Riverside County Sheriff Chad Bianco is not lazy, I’ll give him that.
During his unsuccessful run for governor this year, you may recall that the MAGA devotee found time to seize more than 650,000 ballots from the Proposition 50 redistricting race, claiming he suspected there were tens of thousands more votes cast than there should have been — a favorite (and false) complaint of election deniers.
There were not.
Undaunted by reality, and likely law, Bianco announced he was going to have his deputies recount the votes, even though this kind of interference in the chain of custody of ballots never had occurred anywhere in the United States.
This unprecedented seizure of ballots — something election-denier-in-chief President Trump has been hinting at trying himself for years — quickly became a national news story, and a national concern.
With midterms looming and more than one MAGA sheriff out there, what would stop another conspiracy-minded, badge-wearing maverick from doing something similar this November, potentially throwing our national election into turmoil?
The specter of Bianco setting a precedent for like-minded conspiracists to follow prompted two significant lawsuits — one led by the election experts at the UCLA Voting Rights Project and the other from state Atty. Gen. Rob Bonta.
The state Supreme Court heard arguments in those cases Monday, and while we’ll have to wait for the official rulings, things did not seem to go well for the sheriff.
What surprised me most, or maybe just relieved me, was how thin Bianco’s arguments were to support his actions. In the end, his legal team came with little more than contortions and cartwheels, trying to twist Bianco’s overreach into existing law.
His lawyer, Bradley Hertz, attempted to argue that legislators, when crafting laws protecting ballots, meant different rules to apply to investigations of elections preceding formal prosecutions. If that sounds confusing, it’s because it is.
Hertz seemingly was trying to convince the court that Bianco legally could pull his shenanigans as long as he didn’t actually find criminal wrongdoing, which would trigger a different set of rules.
“That seems bizarre,” Justice Goodwin H. Liu said during a back-and-forth with Hertz.
Indeed.
But it was Justice Joshua Groban who hit at the national implications of what Bianco had done — and what it could mean for the midterms if this court ruled in his favor.
“It seems like under your broad view of the warrant power … the sheriff could could seize ballots even before election day, right?” Groban asked. “Even before they were counted.”
It’s terrible to have ballots seized after they’re counted. It’s devastating if they were to be taken before there was an official tally, because how would anyone trust that there hadn’t been tampering? Simply seizing uncounted ballots, no matter what happens next, would create such paranoia and uncertainty that the election results almost certainly would be called into question — something that could play into the favor of, say, a wannabe authoritarian who fears he’s likely to lose a fair vote count.
Even Hertz seemed to acknowledge such a scenario was bad.
“If search warrants were allowed during the election or preelection, that would obviously wreak havoc,” he said. “There would be, kind of, a cat out of the bag, so to speak. You can’t count ballots if they’re not in the possession of the registrar.”
But then Hertz tried to come up with logic that what Bianco was arguing wouldn’t mean that ballots could be seized anytime, anyhow, and that instead courts could find a way to allow seizing only after the official count. The court did not seem convinced that this was a good idea, or that that is what the law should or did allow.
If that case didn’t go well for Bianco, it was the second case brought by Bonta that really might end up being a hard loss.
For years, decades really, in California and across the country, there has been a group of sheriffs who have argued they are a law onto themselves because they are elected, not hired or appointed. Some of these sheriffs argue that they are literally above federal law.
In California, there has at times been momentum to rein in this line of thinking by creating clear boundaries in law, but the state Legislature always has backed down in the face of opposition from law enforcement.
One potential curb on sheriffs’ power comes from a single line in our state Constitution that seems to say the state attorney general has supervisory power over them. But the meaning and power of this particular clause has long been debated and seldom invoked.
Bonta, however, invoked it against Bianco, claiming the the sheriff had to back off the ballot-seizing because Bonta had authority to order him to stop. Bianco did stop, to his credit. But the standoff was heard by the court Monday and likely will force clarity on an issue that has long lacked it.
Here again, the justices seemed amenable to Bonta’s argument that sheriffs, at least to some extent, answer to him as the state’s chief law enforcement officer. But the justices seemed far more cautious on this issue, and even the state’s attorney conceded that “it’s actually pretty remarkable how little our Constitution says about county sheriffs.”
If Bianco loses on this issue, it would be huge. It would mean that Bianco not only overstepped his power by seizing the ballots, but that he also had forever lessened the power of California sheriffs by clarifying they do answer to the attorney general. I’m sure that will be very popular with other sheriffs.
We’ll see what the justices say, but at least it seems likely that this embarrassing chapter of California election history will end in favor of the law, and democracy.
Maybe Bianco really does believe his conspiracy theories. After all, “there are some people who believe they had breakfast with Elvis on Sunday,” pointed out Chad Dunn, who argued the case for the Voting Rights Project.
“We can’t satisfy them,” Dunn warned.
More importantly, we shouldn’t — even when they wear a badge. Our laws already have robust protections for elections, and rogue sheriffs aren’t one of them.