Judge Orders Oakland to Prove Hodge Should Be Kept Off Ballot

By J. Douglas Allen-Taylor
Tuesday March 25, 2008

Posted Tue., March 25—A Superior Court judge has ordered the City of Oakland and the Alameda County Registrar of Voters to put Oakland School Board member Greg Hodge on the June 3 ballot for the District 3 Oakland City Council race, or to show cause why he should be kept off. 

Judge Frank Roesch made the ruling today (Tuesday) following a brief conference in the hallway of the Superior Court at the Oakland Post Office on 13th Street with one of the judge’s clerks, Hodge, his attorney, and representatives of the Oakland City Attorney’s office, the Oakland City Clerk’s office, and the office of the Alameda County Counsel. A hearing on the matter has been set for Friday morning, with Roesch indicating that he will probably make a final ruling that day. 

A representative of the Alameda County Counsel’s office asked for a ruling by Friday in order to get the final lineup for the ballots to be sent to the printer on that date. 

Hodge is seeking to run against longtime District 3 incumbent Nancy Nadel for the council seat, which has the same West Oakland-downtown boundaries that Hodge represents on the Oakland school board. 

Hodge is challenging a ruling by the Oakland City Clerk’s office that he was one signature shy of the 50 required to qualify for the ballot. While the Oakland city attorney’s office is representing the Oakland city clerk’s office in the matter, representatives from the Alameda County Counsel’s office said they have no interest in the matter either way, but only want the issue decided to get the ballots to the printer on time. 

Hodge, an attorney, is being represented by Sean Welch of the Nielsen, Merksamer, Parrinello, Mueller & Naylor law firm of San Francisco and Mill Valley. 

Both Hodge and the City of Oakland are in general agreement on the facts of the dispute. Hodge was initially certified to be on the ballot on March 12 after a review of his petition by the Alameda County Registrar of Voters office. A day later, after Oakland housing activist James Vann of the Oakland Tenants Union and Oakland environmental and land use attorney Stuart Flashman came to the City Clerk’s office to challenge signatures on Hodge’s petition, Assistant City Clerk Marjo Keller reversed the certification and ruled that Hodge was one signature short. Keller says that she found no problem with the signatures that Vann and Flashman challenged but during a re-review of the petition discovered another signature that contained a “discrepancy.” 

Flashman and Nadel once served together on the East Bay Municipal Utilities District Board of Directors.  

Ironically, Flashman most recently made news as the attorney for the Oak To Ninth Referendum Committee, the group which filed a lawsuit to challenge the Oakland City Attorney’s decision to disallow the group’s petition for a referendum on the controversial development. 

Keller did not give information on which disqualifying signature ended up knocking Hodge off the ballot in either a March 19 letter to Hodge or in her declaration to the court. Hodge said the contested signature was of a longtime West Oakland resident and voter, and the house the man lives in has two addresses which he often uses interchangeably. But because state election law requires that the address on nominating petitions be the same as the address on the voter’s registration application, and because the man used one address for the registration application and the second address for Hodge’s nominating petition, the City Clerk ruled his signature invalid, dropping Hodge to one below the required 50. 

Assistant Oakland City Attorney Kathleen Salem-Boyd argued on Tuesday that Keller had no choice under state election law but to invalidate the petition, and that the assistant city clerk did not abuse her authority. 

Hodge’s attorney, Welch, argued that once Hodge’s petition was originally certified, the only recourse for a challenge by Vann and Flashman was for them to go to court, rather than to the city clerk. Welch said that Hodge’s rights were violated because the post-certification review was done outside of his presence.  

In addition, Welch is arguing that the Superior Court has the authority to judge that the man whose signature was contested is a legal voter and resident of District 3 and that his signature should be counted on Hodge’s petition.