Fair

Facts

The present case is an election contest for the Third Ward seat on the Common Council of the City of San Bernardino. This marks the second time that the case has been before us. Briefly, Fair was one of two runoff candidiates on the printed ballot for the seat. Hernandez was a legally qualified write-in candidate.

After the election, Hernandez was declared the winner. Fair filed an election contest. After proceedings before a special master, the trial court determined that Hernandez received 756 uncontested votes, Fair received 773 uncontested votes, and 76 votes were contested. The trial court ruled on the contested votes after taking extensive evidence, and finally determined that Hernandez received 796 votes and Fair received 794 votes. The court entered judgment confirming Hernandez’s election.

Fair appealed, challenging the trial court’s determinations on 36 of the contested ballots. On that appeal we determined that the trial court had erroneously allowed 5 contested ballots for Hernandez, and that Hernandez’s total was therefore reduced to 791. (See Fair v. Hernandez (1981) 116 Cal.App.3d 868, 875-877, 878 [ 172 Cal.Rptr. 379 ].)

However, in controlling…