Gooch v. Hendrix (5 Cal. 4th 266, 1993)

Opinion

LUCAS, C. J.

May an election be annulled on clear and convincing evidence of illegal voting when it appears the illegal votes affected the outcome of the election, but it cannot otherwise be determined precisely for whom the illegal votes were cast?

We conclude the controlling statute, Elections Code section 20024, authorizes the annulment of a contested election under such circumstances. Accordingly, we reverse the contrary judgment of the Court of Appeal.

I. Facts

A. The Election

On November 5, 1991, consolidated elections were held in Fresno County for school board positions in one high school and four elementary school districts. Two positions were open on the Washington Union High School District Board, three positions were open on the Orange Center Elementary School District Board, two positions were open on the Pacific Union Elementary School District Board, three positions were open on the West Fresno Elementary School District Board, and two positions were open on the West Park Elementary School District Board. The four elementary schools are “feeder schools” for Washington Union High School; voters in each elementary school district received a ballot allowing them to vote for candidates for openings on their respective elementary school district boards, as well as for the Washington Union High School District Board.

On November 19, 1991, the results of the elections were certified by the Fresno County Clerk as follows (the names of the winning candidates are capitalized):

Orange Center

Linda Andrews (short term) 103

Tim Sanders (full term position) 95

Sam Hearnes (full term position) 82

John Graham 65

Lilo Santellano 60

Gene Balthrop 56

Pacific Union

Lawrence Cato 358

Rosemary Garcia 316

Roland Lawrence 189

Delbert Cederquist 175

Tami Gandy 80

Toni Nagai 70

West Fresno

Hank Hendrix 306

Oscar Robinson 292

Tony Taylor 270

Charles Gooch 114

Nadine Otschkal 81

Nancy Jones 67 '

West Park

Steve Franklin 93

Carrie Schoals 79

Ernest Morales 69

Ed Randolph 57

Washington Union

Mel Sanders 1,015

Mary Bess 902

Frank Butterfield 744

Jim Coito 744

Lucky Archuleta 237

Grant Mitchell 209

B. The Absentee Voter Campaign

In July 1991, the Fresno Chapter of the Black American Political Association of California (BAPAC) launched its Voter Education Project (VEP). The project was described by Mel Sanders, president of the Fresno Chapter of BAPAC, in his October 1991 written report to the statewide annual BAPAC conference in Sacramento, as follows:

“This project has targeted 13 seats of several of the smaller school district boards that serve the southwest urban area of metropolitan Fresno. The central strategy in the election involves a highly selective process of both voter registration and absentee ballot applications. With some $10,000 in cash, equipment and materials, we are projecting a landslide in seven of the elections and comfortable wins in the others.”

Frank Revis, a BAPAC member, was appointed director of VEP. Revis recruited his family members, BAPAC members and their families, and other nonmembers of BAPAC, as volunteers for the project. Some VEP workers were also paid.

The trial court made the following findings of fact, among others, regarding the manner in which VEP’s voter registration and absentee ballot “strategies” were effectuated (numerical paragraph designations and references to trial exhibits have been omitted):

“A BAPAC solicitor would visit registered and unregistered voters’ residences to ask the resident to sign a registration affidavit and an absentee ballot application for the coming election. The prospective voter would be told that BAPAC would mail the executed documents to the Elections Clerk and, when the ballot was received from the Clerk by BAPAC, it would hand-deliver the ballot to the voter.

“Paragraph Three of the absentee ballot application form which called for the address to which the voter wants the ballot to be mailed by the Clerk, was with a few exceptions, never filled out by the voter. In some instances the paragraph was preaddressed and signed by the voter. In most instances, the application was left blank when the voter signed the application and [was] filled in by BAPAC later.

“The BAPAC solicitor would take the executed documents to BAPAC headquarters where a BAPAC address would be written on the application form as the address to which the voter wanted the ballot mailed. BAPAC would hand carry the registration and application forms to the Clerk.

“When BAPAC received the absentee ballots from the Clerk, it would identify from its records the school district in which the voter resided; it would notify Voter Education Project workers, the candidate and/or [the] candidate’s workers to pick up the ballot for delivery to the voter. Ballots were delivered to voters either by BAPAC members, volunteers, paid workers, or by the candidates themselves.

“If a voter was not home when delivery of the ballot was attempted, a notice was left at the door asking the voter to call a BAPAC telephone number listed on the notice so the ballot could be delivered to the voter as soon as possible.

“When a ballot was delivered, the voter was encouraged to vote in the presence of the solicitor. In some instances, the solicitor would offer to answer questions about the candidates or issues. After the voter punched the appropriate number opposite the candidate names, the voter would place the ballot in the envelope, seal, sign and date the envelope and hand it to the solicitor. The solicitor would then return the envelope containing the ballot to BAPAC headquarters where it would be mailed to the Clerk.

“Prior to the election, [VEP Director] Frank Revis and [BAPAC Fresno Chapter President] Mel Sanders met with Susan Anderson, the Fresno County Clerk, and Norma Logan, the head of the Elections Division of the Clerk’s Office. One purpose of the meeting was to be sure the applications for absentee ballots being distributed by BAPAC conformed to law. Revis revealed that BAPAC had already obtained a large number of absentee ballot applications—by his own estimate, approximately 800. A number of these applications were then examined by Anderson and Logan who raised concerns that someone other than the voter was completing the portion of the application specifying the address to which the ballot was to be sent (Paragraph 3). Revis’ attention was directed to Elections Code § 1006 which provides that the voter must ‘personally affix[]’ the address in Paragraph 3. BAPAC chose to ignore this warning and to follow its own ideas about permissible absentee ballot application and mailing procedures.

“During their meeting, Anderson and Logan sought some assurance from Revis that BAPAC was not a political organization and that the ballots would not come into the possession of any candidates. Revis assured them that candidates would not have access to ballots and that BAPAC was not sponsoring candidates.

“Subsequently, 1,292 completed [absentee ballot] applications were submitted in which paragraph 3 specified one of two BAPAC addresses, 2017 Tuolumne or 9584 South Chestnut. Anderson and Logan believed these applications did not comply with Elections Code § 1006 because the address in Paragraph 3 was not personally affixed by the voter. Anderson and Logan also suspected BAPAC was a political organization which should not receive absentee ballots under Elections Code § 1006.

“BAPAC was unable to secure the ballots at 2017 Tuolumne, where it shared space with another entity, and so Revis filed a request with the postmaster that all absentee ballots sent to 2017 Tuolumne [were] to be held for pickup by BAPAC. No hold arrangement was made with respect to 9854 S. Chestnut, though that address was a rural postal box, also incapable of holding and securing all the ballots. Eventually, all the absentee ballots sent to BAPAC addresses were delivered to 705 Mayer, the headquarters of the Voter Education Project [which was also Revis’ home address],

“Absentee ballots were provided Defendants Mel Sanders, Oscar Robinson, Linda Andrews, Tim Sanders, Samuel Heames, Mary Bess, Lawrence Cato, Tony Taylor, Steve Franklin, and Carrie Schoals directly by the Voter Education Project for delivery to voters. Lawrence Cato gave some ballots to Defendant Rosemary Garcia for delivery to voters.”

C. The Elections Contest

On December 19, 1991, respondents, unsuccessful candidates in the consolidated elections, filed suit to contest the election results pursuant to section 20021. The complaint alleged: (1) appellants had given or offered bribes to electors; (2) appellants had committed offenses against the elective franchise; and (3) illegal votes were cast sufficient to change the results of the elections.

Trial lasted five days, during which numerous witnesses testified and various documents were admitted into evidence. In addition to the findings of fact set forth above, the trial court made further findings concerning evidence of fraud and tampering, and other violations against the elective franchise, respecting ballots that were ultimately disqualified by clerk’s challenge. These included, among others:

That the testimony of one elector of the West Fresno/Washington Union School Districts established she had not signed the absentee ballot application, nor the envelope for the ballot, which had been sent to one of the BAPAC addresses and returned to the clerk with signatures purporting to be hers. Another elector of those districts testified through an interpreter that a person came to his home, urged him to “sign for the schools,” and further advised him it was all right for his daughter to sign the absentee ballot application for him. The clerk’s record established the ballot had been processed through BAP AC’s VEP.

That the testimony of an elector from the Orange Center/Washington Union School Districts established three people came to his home late one night, “told him for whom to vote,” and were emphatic that he not seal his ballot. They returned when only his wife was home and, discovering he had not signed the ballot, instructed her to sign her husband’s name for him. This ballot was shown to have been processed through BAPAC.

That testimony of an elector of the West Park/Washington Union School Districts established he never completed an application for an absentee ballot, but recalled someone coming to his door requesting he sign a petition for a free breakfast program. Election records showed an absentee ballot had thereafter been mailed, ostensibly on his behalf, to a BAPAC address.

That testimony of an elector of the West Fresno/Washington Union School Districts established candidate Mary Bess and Leroy Brown brought an absentee ballot to the elector’s home, and that Brown completed her ballot for her. The witness denied she had either consented to this procedure, instructed Brown to vote her ballot, or been consulted by Brown concerning the choices made on her ballot.

The trial court’s written findings further noted the testimony of the manager of a local copy shop. BAPAC representatives had requested his shop to reproduce a large number of what were purportedly sample ballots; he in turn informed them he could not print the document, suggesting they instead “contact the State of California.”

The trial court concluded BAPAC was in fact “an admitted political organization,” that through the auspices of the VEP it had assisted defendant-candidates in their campaigns by providing and distributing materials and furnishing access to information concerning voters, and that “[t]his assistance was not provided all candidates and would have been denied certain candidates even if requested. In this manner, BAPAC assisted in the election of defendants to non-political offices.”

In addition to the certified election results reported above {ante, at p. 270), the following statistical facts, among others, regarding the illegal absentee ballots that were counted, and those which were disqualified by clerk’s challenge, were established from official election records and other testimony and evidence adduced at trial:

The Fresno County Clerk Elections Department mailed a total of 1,292 absentee ballots to the BAPAC addresses. Of those, 269 were never returned to the elections department in any form, and BAPAC was unable to account with any degree of reliability for the disposition of those 269 nonreturned ballots.

Of the remaining 1,023 absentee ballots that were sent to BAPAC and returned to the elections department, 93 were disqualified by clerk’s challenge, 63 of those on the basis of invalid signatures. Based on the advice of county counsel and the office of the Secretary of State, the remaining 930 absentee ballots were removed from their envelopes and counted. As explained below, all 930 ballots were illegal. It is now impossible to distinguish these 930 illegal absentee ballots from the remaining valid ballots cast in the consolidated elections.

The percentages of illegal ballots cast in each of the school district contests (obtained by dividing the number of illegal-but-counted BAPAC ballots by the total number of ballots counted in each district) were as follows: Orange Center Elementary, 70/173 = 40 percent; Pacific Union Elementary, 310/632 = 49 percent; West Fresno Elementary, 369/509 = 72 percent; West Park Elementary, 76/176 = 43 percent; and Washington Union High School, 930/2224 = 42 percent.

The trial court determined there had been fraud and tampering with respect to the 93 ballots disqualified by clerk’s challenge. It further found the remaining 930 absentee ballots from BAPAC were cast in violation of sections 1006 (address to which ballot is to be mailed must be “personally affixed” by voter and may not be a political campaign headquarters) and 1013 (requiring absentee voter to personally mail or return ballot to official from whom it came or precinct board at any polling place), were therefore illegal, and could not be counted. It recognized it could not determine with certainty how the illegal ballots were cast, and thus could not deduct the illegal votes from the defendants to see who received a majority of lawful votes for each office. (§§ 20024, 20087.) But the court, “after careful consideration of the competing factors,” including “the wholesale violation of the mandatory requirements of the absentee voting laws in this case,” concluded the evidence showed the great majority of illegal-but-counted BAPAC ballots were voted for the defendants, and had been sufficient to affect the election of many of them. It annulled the consolidated elections pursuant to section 20086, and ordered new elections held forthwith, concluding “[ajnything less, under these facts, would result in a loss of public respect for and diminution of the integrity of the absentee ballot process” and would “tend to encourage even greater abuse of the process in future elections.”

The Court of Appeal found substantial evidence supported the trial court’s factual findings regarding the illegal ballots. It nonetheless concluded the results of the consolidated elections could not be set aside because it could not be determined for whom the illegal ballots were cast. The court focused on the command of section 20024, which states: “An election shall not be set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.”

The Court of Appeal reasoned, “Even assuming in these circumstances it could be calculated how many votes were cast on each illegal ballot, in what district they were cast and in what proportion they were cast, any attempt to apportion pro rata must still meet the test of section 20024. [ft] It would be futile for this court to remand for further findings. It is clear from the findings and the record before us it would be impossible to find, by clear and convincing evidence, that the illegal votes were cast for the contestees in this case, [ft] Indeed, it is obvious to this court it would be impossible in any multi-issue or multi-candidate primary or general election to determine the effect of illegal voting of the type and extent at issue here. Once illegal ballots are cast and commingled with the legal ballots, they cannot be traced to reveal for whom they were cast.”

The irony of this conclusion was not lost on the Court of Appeal, which concluded: “The violations of election laws pertaining to absentee balloting in this case were pervasive and significant, yet the very nature and extent of the illegal voting renders any remedy illusory. The court is constrained by the statutory limitation on the authority to annul and set aside the election based upon illegal votes.”

II. Discussion

A. Standard of Review

Strict rules embodied in the Elections Code govern a court’s review of a properly contested election. “ ‘It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal. [Citations.]’ ” (Wilks v. Mouton (1986) 42 Cal.3d 400, 404 [229 Cal.Rptr. 1, 722 P.2d 187], quoting Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430 [197 P. 74].) There is an express legislative policy requiring liberal construction of absentee ballot provisions in favor of the absentee voter. (§ 1001; Wilks v. Mouton, supra, 42 Cal.3d at p. 404.)

Of competing importance, however, is the principle that, “preservation of the integrity of the election process is far more important in the long run than the resolution of any one particular election.” (Fair v. Hernandez (1981) 116 Cal.App.3d 868, 881 [172 Cal.Rptr. 379].) To this end, we have observed that, “The policy in favor of upholding elections appears in the cases in conjunction with the rule that ‘[t]echnical errors or irregularities arising in carrying out directory provisions which do not affect the result will not [void] the election.’ (Davis v. County of Los Angeles [(1938)] 12 Cal.2d [412,] 426 [84 P.2d 1034] (italics added); Rideout v. City of Los Angeles, supra, 185 Cal. at p. 430; People v. Prewett [(1899)] 124 Cal. [7,] 10 [56 P. 619].) Both the policy and the rule manifest the fact that ‘[c]ourts are reluctant to defeat the fair expression of popular will in elections. . . .’ (Simpson v. City of Los Angeles [(1953)] 40 Cal.2d [271,] 277 [253 P.2d 464]); neither has been invoked to uphold an election in the face of illegalities which affected the result—a situation in which the will of the people may be thwarted by upholding an election.” (Canales v. City of Alviso (1970) 3 Cal.3d 118, 127 [89 Cal.Rptr. 601, 474 P.2d 417].)

“ ‘The scope of review in an election contest is not different from other cases. Where the evidence is in conflict, [the appellate court] will defer to the trial court where events at trial and demeanor of the witnesses play an important part in the decision.’ ” (Escalante v. City of Hermosa Beach (1987) 195 Cal.App.3d 1009, 1014 [241 Cal.Rptr. 199], quoting Fair v. Hernandez, supra, 116 Cal.App.3d at p. 874; see also Hardeman v. Thomas (1989) 208 Cal.App.3d 153,166 [256 Cal.Rptr. 158].) “The contestant has the burden of proving the defect in the election by clear and convincing evidence. (Smith v. Thomas (1898) 121 Cal. 533, 536 [54 P. 71]; Hawkins v. Sanguinetti (1950) 98 Cal.App.2d 278, 283 [220 P.2d 58]; Wilburn v. Wixson [(1974)] 37 Cal.App.3d [730,] 737 [112 Cal.Rptr. 620].)” (Wilks v. Mouton, supra, 42 Cal.3d at p. 404.) “[W]e must consider the evidence in the light most favorable to the prevailing party, giving such party the benefit of every reasonable inference, and resolving all conflicts in support of the judgment. [Citation.]” (Wilks v. Mouton, supra, 42 Cal.3d at p. 408, fn. 7.) And “[w]e are . . . bound by the trial court’s determination of the facts except to the extent that they are not supported by substantial evidence. (Wilburn v. Wixson, supra, 37 Cal.App.3d 730, 737; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 278, p. 289.)” (Wilks v. Mouton, supra, 42 Cal.3d at p. 404.)

B. Section 1013

Illegal votes are votes which have not been cast in the manner provided by law. (Bush v. Head (1908) 154 Cal. 277, 281-282 [97 P. 512].) Illegal votes include votes by persons receiving their absentee ballots in a manner that violates election laws governing absentee balloting. (Hardeman v. Thomas, supra, 208 Cal.App.3d 153, at p. 168.)

As noted above, the Court of Appeal concluded that substantial evidence supported the trial court’s finding that counting the 930 absentee ballots violated the mandatory provisions of section 1013. We agree. Section 1013 provides, in pertinent part:

“All absentee ballots cast. . . shall be voted on or before the day of the election. After marking the ballot, the absent voter shall either: (1) return the ballot by mail or in person to the official from whom it came or (2) return the ballot in person to any member of a precinct board at any polling place within the jurisdiction. However, an absent voter who, because of illness or other physical disability, is unable to return the ballot, may designate his or her spouse, child, parent, grandparent, grandchild, brother, or sister to return the ballot to the official from whom it came or to the precinct board at any polling place within the jurisdiction. [<[[]... [ >

Each of the aforesaid provisions of law was in full force and effect at the time of the consolidated elections herein concerned. Each constitutes an “offense against the elective franchise defined in Division 17” of the Elections Code, violations of which themselves can furnish independent statutory grounds for contesting and annulling the election, separate and apart from the effects of any illegal votes actually counted. (§ 20021, subd. (c); see Stebbins v. White (1987) 190 Cal.App.3d 769, 788-791 [235 Cal.Rptr. 656].)

The printing or duplication of simulated or sample ballots is strictly proscribed by statute, violations of which may be punishable as a misdemeanor. (§ 29414.)

Section 20086 states:

“The court shall continue in special session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within 10 days after the submission thereof, the court shall file its findings of fact and conclusions of law, and immediately thereafter shall pronounce judgment. . . either confirming or annulling and setting aside the election. The judgment shall be entered immediately thereafter.”

In Rideout v. City of Los Angeles, supra, 185 Cal. 426, this court stated, “[A] distinction has been developed between mandatory and directory provisions in election laws; a violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not render the election void if there is a substantial observance of the law and no showing that the result of the election has been changed or the rights of the voters injuriously affected by the deviation. [Citations.]" (185 Cal. at p. 430, italics added.)

Although the distinction between “mandatory” and “directory” provisions in the election laws remains an important one today, the above underscored passage cannot be read for the proposition that every violation of a mandatory provision in the Elections Code will “vitiate”—i.e., invalidate or annul—the results of a contested election. In Rideout we explained that, “If the act enjoined goes to the substance or necessarily affects the merits or results of the election, it is mandatory; otherwise directory. [Citations.]” (Rideout v. City of Los Angeles, supra, 185 Cal. at p. 431.) The modem Elections Code provisions, which postdate Rideout, in many instances explicitly state whether they are “mandatory” or “directory,” and set forth the legislatively intended effect of such characterization.

For example, section 1013, which prescribes the manner in which absentee ballots are to be returned to election officials, states: “The provisions of this section are mandatory, not directory, and no ballot shall be counted if it is not delivered in compliance with this section.” (Italics added.) Hence, a violation of this “mandatory” provision results in disqualification of the ballot. The court’s jurisdiction to confirm or annul the results of an election based upon one or more such violations is more broadly governed by sections 20021 (ante, at p. 273, fn. 3) (setting forth the statutory grounds for elections contests), 20086 (vesting the court with authority to pronounce judgment confirming or annulling an election), 20024 (authorizing the setting aside of an election where it appears illegal votes affected its outcome) and 20087 (authorizing the court to declare another person the winner of an election where it can be established such person has the highest number of legal votes).

The Legislature amended section 1013 in response to Wilks v. Mouton, supra, 42 Cal.3d 400, which had held that the provisions of section 1013 were directory, not mandatory. The Legislature specifically announced that its purpose in amending section 1013 was “to clarify potential ambiguity in Wilks v. Mouton, and to declare that its intent ‘is and always has been’ that section 1013 be given mandatory effect.” (Escalante v. City of Hermosa Beach, supra, 195 Cal.App.3d at p. 1020; Stats. 1987, ch. 22, § 1, pp. 59-60.)

Our interpretation of section 1013 is not governed by the holdings pertaining to that statute in Wilks v. Mouton, supra, 42 Cal.3d at pages 410-412, and Beatie v. Davila (1982) 132 Cal.App.3d 424, 429 [183 Cal.Rptr. 179]—viz., that third parties may mail or deliver completed absentee ballots to election officials on behalf of the absentee voter—because those cases construed section 1013 prior to its amendment in 1987. (See ante, at pp. 279-280, fn. 8.) Although the language of former section 1013 was susceptible of an interpretation that third parties could return completed absentee ballots to election officials on behalf of an absentee voter, the amended statutory language precludes any such construction now. (Cf. Stats. 1976, ch. 1275, § 18, with Stats. 1987, ch. 22, § 2.) If the current version of section 1013 were to be construed to permit any absentee voter to hand his or her completed ballot to any third party for mailing or delivery to election officials, then the language expressly authorizing ill or physically disabled absentee voters to enlist the assistance of certain specified close family members in returning their completed absentee ballots to the election officials would be rendered superfluous. Section 1013 in effect specifies the method that will best protect against any tampering with, or nondelivery of, the absentee ballot: the voter may either personally deliver or mail the ballot, or, in the case of “illness or other physical disability,” direct a close family member to return the completed ballot.

In light of our conclusion that there is substantial, uncontroverted evidence that illegal absentee ballot voting appears to have affected the results of these consolidated elections within the meaning of sections 20021, subdivision (d) and 20024, we need not and do not determine whether the trial court’s findings of fact and conclusions of law, and its judgment annulling and setting aside the consolidated elections, agreed with contestants’ further claim, pleaded in the complaint, that evidence of “other offense[s] against the elective franchise” (§ 20021, subd. (c)) furnished a separate and independent basis for annulling the election results. (See ante, at pp. 274-275, and fn. 4.)

KENNARD, J., Dissenting.

In this case, plaintiffs, unsuccessful candidates for school board positions in five school districts in Fresno County, seek to set aside the election of their opponents on the ground that “illegal votes were cast.” (Elec. Code, § 20021, subd. (d).) A large number of illegal votes were cast in the elections for each of the five school districts, and, if all of those votes were cast for the successful candidates, the outcome of each of the elections would be affected. But the evidence plaintiffs introduced in support of their challenge to the election does not show for whom the illegal ballots were cast. The majority nonetheless concludes that the election should be set aside.

I disagree. In my view, the law permits an election to be set aside because of illegal votes only if the person challenging the election can show that a large enough number of illegal votes were cast for the winning candidate(s) so that, if the illegal votes for both the winning and the losing candidates were set aside and the remaining votes were tabulated, the outcome of the election would be different. Here, plaintiffs have not made such a showing, and the majority’s conclusion that the election should be invalidated because of illegal votes is therefore erroneous. But, as I shall explain, plaintiffs may be entitled to prevail on the ground that the successful candidates engaged in “offense(s) against the elective franchise.” (§ 20021, subd. (c).) I would direct the Court of Appeal to remand the matter to the trial court with directions to determine whether such a violation occurred.

I

Insofar as I can determine from the skimpy record furnished to this court, the relevant facts are these: In November 1991, elections were held in Fresno County for positions on the boards of one high school and four elementary school districts. Either two or three positions were vacant on each of the various boards, so voters were entitled to vote for more than one candidate. The losing candidates (plaintiffs) challenged the results of the election.

Plaintiffs’ challenge was directed primarily to the activities of the Voter Education Project (YEP), an organization created by the Fresno Chapter of the Black American Political Association of California (BAPAC). Although BAPAC did not endorse candidates in the elections, four of the winning candidates were BAPAC members, and the referee found that BAPAC had “assisted” the winning candidates by “providing and distributing materials and access to information concerning voters.”

Before the election, YEP workers visited potential voters in their homes and urged them to sign registration affidavits and to apply for absentee ballots. The YEP workers encouraged these potential voters to agree to have their ballots hand-delivered to them by BAPAC; in most cases, YEP workers filled in BAPAC’s address as the place to which the ballots were to be mailed.

The absentee ballots that were mailed to BAPAC were then brought to voters’ homes by YEP workers, BAPAC members, and candidates in the school board elections. The voters were encouraged to vote in the presence of the persons who had delivered the ballots; in some cases, those persons gave information regarding candidates or issues. After voting, the voters placed their ballots in envelopes, signed and dated the envelopes, and gave them to the persons who had hand-delivered the ballots. These persons then took the ballots to BAPAC headquarters, from which they were mailed to the Fresno County Elections Department.

As the majority explains, the manner in which the VEP workers provided the ballots to the voters and the mode of casting the ballots violated the absentee voting requirements of sections 1006 and 1013. Under those statutes, BAPAC’s address should not have been used as the place to which the absentee ballots were sent, and voters who chose to return their absentee ballots by mail should have personally mailed the ballots instead of giving them to the persons who brought the ballots to their homes. (Maj. opn., ante, pp. 279-281.) As a result, the ballots so cast were illegal, and should not have been counted.

BAPAC mailed 1,023 absentee ballots to the county elections department. Of these, 93 ballots were disqualified. The elections department removed the remaining 930 from their envelopes, commingled them with the other ballots cast in the election, and counted them. As a result, 930 illegal ballots were tabulated in the high school district election, and smaller numbers of illegal ballots were tabulated in the elections for the elementary school districts.

II

Before considering whether, and on what basis, plaintiffs’ challenge to the school board elections should be upheld, it is important to distinguish an election challenge brought on the ground of “illegal votes” under section 20021, subdivision (d) (hereafter section 20021(d)), from a challenge under section 20021, subdivision (c) (hereafter section 20021(c)), brought on the ground that the challenged candidate has committed an offense against the elective franchise.

An “illegal” vote is simply a ballot cast in violation of the procedures established by the Elections Code. A ballot may be illegally cast even though the voter, or the persons assisting the voter, did not intend to subvert the elections process. Thus a well-meaning voter may cast an illegal vote through ignorance or inadvertence rather than a conscious attempt to circumvent elections laws or to give any candidate an unfair advantage. Assume, for example, that a major civic organization such as the League of Women Voters, in a well-intended but misguided attempt to increase voter turnout, agreed to mail in the absentee ballots of a number of voters. The ballots mailed in this fashion would be “illegal,” even though neither the League of Women Voters nor the voters themselves intended to undermine the electoral process.

If a trial court finds that the number of illegal votes cast for a winning candidate is so great that, when those votes are subtracted from the candidate’s total, that candidate no longer has a plurality of the votes legally cast, the court must not only set aside the election (§ 20024), but it must also declare as the winner the candidate who received the plurality of the legally cast votes. (§ 20087.) In that situation, the result will be the election of a candidate who did not enjoy the support of a plurality of the people who cast ballots, because some of the persons voting for the candidate who received the most votes did not cast their votes in the statutorily approved manner.

Because a successful election challenge based on illegal votes may thus lead to the election of a candidate receiving a minority of the votes cast (but a plurality of the legally cast ballots), the Legislature has stated that absentee ballot provisions “shall be liberally construed in favor of the absent voter” (§ 1001) and this court has said that “[ejven mandatory provisions [of the election laws] must be liberally construed to avoid thwarting the fair expression of popular will.” (Wilks v. Mouton (1986) 42 Cal.3d 400, 404 [229 Cal.Rptr. 1, 722 P.2d 187].) To prevail, a contestant must show a defect in the election by “clear and convincing evidence.” (Ibid.; see also Smith v. Thomas (1898) 121 Cal. 533, 536 [54 P. 71].)

When, by contrast, a challenge is based on offenses against the elective franchise under section 20021(c), the issue for the trial court is not whether individual votes were improperly cast; rather, the issue is whether the prevailing candidate has committed any one of a number of criminal acts proscribed by the Elections Code.

Here, plaintiffs’ challenge to the election was twofold: illegally cast votes under section 20021(d), and the candidates’ commission of offenses against the elective franchise under section 20021(c). Because the trial court ordered a new election on the ground that illegal votes were cast, it did not resolve plaintiffs’ challenge under section 20021(c). The majority upholds the trial court’s ruling. I do not agree, as I shall explain.

III

A challenge to an election based on illegally cast votes must satisfy the evidentiary burden imposed by section 20024. That statute provides: “An election shall not be set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.”

In other words, under section 20024 an election challenge on the basis of illegal votes may be sustained only if the challenger shows “not only that illegal votes were sufficient in number to account for the result but also that illegal votes were cast in such a manner as in fact to determine the result.” (Canales v. City of Alviso (1970) 3 Cal.3d 118, 126 [89 Cal.Rptr. 601, 474 P.2d 417], italics added.) The trial court may not simply assume that all illegal votes were cast for the prevailing candidate; rather, the challenging party must present evidence showing how the illegal votes were cast.

In this case, plaintiffs presented virtually no evidence of how the 930 illegal ballots BAP AC submitted to the county elections department were cast. According to the trial court’s findings of fact, two voters testified that the VEP worker who brought them their absentee ballots assisted them in voting; their ballots, however, were among the ninety-three ballots that were disqualified by the county elections department and not counted. One voter testified that the VEP workers told him for whom to vote; his vote was counted by the elections department. Two other persons testified that they had not voted, although the records of the elections department showed that ballots had been submitted on their behalf. The elections department disqualified both of these ballots. The trial court’s findings of fact contain no other evidence of the manner in which individual voters cast their ballots.

Plaintiffs could have called as witnesses each of the persons who had submitted illegal ballots, or, more realistically, a representative sample of those persons, and asked them how they voted. Alternatively, plaintiffs could have used other circumstantial evidence to show for whom the individuals cast their illegal votes. (See Canales v. City of Alviso, supra, 3 Cal.3d at pp. 127-128.) Because plaintiffs did not do so, they failed to discharge their burden, imposed by section 20024, of showing that the number of illegal votes actually cast for the prevailing candidate was so great that the outcome of the election was altered.

Plaintiffs’ failure to satisfy the statutory burden can be readily shown by an examination of the election in one school district. In the Pacific Union School District, for example, two seats were contested. Elected were Lawrence Cato and Rosemary Garcia, who defeated Roland Lawrence, Delbert Cederquist, Tami Gandy, and Toni Nagai. The totals were: Cato— 358; Garcia—316; Lawrence—189; Cederquist—175; Gandy—80; Nagai— 70. There were 310 illegal ballots. Because Cato’s margin of victory over his nearest unsuccessful challenger (Lawrence) was 169 votes, plaintiffs had to show that 169 more illegal votes were cast for Cato than were cast for Lawrence to overturn Cato’s election under section 20024.

Because voters could vote for more than one candidate, ballots could be cast in four different ways: (1) voters could vote for neither Cato nor Lawrence, (2) they could vote for both of them, (3) they could vote for Cato but not Lawrence, and (4) they could vote for Lawrence but not Cato. Illegal votes in categories (1) and (2) would not affect the outcome of the election, because they would not alter Cato’s margin of victory; illegal votes in category (3) would, if deducted from Cato’s total, reduce his margin of victory, while illegal votes in category (4) would, if deducted from Lawrence’s total, increase Cato’s margin. Because the margin of victory was 169 votes, Cato’s election would be affected only if plaintiffs could show that of the 310 illegally cast ballots, there were 169 more of them in category (3) than there were in category (4).

Plaintiffs offered no evidence showing how many of the illegal votes fell into each of the four categories I just described. Consequently, it is impossible to determine from the evidence presented whether Cato’s election was affected by the illegally cast votes.

The trial court recognized the problem in its findings of fact and conclusions of law: “This court cannot determine with certainty how the illegal ballots were cast. Thus, it cannot deduct the illegal votes directly from a defendant to see if he or she received a majority of the lawful votes for the office. (§§ 20024, 20087.)” The court nevertheless concluded that, because of the “wholesale violation of the mandatory requirements of the absentee voting laws in this case,” there should be a remedy to prevent “a loss of public respect for and diminution of the integrity of the absentee ballot process” and to deter “greater abuse of the process in future elections.” Because the trial court was convinced that the illegal votes cast were sufficient to affect the election of “many” of the defendants, it invalidated the election of all of the candidates in each of the five school districts.

Although the trial court’s concern to achieve a “just” result is understandable, it was not entitled to disregard the mandate of section 20024. As discussed earlier, that statute permits the court to set aside an election because of illegal votes only if the plaintiff has shown that enough illegal votes were cast for the winning candidate that, if the illegal votes for both the winning and losing candidates were set aside and the remaining votes were counted, the election’s outcome would be affected. The trial court’s finding that “many” of the elections were affected does not support its conclusion that the election of all the candidates should be set aside. Once the court found that the evidence was insuff