COMMON CAUSE OF CALIFORNIA, et al., Plaintiffs and Respondents, v. BOARD OF SUPERVISORS OF the COUNTY OF LOS ANGELES, et al., Defendants and Appellants.
Defendants Board of Supervisors of the County of Los Angeles (Board or County), Charles Weissburd, in his official capacity as the Registrar-Recorder of Los Angeles County (Registrar Weissburd), and Frank F. Zolin, in his official capacity as the Executive Officer and County Clerk (collectively defendants) appeal from the August 11, 1986, order granting a mandatory preliminary injunction against them and in favor of plaintiffs Common Cause of California, Southwest Voter Registration Education Project, Southern Christian Leadership Conference of Greater Los Angeles and Mark Ridley-Thomas (collectively plaintiffs).
By statutes of 1976, the Legislature added sections 302 and 304 to the Elections Code 1 to encourage the maximization of voter registration. Section 304 reads in part: “It is the intent of the Legislature that voter registration be maintained at the highest possible level.” (Emphasis added.)
Section 302, subdivision (a) reads: “It is the intent of the Legislature that the election board of each county, in order to promote and encourage voter registrations, shall establish a sufficient number of registration places throughout the county, and outside the county courthouse, for the convenience of persons desiring to register, to the end that registration may be maintained at a high level.”
Section 302, subdivision (b) provides: “It is also the intent of the Legislature that county clerks, in order to promote and encourage voter registrations, shall enlist the support and cooperation of interested citizens and organizations, and shall deputize as registrars qualified citizens in such a way as to reach most effectively every resident of the county․”
Section 302, subdivision (e) provides that “[i]n furtherance of the purposes of this section, the governing board of any county, city, city and county, district, or other public agency, may authorize and assign any of its officers or employees to become deputy registrars of voters and to register qualified citizens on any premises and facilities owned or controlled by such public agencies during the regular working hours of such officers or employees; ․”
Section 302, subdivision (f) provides that “[i]t is the intent of the Legislature that no limitation be imposed on the number of persons appointed to act as deputy registrars of voters.”
In this case, we must decide whether the trial court properly interpreted and applied sections 302 and 304 and accompanying administrative regulations (Cal.Admin.Code, tit. 2, §§ 20000–20005) 2 and whether the trial court abused its discretion in granting plaintiffs' motion for a preliminary injunction. Put another way, we must decide whether the facts presented to the trial court warrant the issuance of a mandatory preliminary injunction prior to a full trial on the merits.
On December 17, 1985, the Board considered a written motion submitted by Supervisor Edmund Edelman to “instruct the Chief Administrative Office and the Registrar-Recorder to work with all departments whose employees have daily contact with the public—including the DPSS, Health Services, Public Library, Assessor, Community and Senior Citizen Services, Consumer Affairs, County Clerk/Executive officer and Municipal Courts—to develop a voter registration program as described above, and report back with an implementation plan in 60 days.”
In the preamble to his motion, Supervisor Edelman explained the reasoning behind his motion and his proposed voter registration program thusly:
“Non-voting in the United States is a serious phenomenon that ultimately threatens the democratic system․
“Many citizens do not exercise their right to vote because they are unaware of registration requirements, or do not know how to obtain voter registration forms. The problem is particularly acute among low-income and minority citizens, but is manifested as well among all classes of citizens.
“California's Election Code mandates Counties to design and implement outreach programs which identify and target eligible citizens who remain unregistered, and in so doing ‘shall provide for the solicitation of assistance from local offices of all levels of government and of private entities in providing the incidental use of their premises and/or personnel for the purpose of outreach,’ and shall ‘stress the solicitation of voter registration by persons whose daily activities place them in frequent contact with potential registrants.’ (California Administrative Code, Sections 20000, 20001, 20002.)
“In Los Angeles County, Department of Public Social Services offices, Health Services clinics, Public Libraries, Assessor's Offices, neighborhood service centers, Consumer Affairs Offices, County Clerk's offices, and Traffic Courts are among offices that would meet the above description. In their daily course of business, and with minimal training, County employees at these offices could ask persons they serve whether they are registered to vote. If not, a voter registration card could be provided. The completed registration card could be returned to the County office for daily return to the Registrar, or could be mailed by the individual.”
By a 3–2 vote, the Board approved a substitute motion to refer the matter to the County's chief administrative officer and registrar-recorder “for further study.” No time limit within which the study had to be completed was set. Nothing in the record indicates that such a study was conducted.
In response to the Board's inaction, plaintiffs, on May 29, 1986, filed an action for declaratory and injunctive relief. Through this litigation plaintiffs hope to compel defendants to comply with the relevant Elections Code and Administrative Code sections by having defendants adopt a voter outreach registration plan wherein county employees who have frequent daily contact with eligible but unregistered voters discharge nonpartisan registration services.
Also on May 29, 1986, plaintiffs filed the notice of motion for preliminary injunction which formed the impetus for this appeal. At the hearing on plaintiffs' motion which was held on July 24, 1986, the trial court granted the motion stating:
“I am satisfied that the statutory scheme requires affirmative action to be taken by county government once it is demonstrated that there is, in this case, a substantial underregistered class.
“The evidence is sufficient for me to conclude on that issue the plaintiffs are likely to prevail at trial. The County notwithstanding the broad gambit of its affirmative registration program is not doing all that the statutory scheme requires and all that it can do, so that utilization of county employees and county agencies as deputy registrars of voters is something that the legislature has indicated is appropriate.
“There is a substantial number in this class of underregistered voters. The evidence presented at this proceeding by the plaintiff[s' in their petition] is sufficient to cause the court to conclude that if there are deputy registrars who are county employees at the county facilities and offices, substantial increase in the number of registered voters who are part of the class will result.
“The balance of harm clearly is in petitioner's [sic ] favor on this. County cannot describe or define harm in terms of costs of time or money from employees in any substantial way or in any persuasive way on the one hand, so we are left to speculate as to what those costs would be.
“On the other hand, we know that there will be numbers of voters registered who would not be registered with such a program put into place.”
The trial court's July 24, 1986, minute order states: “The Court finds reasonable likelihood that Plaintiffs will prevail on the merits. Balance of harm is in Plaintiff's [sic ] favor.”
In its August 11, 1986, order the trial court granted plaintiffs' motion for a preliminary injunction and ordered defendants to “adopt and implement voter registration programs that will comply with the mandate of California Elections Code §§ 302 and 304 (and accompanying administrative regulations)” within 30 days. In pertinent part, that order states:
“(a) The County Registrar shall identify, deputize and train appropriate County public employees, except emergency medical, crisis, fire, and law enforcement personnel, who have regular contact in the performance of their daily duties with those subgroups of the community, including non-whites and low-income persons, who have lower rates of voter registration than the white and high-income subgroups of the community. Nothing in this Order shall be construed to prevent the County from deputizing public employees for the purpose of offering registration assistance to individuals or members of subgroups not otherwise identified by this Order.
“(b) Those County employees who are deputized pursuant to this injunction shall discharge their duties as Deputy Registrars by engaging in a brief dialogue with their clients, along the following lines:
“(i) ‘Are you registered to vote?’;
“(ii) ‘If you would like to register, I can provide you with a voter registration card’;
“(iii) ‘Please fill out and sign the card, and I will forward it to the County Registrar, or you can mail it in yourself’;
“(iv) ‘The decision to register or not to register is yours. It will not affect your receipt of County services in any way.’
“(c) Those County employees who are deputized pursuant to this injunction shall not engage in any partisan political activity in discharging their duty as Deputy Registrars.”
This appeal followed.
When determining whether to issue a preliminary injunction, a trial court must evaluate two interrelated factors. First, it must decide whether there is a reasonable likelihood that plaintiff will prevail on the merits. Second, it must balance the interim harm that plaintiff is likely to sustain if the injunction is not issued with the interim harm that defendant is likely to suffer if the injunction is granted. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, 219 Cal.Rptr. 467, 707 P.2d 840; Robbins v. Superior Court (1985) 38 Cal.3d 199, 206, 211 Cal.Rptr. 398, 695 P.2d 695.)
A preliminary injunction is properly granted only if there is a reasonable probability that plaintiff will ultimately prevail at trial and if plaintiff is likely to suffer greater harm if the preliminary injunction is denied than defendant is likely to suffer if it is granted. If plaintiff fails to establish either or both of these factors, the application for preliminary injunction will be denied. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 286, 219 Cal.Rptr. 467, 707 P.2d 840; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889.)
A ruling on an application for a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy. It merely represents the trial court's discretionary decision, after balancing the respective duties of the parties, that defendant should or should not be restrained from exercising a right which he claims. The exercise of this discretion, even when there is conflicting evidence, will not be disturbed on appeal unless an abuse thereof has been demonstrated. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 286, 219 Cal.Rptr. 467, 707 P.2d 840.) With respect to factual determinations made by the trial court, the substantial evidence rule governs appellate review. The facts must be interpreted in the light most favorable to the prevailing party and all reasonable inferences in support of the trial court's order must be indulged. (Bennett v. Lew (1984) 151 Cal.App.3d 1177, 1182, 199 Cal.Rptr. 241; Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 247, 167 Cal.Rptr. 610; see generally Weingand v. Atlantic Sav. & Loan Assn. (1970) 1 Cal.3d 806, 820, 83 Cal.Rptr. 650, 464 P.2d 106.)
In the present case, the trial court found that plaintiffs are reasonably likely to prevail on the merits at trial and that the balance of harm is in their favor. We shall conclude that these findings are substantially supported by the evidence and that, therefore, the trial court did not abuse its discretion in issuing the mandatory preliminary injunction.
We begin our analysis by deciding whether in this case the trial court properly interpreted and applied the applicable provisions of this state's election laws and administrative regulations promulgated pursuant thereto when it ordered defendants to implement a nonpartisan county employee voter outreach program.
As we have seen, it is the express intent of our Legislature that “voter registration be maintained at the highest possible level.” (§ 304.) In order to “promote and encourage voter registrations,” the Legislature has stated its intent that county clerks “shall deputize as registrars qualified citizens in such a way as to reach most effectively every resident of the county.” (§ 302, subd. (b).) In addition, “the governing board of any county, city, city and county, district, or other public agency, may authorize and assign any of its officers or employees to become deputy registrars of voters and to register qualified citizens on any premises and facilities owned or controlled by such public agencies during the regular working hours of such officers or employees; ․” (§ 302, subd. (e).)
Section 304 mandates that the Secretary of State “adopt regulations requiring each county to design and implement programs intended to identify qualified electors who are not registered voters, and to register such persons to vote.” That section further requires the Secretary of State to “adopt regulations prescribing minimum requirements for such programs.”
Pursuant to section 304, regulations regarding county voter registration programs were promulgated. (Admin.Code, § 20000–20005.) Administrative Code section 20000 provides: “All counties shall design and implement programs intended to identify qualified electors who are not registered voters, and to register such persons to vote, hereinafter referred to as outreach programs.”
Section 20001, subdivision (f) of the Administrative Code provides that each county voter outreach program “shall provide for the solicitation of assistance from local offices of all levels of government and of private entities in providing the incidental use of their premises and/or personnel for the purpose of outreach. The offices and entities whose assistance is solicited shall include those which, in the opinion of the county clerk, come into frequent contact with unregistered electors who would be least likely to reister [sic ] under county registration practices in effect prior to July 1, 1976.”
Section 20002 of the Administrative Code mandates that “[e]ach outreach program shall stress the solicitation of voter registrations by persons whose daily activities place them in frequent contact with potential registrants.”
While section 302, subdivision (e) itself does not mandate the deputization of county employees as voter registrars, this particular subdivision cannot be viewed in a vacuum. Section 302, subdivision (b) does mandate that county clerks deputize qualified citizens as registrars “in such a way as to reach most effectively every resident of the county.”
The comprehensive legislative scheme of sections 302 and 304 envisions and requires active encouragement and solicitation of voter registrations by county branches of government who are charged with the ultimate responsibility for maximizing the size of the electorate in this state. (See § 302.) In accordance with this scheme, the regulations require counties to take affirmative and positive steps to ensure that the Legislature's goal of maintaining voter registration at its “highest possible level” is attained.
Toward this end, counties must implement voter outreach programs that identify eligible but unregistered voters and register them. (Admin.Code, § 20000.) In addition, voter outreach programs “shall” provide for soliciting the use of government premises and personnel for voter outreach, particularly those offices and entities who have frequent contact with eligible voters who are not registered (Admin.Code, § 20001, subd. (f)) and “shall stress the solicitation of voter registrations by persons whose daily activities place them in frequent contact with potential registrants.” (Admin.Code, § 20002.) Lastly, voter outreach programs “shall provide for the continued use of deputy registrars when a population of unregistered electors requires personal assistance in registration and the continued use of deputy registrars is therefore reasonably appropriate.” (Admin.Code, § 20002.)
The Legislature has mandated that the “introduction of registration by mail shall not in any way lead to administrative limitations on the use of deputy registrars of voters for the purpose of assisting in the registration of persons who may continue to require such assistance” but recognizes that “as the electorate becomes more conversant with mail registration procedures, the number of deputy registrars will naturally diminish due to a decrease in the demand for the services of such deputy registrars of voters.” (§ 303.)
When all of the components of this legislative scheme and regulations developed to implement it are analyzed, it becomes clear that if the legislative goal of maintaining voter registration at its “highest possible level” cannot be reached without deputizing appropriate county employees as nonpartisan voter registrars to solicit voter registrations from the substantial unregistered electorate, such action, as that ordered by the trial court, is what must be done.
We conclude that the trial court properly interpreted sections 302 and 304 and the accompanying administrative regulations to require county governments to take an active approach when evidence demonstrates, as it does in this case, that an identifiable group of citizens are substantially underregistered to vote. As we shall explain below, the County failed to comply with these laws. Accordingly, we further conclude that the trial court properly applied them when it granted a preliminary injunction ordering defendants to implement a nonpartisan county employee voter outreach registration program targeted to register low income and non-white electors.
The trial court's decision to issue a mandatory preliminary injunction rested in part on its finding that poor and non-white citizens in Los Angeles County are disproportionately underregistered to vote. On appeal, defendants do not challenge this finding which is clearly supported by the evidence.3 They maintain, however, that they did not violate sections 302 and 304 or the pertinent administrative regulations and that plaintiffs are, therefore, unlikely to prevail on the merits at trial.
The trial court found that the County had not done all that it could do to maximize the number of registered voters, particularly low income and non-white voters, in Los Angeles County. This finding, as well as the finding that the use of county employees as deputy registrars will significantly increase the number of registered voters who are poor and non-white, is amply supported by the record.
In support of their motion for a preliminary injunction, plaintiffs submitted, among other things, the deposition of Registrar Weissburd which was taken on June 9, 1986, after commencement of this litigation. Registrar Weissburd is officially responsible for voter registration in Los Angeles County and for carrying out those provisions of the Elections Code and regulations promulgated pursuant thereto that are pertinent to his responsibilities. In his deposition, he testified that, since he became the county registrar in 1984, he never conducted any inquiry to determine the causes of low registration and that he saw no need to do so. He later changed his testimony stating there was such a need but that he did not have the means or resources to conduct such an investigation. This latter conclusion was based on the fact that funding for a door-to-door outreach program was denied by the state in 1977. Registrar Weissburd admitted, however, that neither he nor anyone else he knew of ever made an effort to obtain funding to determine the causes of lower registration.
Registrar Weissburd also testified that he never conducted an investigation to determine if educational, economic, racial, ethnic, and cultural factors contributed to nonregistration. He further explained that his office does not monitor the progress of the County's voter outreach program by charting the percentage of registered voters in different parts of Los Angeles County or the correlation between registration and income and/or racial or ethnic makeup. Registrar Weissburd stated that there are no comparative studies as to who is registering to vote and that he does not know what areas have the highest rate of registration. He noted that such data would be “interesting” but that it would not help his office focus its registration activities because his office is “very limited” in what it can do. He never made it a priority to determine what groups are underregistered in the electorate.
At the Board's hearing on December 17, 1985, Supervisor Edelman asked Registrar Weissburd what he had done, other than placing registration cards and signs in county offices, to implement Administrative Code section 20002's directive that “solicitation of voter registrations by persons whose daily activities place them in frequent contact with potential registrants” shall be stressed in each voter outreach program. The latter responded that “[t]he extent of our program has been to place these registration forms in the lobby or reception areas” of county offices. To this response, Supervisor Edelman voiced his belief that the County could do a better job and was not complying with the mandate of Administrative Code section 20002.
Common sense dictates that in order to “identify” eligible but unregistered electors, defendants at the very minimum must determine the causes of low registration and determine what groups are underrepresented in the electorate. Defendants have failed to do so and, hence, have failed to comply with the legislative directive that voter registration be maximized and maintained at that “highest possible level.” Moreover, they have failed to carry out their own voter registration program.
The Los Angeles County Program for Voter Outreach (Program) which was adopted and approved in 1976 recognizes that “there are significant differences in the percentages of eligible voters registered in different areas of the County.” The Program recognizes three clearly defined registration areas and notes that “[a] combination of economic, educational and cultural factors” are believed to account for low registration levels in the “central city, southern and eastern areas.” The County further stated its intent that the Program was “to concentrate its efforts on low registration areas” and noted that in reaching voters “[p]ersonal contact with prospective voters will be preferred where possible to impersonal means of distribution of the forms.”
Most unfortunate in this case, however, is the fact that once the problem of low registration among low income and non-white citizens was brought to the Board's attention by the motion and the testimony given at its hearing of December 17, 1985, the Board undertook no good faith efforts to ameliorate the problem.
In their opening brief on appeal, defendants make a statement unsupported by reference to the record that after the Board hearing held on December 17, 1985, but before this litigation commenced, Registrar Weissburd “who is responsible for operating the Outreach Program exercised his discretion and decided the problems associated with the use of County personnel outweighed the potential increase in registration which conceivably could result from implementing” Supervisor Edelman's suggestion regarding the use of county employees as deputy registrars. By his own testimony, however, Registrar Weissburd stated unequivocally that he never studied the feasibility of a county employee program. Moreover, the record clearly demonstrates that the Board, despite its agreement to do so never studied or analyzed the feasibility of using county employees as deputy registrars or asked Registrar Weissburd or anyone else to conduct such a study, nor did it determine whether its failure to do so contravened the duties imposed on it by the election laws and applicable administrative regulations.
At his deposition, Registrar Weissburd testified unequivocally that neither the Board nor its staff ever requested him to study the feasibility of deputizing as voter registrars county employees who, as part of their daily responsibilities, have contact with the general public. He testified further that he never independently looked into the issue or the financial and administrative burdens, if any, that would be involved in implementing such a program.
That the Board never carried out its decision, which it adopted at the December 17, 1985, hearing, “to refer Supervisor Edelman's motion to the Chief Administrative Officer and Registrar-Recorder for further study” is also supported by the declaration of Barbara Facher (Facher) which was submitted in support of plaintiffs' motion for a preliminary injunction and received into evidence without objection.
Facher, the California Field Director of the Human Services Employees Registration and Voter Education (SERVE) campaign, a national, nonpartisan voter registration and education organization, testified before the Board on December 17, 1985, in favor of Supervisor Edelman's motion to establish a voter registration program in county agencies. In her declaration, she stated that on February 3, 1986, she spoke with one of Supervisor Edelman's aides and inquired whether county officials had initiated a study of the proposal or whether one would be undertaken. That aide telephoned her on March 3, 1986, and reported that he had been informed by Sara Berman, the administrative deputy within the chief administrative office, whose job responsibilities include following up on the Board's orders, that “ ‘nothing is happening’ because there is ‘not enough support on the Board for going ahead with a study.’ ”
Facher further declared that on March 5, 1986, she spoke with Registrar Weissburd. When she inquired whether he had been contacted by the chief administrative officer regarding the study, he replied “ ‘I haven't heard anything.’ ”
Steven J. Rosenstone, Ph.D., a Professor in the Department of Political Science at Yale University in New Haven, Connecticut, whose “fields of professional specialization are American electoral behavior, voter turnout, the impact of election laws on registration and voter participation, and the statistical analysis of electoral data” was asked to examine the potential effectiveness of the County's Program in identifying unregistered electors and to comment on the proposal to deputize county employees to solicit voter registrations from the public.
In his declaration submitted in support of plaintiffs' motion for preliminary injunction, he opined that the program which “primarily involves the placement of voter registration forms in various locations throughout the County” does not sufficiently reach underregistered groups and persons. Noting that voter registration procedures pose obstacles, Dr. Rosenstone noted that “the easier it is for a citizen to register and, most importantly, the less the burden for ensuring eligibility rests on the citizen himself, the more registration and voter turnout statistics will increase.” He further opined that the registration-by-mail programs currently implemented in California and 20 other states involve barriers for the individual registrant but that such programs “if accompanied by affirmative outreach efforts, can be an effective means of diminishing the pool of eligible but unregistered voters.”
Dr. Rosenstone noted that his research “has shown that the relative ease or difficulty of registration processes will have the most significant impact on those eligible voters who are less educated, of lower-income, Black, and Hispanic. And in California, as in the country as a whole, it is these groups which are disproportionately represented among the unregistered.”
Based on his research, Dr. Rosenstone concluded “that the mechanisms proposed in the Los Angeles County Resolution, involving affirmative outreach by public employees who have extensive and continuous contact with large numbers of potential registrants, would be an effective means of targeting the unregistered and registering them to vote. If implemented, such a system would significantly reduce the obstacles to the electoral process for many individuals who, because of lack of information, experience, and/or opportunity, have remained outside the electoral arena.”
Richard Cloward, a Professor at Columbia University of Social Work, Raymond Wolfinger, a Professor of Political Science at the University of California at Berkeley, and Walter Dean Burnham, a Professor of Political Science at Massachusetts Institute of Technology, who have conducted research and written publications on the effect of registration on voter participation similarly opined in their declarations submitted in support of plaintiffs' motion for a preliminary injunction that the requirement of voter registration is the principle obstacle in attaining a high level of voter participation.
Professor Cloward recognized that there is a school of thought that believes apathy is the root of the problem, but stated that relevant data demonstrates that registration procedures are the real culprit. He further noted that “[w]henever administrative barriers are relaxed, turnout rises” and that studies demonstrate that people vote once they register even those who are poor or minority. This data, according to Professor Cloward “cast[s] grave doubt on motivational explanations of non-voting.”
With respect to postcard registration, Professor Cloward noted that “registration by postcard is easier in principle than in practice” and that “[e]lection officials in postcard registration states have not been willing or successful at conducting targeted outreach, by identifying the unregistered, and making voter registration services widely accessible to them; nor, for example, do they mail cards out routinely so they can be filled out and returned.” He further stated that based on information that voting levels are notably higher in Michigan and Ohio 4 where employees routinely solicit voter registration from the unregistered electorate it follows “that if postcard registration forms and outreach were generally provided in government offices—such as welfare, unemployment, and motor vehicle offices—rates of registration and voting would rise sharply. In sum, registration by postcard is an important reform, but only when election officials take the additional steps of identifying eligible but unregistered voters, and making the forms and information widely available to the public.”
According to Professor Wolfinger “American voter registration procedures are a greater impediment for some groups in the population than for others. This finding applies to registration more than it does to actual voting—the relative ease or difficulty of registration processes will have the most significant impact on those citizens who are less educated.” Professor Wolfinger expressed his belief that easing the impediments of voter registration will significantly increase the number of persons participating in the electoral process. Further, he stated: “The institutionalization of voter registration services in agencies which serve the public will reasonably serve to minimize the effect of registration deadlines on turnout, by making registration available on an on-going basis, and increasing the likelihood that when election day approaches, eligible voters are already registered.”
In his declaration, Professor Burnham stated that by lessening the burdens imposed by voter registration the number of citizens who do register will increase. He noted that California's Elections Code recognizes the negative impact of registration requirements and attempts to ameliorate them by mandating the adoption and implementation of programs toward that end. He also described this case as one involving the “county's continuing unwillingness to implement the ameliorative mandate of the California Elections Code.”
When the information shared by these distinguished scholars is considered together with the rest of the evidence, it is apparent, as the trial court found, that defendants failed to fulfill their registration responsibilities. The evidence leaves no doubt that as to poor and non-white citizens the registration methods currently employed by the County do not meet the requirements of the relevant Elections Code and Administrative Code sections and fail to promote and encourage participation by these individuals in the electoral process. Moreover, the use of county employees as part of an affirmative nonpartisan outreach program to solicit voter registrations will increase the number of registered voters among the present underregistered class of eligible voters.
The Board's failure to take steps to attempt to eliminate the problem of underregistration by low income and non-white electors once that problem was brought to its attention is most unfortunate. In this regard, Professor Cloward aptly noted in his declaration: “[I]n regard to the most fundamental of democratic rights, government still resists assuming the affirmative obligation to do all in its power to expand public participation. One is thus left with the suspicion that the debate over the causes of low voting ․ masks a deeper question of whether election officials, and the political parties which control election procedures, are in fact as committed to the principle of full democratic participation in American society as they claim to be.”
We conclude that the trial court's finding that there is a reasonable likelihood that plaintiffs will prevail on the merits at trial is overwhelmingly supported by the evidence.
The trial court's finding that the balance of harm is in plaintiffs' favor, too, is substantially supported by the record.
In California, proper registration is a statutory prerequisite to the exercise of the right of franchise. (Collier v. Menzel (1985) 176 Cal.App.3d 24, 30, 221 Cal.Rptr. 110; § 100.) As we have already noted, under sections 302 and 304 and the accompanying regulations, the ultimate responsibility for ensuring that voter registration is maintained at its highest possible level in Los Angeles County rests with defendants. Their documented failure to maximize the size of the electorate in direct contravention of these laws also irreparably harms a vital cornerstone of our democratic form of government, the electoral process itself. Our nation's highest court has aptly noted that in our free and democratic society, the right of suffrage is a fundamental entitlement which is “preservative of other basic civil and political rights, ․” (Reynolds v. Sims (1964) 377 U.S. 533, 561–562, 84 S.Ct. 1362, 1381–1382, 12 L.Ed.2d 506.) “The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” (Id., at p. 555, 84 S.Ct. at p. 1378.)
In light of the evidence demonstrating that affirmative use of county employees as nonpartisan voter registrars would in fact substantially increase the number of registered low income and non-white voters, further irreparable harm to the electorate of Los Angeles County can easily be prevented pending a full trial on the merits without harm or with only the most minimal harm to defendants collectively or individually by the adoption and implementation of a county employee voter outreach program.
The harm defendants claimed they would suffer if the preliminary injunction was granted was speculative at best since it was not buttressed by any foundational evidentiary support. Defendants complain that they “could not come up with actual verifiable facts and figures to demonstrate the extent of their or their clients injury if a mandatory injunction were to issue” because they had less than two weeks to prepare their opposition to plaintiffs' motion for preliminary injunction. Since defendants did not request a continuance in order to more thoroughly prepare their opposition they may not now for the first time on appeal be heard to complain of the purported short time they had to prepare this opposition.
Moreover, in his deposition testimony, Registrar Weissburd admitted that he was aware that Contra Costa and Alameda Counties had in operation the type of county employee outreach program plaintiffs sought to have implemented in Los Angeles. At no time, however, did he speak to, or inquire of, officials in either of those counties or direct anyone in his office to do so. The Board was also informed of the Contra Costa and Alameda County programs at the December 15, 1985, hearing. Had the Board in fact initiated a study of the feasibility of a county employee voter registration outreach program as it had agreed to do at its December hearing, defendants could have had available to them pertinent information which could possibly have substantiated their unsupported claim of harm. Additionally, information regarding the county employee registration programs adopted in Contra Costa and Alameda Counties 5 was included in plaintiffs' moving papers as was information pertaining to the great success of similar programs undertaken by state agencies in Ohio and Michigan.6
Inasmuch as defendants themselves never attempted to determine the feasibility of using county employees as voter registrars, it is not surprising that defendants' own counsel at the hearing on plaintiffs' motion for preliminary injunction stated: “I think it is quite impossible at this stage to indicate what the nature—the exact nature of the injury or harm would be to government, to the County of Los Angeles.” He did not mention, however, that someone from his office had conducted an inquiry about the Alameda County employee outreach program and had learned that it was running smoothly.7
In opposition to plaintiffs' motion for preliminary injunction, defendants submitted the declarations of Gary W. Wells and Chloe Dausey, respectively, from the Department of Health Services and the Department of Public Social Services. These individuals forecasted various adverse impacts that would result if employees in their respective departments were required to solicit voter registration from the public with whom they had contact. The failing of these forecasts, however, is that they are speculative, unsupported by any data whatsoever, and cannot, therefore, successfully support defendants' assertion of harm.
In the absence of a feasibility study and a good faith effort to formulate a workable program that would minimize or eliminate adverse impacts disclosed by the study, the defendants could not demonstrate harm. This inability clearly resulted from their total lack of consideration of and apparent indifference to the problem of low registration among the poor and non-whites.
Amicus Curiae Washington Legal Foundation's contention that the preliminary injunction violates the separation of powers doctrine suggests a lack of appreciation of a long line of decisional law commencing with Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 2 L.Ed. 60.
It has been stated that a mandatory preliminary injunction which alters the status quo pending trial is rarely granted and is subject to a stricter review on appeal. (Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 839, 39 Cal.Rptr. 791.) Such a statement, standing by itself, is of no aid in deciding any particular case. (See opn. of Wright, C.J. writing for the majority concerning the supposedly “disfavored” cause of action for malicious prosecution in Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53, 118 Cal.Rptr. 184, 529 P.2d 608.) Extraordinary circumstances may, however, justify the issuance of a mandatory preliminary injunction which alters the status quo pending trial. The situation presented in this case, involving the underregistration of a substantial number of the electorate in contravention of the policy long enunciated in the relevant Elections Code sections, is such a circumstance. (6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 293, pp. 251–252.) The record on appeal more than substantially supports the trial court's findings that there is a reasonable likelihood that plaintiffs will prevail in their quest for permanent injunctive relief and that plaintiffs are likely to suffer greater harm from the denial of the preliminary injunction than defendants are likely to suffer from its issuance. Since plaintiffs established the two elements necessary for the issuance of a preliminary injunction, we conclude that the trial court did not abuse its discretion in granting plaintiffs' motion for preliminary injunction.
The order of August 11, 1986, is affirmed. Defendants are ordered to bear the costs of this appeal.
1. All statutory references herein are to the Elections Code.
2. Title 2 of the California Administrative Code will hereafter be referred to simply as the Administrative Code.
3. In the absence of a challenge to this finding, the evidence supporting it need not be detailed.
4. In 1985, Richard F. Celest, the Governor of Ohio issued Executive Order 84–33 which is entitled “Voter Registration in State Agencies” and directs “all State agencies and their respective employees to offer nonpartisan voter registration at all times to their employees, clients, and the general public, and to provide this service at no cost to the people of Ohio.”In an affidavit submitted in support of plaintiffs' motion for preliminary injunction, Sherrod Brown, the Secretary of State of Ohio stated that agency-based voter registration is not burdensome and is an “effective and efficient way to increase voter registration.” Secretary of State Brown explained: “It adds very little time to the agency employees' work ․ [and] it does get people registered. The large numbers of registrations by deputy registrars of motor vehicles argues for the increased effectiveness of the requirement that they ‘shall offer to register’ rather than merely having forms available without offering them to people. Agency-based registration is particularly effective in reaching and registering people who would otherwise not be registered. Government agencies serve groups of citizens who otherwise are unlikely to be reached by civic groups and offices that have traditionally conducted registration drives.”In 1975, at the request of Secretary of State Richard H. Austin, the Legislature of Michigan enacted the Secretary of State Branch Office Voter Registration program which affords “Michigan electors the opportunity to apply for and update voter registrations wherever drivers licenses are issued.”According to Christopher M. Thomas, State Director of Elections for the State of Michigan the branch office program which requires state civil service employees to register voters as part of their normal responsibilities has successfully received 6.1 million applications in 10 years. No complaints of partisan political activities by employees have been encountered. Implementation of the program required minimal internal training since the form is filled out by the applicant and time studies reflected that the tasks of taking voter registration applications was minimal. Branch employees simply have the responsibility to ask every person who approaches the counter whether they wish to make a voter registration transaction and to see that the form is complete, that the applicant understands the voter qualifications and certifies to the truth and accuracy of the information. They do not report any voter registration information on the application except to maintain a count of voter registration transactions.In a report on the branch office program entitled “A New Approach to Voter Registration,” Michigan Secretary of State reports that “the registration program is widely viewed as an unqualified success. It is responsible for a significant increase in the number of registered voters in the state, is partially responsible for an upward trend in the number of electors who vote in Michigan elections; has eliminated the need for extensive preelection registration drives; makes the updating of registration records less costly and more efficient; has eliminated the long lines which traditionally formed at clerks' counters on the last day to register before an election; and perhaps most importantly—makes registering to vote a great deal more convenient for Michigan electors.”This report also informs the reader that the program is acclaimed because its operational cost of $100,000 annually is surprisingly low. This amount covers generally postage and printing of the branch office registration forms. The personnel, facilities and computer equipment necessary to implement the program do not figure into the cost since they were already in place when the program was adopted.Albert Osborn who is employed by the Michigan Department of State as a Departmental Branch Supervisor declared that within the department's time factor scheme the time involved in handling voter registration applications is “very small”—2.4 minutes per application—and that the time involved in sorting and mailing the applications to the election's clerk is “so de minimis” that it cannot accurately be measured. Osborn further declared no complaints regarding the involvement of state employees in the voter registration have been received. The branch office supervised by Osborn processed 8,429 voter registration applications in the 1984 fiscal year and 7,180 applications in the 1985 fiscal year.
5. On July 30, 1985, the Board of Supervisors of Contra Costa County passed a resolution (No. 85/452) directing county departments to offer nonpartisan voter registration services to clients and the general public as part of their regular responsibilities. The Board of Supervisors of Alameda County passed a similar resolution (No. R–85–1099) on December 3, 1985.Warren Nelson, a business representative for the American Federation of State, County, and Municipal Employees (AFSCME), Local 2700 which represents in excess 1,500 clerical, professional, and technical employees in Contra Costa County declared that the local he represented fully supports the Contra Costa resolution and that its implementation “has in no way disrupted the normal work flow of the designated employees.”Sandra Creque, the supervising registration and elections technician for Alameda County declared that in response to the Alameda resolution she “trained 25 representatives of designated county agencies, whose employees have a great deal of public contact with eligible voters.” Creque further declared that the training which took place on two days and lasted approximately one hour consisted of the following: “(A) A brief overview of the Resolution's purpose and the need for outreach to potential registrants; (B) A review of the voter registration affidavit and the correct completion of the form; (C) A discussion of the procedure for forwarding completed voter registration affidavits to the Registrar of Voters' office, by utilizing the inter-office mail system, whereby employees put all completed forms in an inter-office mail envelope and send it with their other outgoing paperwork; (D) Questions and answers from participants.” These representatives in turn went to their respective departments and trained the appropriate employees on these procedures. No problems with training have been reported.Creque stated that in just the first three and one-half weeks that the Alameda County employee voter outreach program was in effect, 900 persons registered to vote. She stated that since the program's inception no complaints that voter registration activities interfere with other job responsibilities have been received, and no new employees have had to be hired.Creque further noted that voter registration activities take only one to one and one-half minutes with unregistered voters. Employees have not been burdened by inquiries from prospective registrants, and there have been no reports that clients mistakenly believe that registration is a prerequisite to the receipt of county services.Support for the Alameda resolution was also expressed by Randy Johnese, a Field Representative for the Services Employees International Union (SEIU), Local 535 which represents 850 public employees in Alameda County and 8,000 employees statewide.
6. See footnote 4, supra.
7. In her declaration, Creque noted that in June 1986 she received a call from Cindy Ceterski of the Los Angeles County Counsel's Office who asked about Alameda County's voter outreach program. Creque informed the caller that “it had been implemented and was running smoothly.”
McCLOSKY, Associate Justice.
WOODS, P.J., and KINGSLEY, J., concur.