Bowen

As part of a program intended to ensure the integrity of California elections, Debra Bowen, in her official capacity as the California Secretary of State (the Secretary), decertified and then immediately recertified a number of voting systems in use throughout the state. As a condition of recertification, the Secretary imposed a comprehensive system of postelection manual ballot tallying on local elections officials. In this appeal, we consider a challenge raised by plaintiffs County of San Diego and Deborah Seiler, in her official capacity as Registrar of Voters for the County of San Diego, and interveners the counties of Kern, Riverside and San Bernardino (collectively, the Counties) to these requirements. The Counties contend that the Secretary does not have the authority to impose the tallying requirements and that even if the Secretary does possess such authority, she was required, but failed, to act pursuant to the mandates of the Administrative Procedure Act (the APA).

As we explain below, we disagree with the Counties on the question of the Secretary’s authority to issue the ballot tallying requirements. We agree, however, that the Secretary’s issuance of the…