Why I think Huntington Beach's Voter ID law will be upheld

Try as they might to undo Huntington Beach's efforts to establish a voter identification verification law, Attorney General Rob Bonta and Secretary of State Shirley Weber may lose the case on the merits, and in no small part because of a case precedent established in a matter I lost in the 1^st District Court of Appeal in 2023, in Lacy vs. City of San Francisco, 94 Cal.App.5^th 238 (2023).

Measure A is a charter amendment that was adopted by the people of "Surf City" with 53.4% support in the March 2024 election, whose major provision requires government issued photo identification at the polls. According to the National Conference of State Legislatures, 36 states have laws to show some sort of identification when a person shows up at a polling station to vote. Support for voter ID laws is a popular theme in many so-called "Red states" as a means to protect the integrity of the vote in an election, but progressive politicians and organizations, such as the American Civil Liberties Union, oppose such laws. In the case of the ACLU, it argues that many Americans lack government issued identification, that some find the IDs inconvenient to obtain or cost them money they cannot afford, and that laws requiring them suppress voting, especially among minority groups.

There is no evidence that Measure A is intended to discriminate against any voter group or suppress voting. Yet the State of California's progressive leaders who run things decided to oppose in court the decision of the voters of Huntington Beach, a charter city, on how they conduct their elections. In a 300+ page challenge filed in Orange County Superior Court last April, Attorney General Bonta and Secretary Weber rehash the progressives' speculations that verifying voter identity hurts voter turnout and try to make a case that questions about showing IDs at the polls are a pre-emptive matter of "statewide importance," and that California cities, even charter cities like Huntington Beach, simply do not have this power to manage their own elections. However, these California plaintiffs were denied a chance to get to the merits of the case quickly on a procedural issue raised by the City, as the complaint was found "not ripe for adjudication" and rejected by the Superior Court Judge, as the City Council has not yet implemented its provisions, which are aimed at the 2026 election cycle. Last week Bonta and Weber filed a Notice of Appeal on that ruling, even though the Judge had given them leave to amend their complaint when the City does formally implement the law. Bonta and Weber want to get to the merits right away. In a recent press release announcing the Notice of Appeal, Weber said part of her "role is ensuring that we encourage democracy through voter participation." Yet there is irony in her suing to cancel an actual vote of the people in Huntington Beach to accomplish her stated goal to "ensure democracy."

Given the result in Lacy vs. San Francisco, a decision widely hailed by progressives in favor of noncitizen voting, there is further irony in their legal position that conservative Huntington Beach does not have the power to manage its own elections for purposes of Voter ID election integrity, but that liberal San Francisco does have the power to conduct its own elections to include enacting noncitizen voting.

In 2022, in a lawsuit I filed against the City of San Francisco to prohibit the counting of votes in school board elections of persons who are not United States citizens, Superior Court Judge Richard B. Ulmer, Jr., found that the noncitizen voting ordinance of that charter city "is contrary to the California Constitution and state statutes and cannot stand." A permanent injunction was issued to stop San Francisco from processing noncitizen voting. In denying the City's Motion in a new Order, Judge Ulmer wrote that San Francisco's noncitizen voting law "violates unequivocal provisions of the California Constitution and state statute; this is not a difficult or close question." At that point, I had won my case.

However, the Court of Appeals had no difficulty at all in overturing Judge Ulmer's decision, notwithstanding the factual liberal-leaning pedigrees of all three members of the panel. In their appeal, the City had urged and relied, among other things, on the appellate court applying a broad interpretation of California's affirmative Constitutional grant of power to charter cities, at Article XI, section 5, to conduct city elections. And it surely did so, despite the rather strong, otherwise pre-emptive language in the State Constitution to the contrary that Judge Ulmer had found. Known as part of the "Home Rule" provisions of the state constitution, the Lacy court opined that Home Rule possessed by charter cities "confer(s) expansive authority in those areas deemed to be within their purview, suggesting the language of the provisions should be construed broadly to further that intent." 94 Cal.App.5^th at 251. Conducting elections is indeed an enumerated charter city power. "Thus, the history of home rule in the California Constitution demonstrates an intent to confer broad authority on charter cities" (94 Cal.App.5^th at 253) over their municipal affairs. Which specifically includes elections.

One might think that a regulation in favor of verifying identity with a government issued ID at the polls is more of a procedural matter than a substantive one, or what might be referred to as a "time, place and manner" regulation, ministerial in nature, subject to a lower standard of review. But the distinction on whether the requirement is ministerial or substantive does not matter as long as it does not discriminate, because of the strong Home Rule power as a charter city that Huntington Beach possesses, as the law established in the Lacy case, and because there is no credible evidence at all in Huntington Beach that the provision is intended to keep people from voting. Whether the rule expands or contracts the voting franchise does not matter, as long as it is not intended to discriminate.

How can requiring a government ID to vote be a pre-emptive matter of "statewide importance" while expanding the voting franchise to allow noncitizens to vote is not, but rather, a matter of local concern? It will soon be up to the 4^th District Court of Appeal to decide. It seems to me that in the context of a charter city's power to conduct its' own elections, it will not be very hard for the Court of Appeals in the Huntington Beach case to reconcile this difference given the Lacy precedent. The 4^th District has a case precedent that points in favor of upholding Huntington Beach's Measure A. As a supporter of voter verification at the polls, and a believer in following case precedent, I would be grateful for such a silver lining arising out of the case I lost in San Francisco.