Orange County District Attorney Todd Spitzer might have overstepped his authority this week when he declared a candidate for Fullerton City Council ineligible to run for office, according to election officials and legal experts.
On Tuesday, Oct. 15, Spitzer’s office issued a statement announcing the arrest of Scott Markowitz, a candidate for Fullerton City Council, charging him with two felony counts of falsifying nomination paperwork. Markowitz faces up to three years and eight months in state prison if convicted on both counts.
But as he announced the arrest, Spitzer also said Markowitz was ineligible to run for city council.
“The decision to file criminal charges against the candidate prior to an election is not a decision I made lightly,” Spitzer said.
“But given the risk to the electoral process as well as the potential of the City of Fullerton having to pay for a special election should Markowitz be elected, there was no choice but to file criminal charges prior to the election and alert voters of his ineligibility to run for City Council.”
Spitzer made that declaration despite the fact that Markowitz had not been convicted of any crime.
So far, no local election authority has yet to agree with Spitzer that, absent a conviction, Markowitz is ineligible to run for office or to serve on the council if he wins.
Markowitz has met “all the technical requirements” to appear on the ballot, said Fullerton City Clerk Lucinda Williams.
With less than three weeks to go before Election Day, ballots with Markowitz’s name have already been mailed to voters. He is one of four candidates, along with Vivian “Kitty” Jaramillo, Jamie Valencia and Linda Whitaker, running to represent the city’s Fourth District.
Other election law experts question Spitzer’s opinion.
“I’ve never heard of such a thing of a DA just simply declaring someone ineligible,” said election law expert Rick Hasen, Director of the Safeguarding Democracy Project at the UCLA School of Law.
“I am aware of no authority in the state elections code giving a prosecutor the power to declare a candidate ineligible for office,” Hasen added. “This candidate may well not be eligible to serve in office, but I expect that determination would have to be made by a judge if the candidate were to win the election.”
In multiple conversations with the Register, the DA’s office has doubled down on its statement that Markowitz is ineligible to appear on the ballot.
“It’s very clear based on our investigation that Markowitz did not meet the threshold to qualify for the ballot,” OCDA spokesperson Kimberly Edds said on Thursday.
At issue is the validity of electoral paperwork filed with the city by Markowitz. In California, candidates for city council must obtain 20 signatures on nomination paperwork to qualify for the ballot, according to the state Elections Code. Anyone over the age of 18 can circulate nomination paperwork, but the person signing the filing paperwork attesting that they were the circulator must be the same person who witnessed the signatures.
The district attorney’s office alleges that Markowitz did not personally witness the signatures. But by signing the nomination paperwork that he was the circulator, and by attesting that he personally witnessed the signatures, the DA says Markowitz committed two counts of perjury.
“Numerous voters who signed Markowitz’s nomination paperwork told district attorney investigators that Markowitz was not the circulator of the paperwork, and he did not witness them signing the nomination papers, rendering the signatures invalid,” the DA’s office said Tuesday in a prepared statement.
But none of those signatures have yet been rendered invalid by a court. And, according to Fullerton City Clerk Williams, the OC Registrar of Voters did, in fact, verify the signatures to ensure they correspond with registered voters in Fullerton’s Fourth District.
“The signatures on the form were valid signatures of registered voters in the district,” Williams said. “The issue is whether the nomination paper was legally submitted.”
“The City would not make a judgment regarding the OCDA’s charges,” Williams added.
And though she said she hasn’t conducted deep research into the question, Williams believes Markowitz remains a qualified candidate until the issue is adjudicated by a court.
“If he were to win the election, our city attorney and I would discuss his status at that point,” she said. “Then we will follow whatever state election law says we’re supposed to do.”
Orange County Registrar Bob Page also said it was not his decision to determine Markowitz’s eligibility to run or hold office.
Spitzer, on Tuesday, also suggested his office’s move to charge Markowitz was part of a broader push to ensure the integrity of the election.
“American democracy relies on the absolute integrity of the electoral process,” he said.
“Voters must have total confidence that every election is being carried out in a fair and unbiased manner. Interference in the electoral process in any manner and at any stage jeopardizes the will of the people being carried out while eroding the trust of voters that their vote counts. As the elected District Attorney of Orange County, I refuse to allow our electoral process to be subverted and exploited by anyone.
But Hasen said that the DA’s proclamation about Markowitz’s eligibility is itself a possible step against electoral integrity.
“It’s not up to the district attorney to decide who is an eligible candidate,” he said. “That’s a question for election officials and the courts.”
Matt Lesenyie, an assistant professor at Cal State University Long Beach who researches political communication and voter information, said Markowitz might have a case of election tampering if the DA’s allegations are determined to be false.
“It is remarkable to file charges and declare a candidate ineligible to serve,” Lesenyie said.
“My read of the case is that it is a clear-cut, black-and-white, affidavit forgery,” he said. “So Markowitz signed his confession in a way. That still makes me think the DA is putting the cart before the horse with the declaration before the election. It is an extreme level of confidence on their part. If they are wrong, I don’t see why Markowitz wouldn’t have a case of election tampering.”
Markowitz did not respond to a request to comment for this story.
No hearing dates have yet been scheduled for his case, according to online county court records.
