Digital voter records are completely separate from the equipment used to tally votes, so allegations in a lawsuit that conflate the two are unfounded, lawyers for the county of Orange and the state argue in a response recently filed in court.
Earlier this month, lawyers representing the state and the county filed their response to a lawsuit alleging that the digital voter records, which are connected to the internet, are a part of the voting system and thus in violation of California law. The lawyers argued the lawsuit has no grounds and asked an Orange County Superior Court judge to dismiss it.
Three registered Republican voters in Orange County — Michelle Morgan, Raul Ortiz and Stefan Bean — filed the lawsuit in March against OC Registrar of Voters Bob Page, the OC Board of Supervisors, Secretary of State Shirley Weber and Gov. Gavin Newsom, alleging that the California Voter’s Choice Act goes against the state election code.
Passed by the California Legislature in 2016, the law opened up the ability for counties to allow voters to cast a ballot at any vote center within their county, versus assigning people to a specific polling place based on where they live.
Orange County was an early adopter and made the change to vote centers in 2020.
The core of the lawsuit’s argument is that electronic poll books, accessible to every vote center in real time to verify voter eligibility and whether someone has already voted, are connected to the internet. The lawsuit alleges this violates a state election code that says “no part of the voting system shall be connected to the internet at any time” and “no part of the voting system shall electronically receive or transmit election data through an exterior communication network” or “receive or transmit wireless communications or wireless data transfers.”
While the issue at hand is with a state law, the complaint is directed at supervisors because they elected to adopt and implement the law in Orange County and Page given that he is responsible for conducting elections in the county.
Page — in a 2023 presentation to the Board of Supervisors about how the vote centers work and their security — said poll books are connected to the internet and need to be so they can communicate securely with each other and ensure only one ballot is counted per person. But ballot marking devices, ballot scanners and ballot printers are not connected to the internet, in the field, at vote centers or at the registrar’s office, he said.
No conflict exists between the VCA and the state’s election code, the county said. The plaintiffs are misreading the state election code, “conflating a ‘voting system’ with an ‘electronic poll book,’” the county said in its response to the lawsuit, asking the judge to dismiss the case.
Similarly, the state said that the complaint “fails to allege sufficient facts” to prove the plaintiffs’ point.
Electronic poll books are not a part of the voting system and are actually forbidden from connecting to it, the state said, contrary to what’s alleged in the lawsuit.
Deborah Pauly, an attorney with the Lex Rex Institute, a nonprofit focused on constitutional advocacy that filed the complaint, said Lex Rex will be opposing both the state’s and county’s responses.
“We are on very solid legal footing concerning the statutory conflicts between mandatory portions of California Elections Code and portions of the Voter’s Choice Act, the implementation of which is wholly discretionary,” she said.
Bean, who recently was named Orange County’s superintendent of schools, said he was introduced to the litigation through “acquaintances who expressed concerns about election law compliance and who were involved with the Lex Rex Institute.”
Upon a closer examination of the lawsuit, Bean said he requested to have his name withdrawn.
“I am an educator and not a politician, and with the benefit of hindsight, it’s clear that my involvement in election-related litigation could be perceived as distracting from my primary mission of advocating for and enhancing the educational experiences of students,” Bean said. “Focusing on the needs of students and families far outweighs any political considerations for me.”
Bean said he’s awaiting the judge’s decision to dismiss him from the case.
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