ballots.
As a result of these efforts and improvements, the return of the voted ballots in the appropriate white cartons was faster and more accurate, and the number of cartons returned without seals dropped dramatically although some workers used a white ...