Legal Alerts Feb 27, 2020

Election Void for Being Held on Improper Day, Court Holds

California Appellate Court Invalidates Water District Board Election

Election Void for Being Held on Improper Day, Court Holds

A recent decision by a California appellate court highlights the importance of holding elections in accordance with the time and date requirements of the Elections Code.

In Atwell Island Water District v. Atwell Island Water District, the Fifth District Court of Appeal, in a partially published opinion, concluded that an election held to fill the expiring seats of two members of a water district’s governing board was void for being held the day after a state holiday.

In Atwell, Atwell Island Water District Board of Directors adopted a resolution to conduct a special election to fill the two vacancies on the District’s five-member Board, with an election to take place by all-mail ballot on Jan. 17, 2017. The election was held and two candidates, Milton Pace and Nathan Cameron, were elected. On Jan. 26, 2017, the District held a noticed meeting, at which Pace and Cameron were officially seated on the Board, and the Board voted to retain Herr Pedersen & Berglund, LLP as general counsel.

The dispute in this case stemmed from a disagreement among the Board concerning the validity of the election. A faction of the Board contended that, because it was held the day after a California state holiday, Martin Luther King, Jr. Day, the election was void and Pace and Cameron were not elected. Since they were not elected, the faction argued, no quorum was present at the meeting at which the action was taken to hire Herr Pedersen & Berglund, LLP. This meant, they argued, that the law firm was not authorized to prepare, sign or file pleadings on the District’s behalf. This also constituted an illegal meeting under the Brown Act.

In examining this issue, the appellate court initially found that the election date did not conflict with the dates prescribed by Elections Code section 4108, subdivision (c), which provides that all elections conducted under that section “shall be held on a date prescribed in [Elections Code] Section 1500 or on any other date other than an established election date.” Elections Code section 1500 states that mailed ballot elections may take place on either the first Tuesday after the first Monday in May of each year or the last Tuesday in August of each year. Per Elections Code section 1000, the “established election dates” are:

  • the first Tuesday after the first Monday in March of each year,
  • the second Tuesday of April of each even-numbered year and
  • the first Tuesday after the first Monday in November of each year.


However, the court determined that the election did run afoul of Elections Code section 1100, which provides that “[n]o election shall be held … the day before, the day of, or the day after a state holiday.” Because provisions of the Elections Code relating to the time and date of holding elections are mandatory, the court explained, the election was void for being held on an improper day. Thus, since no valid election occurred, Pace and Cameron were not elected to the District’s Board. And since they were not elected, Herr Pedersen & Berglund, LLP was not retained by a majority of the  Board, and was therefore not authorized to prepare, sign or file pleadings on the District’s behalf.

For more information about this decision and how it may impact your organization, contact the authors of this Legal Alert listed at the right in the firm’s Municipal Law practice group or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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