Bicycle Accidents on Crosswalks

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Heather M. in Pacific Heights who asks: “I was riding my bicycle down Oak Street, approaching Franklin Street when I realized my backpack was not closed properly, so I pulled over onto the sidewalk to adjust my backpack. As I jumped back on my bike, I noticed that the pedestrian walking signal was on, so I began riding through the intersection within the marked crosswalk. Suddenly a vehicle came racing down the street and struck me. I was thrown off my bike and fell to the ground. I was transported by ambulance to the hospital. At the hospital, the attending doctor told me that I had broken my left ankle and it would require surgery. The driver is adamant that the collision is my fault because I should not have been riding my bicycle within the crosswalk. But he was driving so fast that even if I would have walked my bike across the street, he would have still struck me because he wouldn’t have had enough time to stop. I realize that maybe I shouldn’t have been riding my bike on the crosswalk, however, is there anything I can do to recover for my medical bills, lost wages and pain and suffering?”

Dear Heather,
I am sorry to hear about your accident. The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages are commonly known as pain and suffering, physical impairment and inconvenience. However, there are a few hurdles you will need to overcome in order to obtain compensation. Additionally, the compensation may be reduced by what is called, “Comparative Fault,” which will be discussed in more detail below.

As a general rule, adult bicyclists have the same duties and responsibilities as motor vehicle drivers under California Vehicle Code (CVC) section 21200. Therefore, under CVC 21200, it is unlawful to ride a bicycle within a crosswalk. In order to comply with California law and for your own safety, bicyclists should dismount their bicycle and walk it across the street within the marked crosswalk.

Many times, the police report will place the bicyclists at fault because they were riding within the marked crosswalk, which makes it more difficult for individuals to pursue a claim. It is not surprising that the driver of the vehicle is refusing to accept any liability as many insurance companies will rely on the police report and CVC section 21200 to place 100% of the fault on the bicyclist. However, if a serious bicycle accident occurs within a crosswalk, that does not automatically mean that you are precluded from recovering compensation for your injuries.

Based on the limited information you have provided, it appears that at the time you were riding within the crosswalk pedestrians had the right of way. This means that the driver of the vehicle had the responsibility to yield-to-pedestrians. Therefore, had the driver of the vehicle been driving as a reasonable and prudent driver, instead of speeding down the street, he would have had sufficient time to stop. Thus, as a result of his negligence, you suffered personal injuries.

An issue that is likely to be raised is, “Comparative Fault,” also referred to as, “Comparative Negligence.” Comparative Fault is the percentage of fault, if any, that will be assigned to the injured party. Under California law, if the parties are found to share fault, the law requires that the amount of recovery that the injured party is entitled to be reduced by his or her percentage of fault. For example, if the injured person is found to be 30% at fault, their compensation award will be reduced by 30%. This percentage is generally assigned by the driver’s insurance adjuster if the case is settled pre-litigation. However, if your case does not settle before trial, a jury will decide what percentage of fault will be assigned to each party.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of cases involving Comparative Fault, it is important that you contact a qualified and skilled trial lawyer to review the situation and assist you with your claim to ensure that you receive full and just compensation for your injuries. 

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Assembly Bill 47 Increases Penalties for Distracted Drivers

Written By: Christopher B. Dolan and Taylor B. French

Beginning July 1, 2021, California drivers will face increased penalties for using handheld devices while operating a motor vehicle. Specifically, a driver convicted of violating California’s laws prohibiting the use of handheld technology will be issued a point on his or her driver’s license under certain circumstances.

In an effort to curb motor vehicle collisions caused by distracted drivers, California has enacted several laws throughout recent years restricting drivers’ use of handheld devices while driving.

In 2008, a California law went into effect prohibiting all drivers from using a handheld wireless phone while operating a motor vehicle. In 2009, California’s Wireless Communications Device Law went into effect, banning drivers from writing, sending, or reading text messages while operating a motor vehicle.

In 2017, California law went a step further, prohibiting drivers from holding a cell phone while driving. The 2017 law made it so that a driver’s phone must be mounted on the windshield or center console rather than in a driver’s hand. The only permissible actions on the device are a finger tap or a single swipe. As of 2017, drivers could no longer use their cell phones while driving to navigate map apps or utilize music apps. A driver 18 years of age or younger, however, is prohibited from driving while using a cell phone, regardless of whether it is being used hands-free.

Currently, the penalty for failing to use hands-free technology while operating a vehicle amounts to 162 dollars – a relatively small fine for an activity that can have fatal consequences for those on the road. Indeed, a violation for driving while using a cell phone carries the lowest base fine for any violation of the Vehicle Code. The only other violation with a comparable penalty is the failure of a bus driver or bus passenger to wear a seatbelt. Moreover, existing law provides that drivers cannot be issued a point on their record for violations of hands free device laws.

California’s new law, however, establishes that a driver convicted of a distracted driving offense will be issued a point on his or her record for each conviction occurring within thirty-six hours of a prior conviction for the same offense. Points are used by the Department of Motor Vehicles to determine whether a driver should be considered a negligent operator.

What is the consequence of being considered a negligent operator? The DMV may suspend or revoke a negligent operator’s driving privilege. Additionally, insurers may increase a driver’s insurance rate depending on the number of points on the driver’s record. So, in effect, drivers who continue to utilize handheld devices while driving will not only face monetary fines, but they could also potentially lose their driving privileges or suffer increased insurance rates.

An individual with four or more points in 12 months, six points in 24 months, or eight points in 36 months is considered a negligent operator. Except for those issued for driving under the influence, points will remain on a driver’s record for a total of 36 months. The Department of Motor Vehicles can issue points on a driver’s record for various violations of the Vehicle Code, including speeding, crossing a double line, or making illegal U-turns.

AB 47, the bill increasing the penalties for distracted driving offenses to include a point on a driver’s record, unanimously passed both the Senate and Assembly this summer and was signed by Governor Gavin Newsom in October. The bill’s author, Assemblymember Tom Daly, explained the need for the increased penalties: 

“Driving while using a cell phone is a serious safety issue. In 2017, there were 243,760 distracted driving offenses in California related to cell phone use. During that same year, there were 932 collisions – 31 of which were fatal – where distracted driving due to cell phone use was determined as the factor”

“Currently, driving while using a cell phone results in a small fine (oftentimes less than a parking ticket), but it has not proven to change behavior. For example, a 2016 study found 7.6% of all drivers were seen to be using their phone while driving, compared to 5.4% in 2015. This change marks a 2.2% increase. This bill elevates a distracted driving citation to the same status as other dangerous driving violations, such as speeding or running a red light, helping discourage people from taking part in this dangerous behavior.”

Hopefully, moving forward with the new penalties in effect, drivers will consider the increased ramifications of driving while using a cell phone and turn their focus away from their devices and onto the road and their surroundings. Doing so would serve to not only protect the drivers themselves but all other individuals on the road, decreasing vehicle collisions and saving lives.

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2020 Justice Empowerment Scholarship Award Winner

Dolan Law Firm Announces the Recipient of the 2020 Justice Empowerment Scholarship

 

Christopher Dolan, founder and lead trial counsel at Dolan Law Firm, PC announced today that the recipient of the 2020 Dolan Law Firm’s Justice Empowerment Scholarship Program is Briana Guerrero-Vega, a graduate student at California State University-Chico. The law firm is awarding Ms. Guerrero-Vega a $2,500 scholarship.

Briana Guerrero-Vega is an arising first generation graduate student at California State University-Chico. She has a bachelor’s degree in Social Work & Multicultural Gender Studies with an emphasis in Women Studies and is currently studying for her Masters of Social Work. This year, she was recently promoted as the Program Director for the Gender & Sexuality Coalition. She is passionate in pursuing her studies and wants to make sure she brings the value of intersexuality to others who are barely exposed to the term.

In her powerful video, Briana returns to her community in San Francisco, CA to discuss what justice means and explains how to better promote the well-being of society to validate intersectional to advocate for justice.  Ms. Guerrero-Vega “first thought the scholarship was a unique topic; justice, a conversation that most scholarships do not ask. I was not only inspired to show my background but showing how someone from an urban community can thrive”.

Here is Briana Guerrero-Vega’s award-winning video:

We admire Briana’s time and dedication for her video and her commitment to educating her community. She met and surpassed the criteria and demonstrated the qualities we look for in our scholarship program. We hope that Briana’s video and the others posted via YouTube will inspire and encourage young audiences nationwide to advance the cause of social justice in their communities. At Dolan Law Firm, we share the same values and beliefs that justice is for all.

Additional 2020 Justice Empowerment Scholarship Submissions

Gabriel Ponce, California State University-Fullerton 

Shawn Arthur, Texas State University 

About Dolan Law Firm

With offices in San Francisco, Oakland, Marin, and Los Angeles the Dolan Law Firm represents clients in personal injury; car, Uber, motorcycle, bicycle, and pedestrian accidents; elder abuse and neglect; employee rights and wrongful termination; whistleblower; and civil and LGBT rights cases. Learn more at https://dolanlawfirm.com

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What Happens When a President Loses Re-Election and Won’t Concede?

Written By: Christopher B. Dolan and Matthew D. Gramly

Q: This week’s question comes from Joe in Tiburon who asks: What happens when a President loses his or her re-election but refuses to concede or step aside?

A: Dear Joe,
This is a great question. Our entire government runs on the honor system. Yes, we have laws, rules, elections, etc., but we simply trust that our leaders and elected officials will honor and abide by those requirements and traditions. 

Our first President was George Washington. After he served as President another election was held, another President was elected and there was a peaceful transition of power. George Washington voluntarily gave the power of the Presidency to his successor, John Adams. At the time, King George III of Great Britain said that if Washington did in fact voluntarily give up the Presidency that he would be viewed as the greatest man alive. Why?

Up until that point in Western history such a democratic, peaceful transfer of power had simply never happened before, it had almost never even been contemplated.  Power had been gained and lost by kings and conquerors through wars. Voluntarily giving up near dictatorial power simply was not a part of human nature in the late 1700s or during any time before.  Back then, citizens were meant to be ruled.  They certainly were not meant to participate in their own governance and were certainly not meant to participate in choosing their own leaders.

In forming the structure of its government through the Constitution, the United States of America chose a different path.  Government of the people, by the people, for the people. Although at that time, “the people” participating in our government and its selection were, by definition, white men who owned property as well as, for many of them, slaves.  The crucial component to our governmental structure being that every four years the citizenry would vote to elect a new President or vote to re-elect a current President and if there were a new President elected, the current President would accept the results of the election and would vacate the office voluntarily, they would give up power voluntarily, reflecting the will of the people.

But Joe’s question is, “What if that doesn’t happen?” What if a current President does not accept the will of the voters and does not give up power voluntarily? This circumstance certainly seems to be the case with President Donald J. Trump, who just lost his re-election bid to now President-Elect Joe Biden. President Trump is refusing to concede his loss, he is refusing to cooperate with or accept a peaceful transfer of power to his successor and is ordering his administration not to cooperate with the transition. By all indications he is unwilling to voluntarily give up the power of the Presidency. 

These actions break with the honor system that has been in place through 44 Presidents over almost 250 years – an honor system to which every United States President before Trump has adhered. This is a fracturing of one of the most sacred principles of American democracy. 

Our honor system requires faith in our laws and traditions, both by our citizenry and on the part of our leaders. One such tradition is a concession speech or acknowledgement. Mitt Romney conceded in 2012. John McCain conceded in 2008. John Kerry conceded in 2004, and on and on all the way back to the time of George Washington.

There also has to be faith in voting as well as in our elections and their outcomes after the ballots are cast and counted. None of these traditions are being honored at present. President Trump is actively calling these traditions into question, ignoring them and/or actively refuting them. None of this has ever happened before. These are all lines that have never been crossed before now. The effect is to cast doubt on our entire system of democracy, to further erode the trust of the citizenry in our government, and to open the door for those who already wish to question the legitimacy of a Joe Biden Presidency.

However, there is at least one safeguard in place to combat what is happening right now and to ensure a peaceful and orderly transition of power. It is found within the 20th Amendment to the Constitution of the United States, which governs the length of Presidential terms. Each four year term of President ends at noon on July 20th of the year following a Presidential election. As of noon on January 20, 2021 Donald J. Trump will no longer be President of the United States of America, regardless of whether he concedes or not. That date, as defined by the 20th Amendment marks the end of his first term as President.

In accordance with Article II, Section I of The U.S. Constitution, establishing the Electoral College and its governance of our selection of Presidents, having received a majority of votes in the Electoral College Joe Biden is now President-Elect and that same date and time, noon on January 20, 2021, marks the beginning of his first term as President of the United States of America.

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Who Can File a Wrongful Death Lawsuit?

Written by: Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Mr. Martin from San Carlos who asks:
Q: A number of years ago my daughter passed away, and my wife and I were left to raise my grandson, because the child’s father has been out of the picture since birth. Recently, tragedy struck our family again and my grandson, who was a minor, was killed in an automobile accident, caused by another person. I have been trying to bring a wrongful death lawsuit but keep being told I cannot sue. Is this correct? 

A: Dear Mr. Martin,

Firstly, I am sorry to read about your losses, my condolences to you and yours as you go through these difficult times. Dealing with the death of a loved one can be devastating. On top of that, there may be many medical costs, funeral costs, and other expenses when facing an unexpected passing of someone close. As for the right to bring a wrongful death suit by you and your wife, this is not as cut and dried as one would think.

Only certain individuals are allowed to bring a wrongful death claim after a negligence-related death in California. Formerly, only biological or adoptive parents could sue (“had standing”) in California for a son or daughter’s wrongful death. Under California Code of Civil Procedure Section 377.60, a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:

  1. The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, of, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
  2. Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents.
  3. A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.

In fact, it was previously held that a person who was not a natural parent had no right to sue for an unadopted child’s wrongful death, even if an adoption process was in progress [Reynolds v. City of Los Angeles (1986) 176 Cal.App.3d 1044, 1052-1053 — “the Reynoldses were neither the natural parent(s) of Samuel nor did they ever conclude formal adoption proceedings.”]

Those person(s) who qualify under categories (a-c) of the California Code of Civil Procedure Section 377.60 can recover both economic and non-economic damages for their loss. These losses included, but are not limited to the following:

  1. The loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support provided by decedent;
  2. The loss of gifts or benefits that could have expected to receive;
  3. Funeral and burial expenses; and
  4. The reasonable value of household services that the child would have provided.

However, California Assembly Bill 2445, signed into law in September by Gov. Newsom, amends CCP 377.60 to now allow legal guardians to sue for wrongful death in appropriate circumstances. The new language of CCP 377.60 includes:

“[i]f the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.”

As before, a decedent’s surviving spouse, domestic partner, children, and children of any deceased child continue to have standing under the wrongful death statute.

The new law, which went into effect September 10, 2020 now allows legal guardians to pursue wrongful death cases on behalf of minors as if they were the parents, provided the parents are deceased. The law was introduced as an emergency measure to prevent the statute of limitations from running for a Moreno Valley couple who raised their nephew after his biological parents died.

In your case, it would appear that whether or not you and your wife have standing may come down to whether or not your grandson’s father is still around. Unfortunately, because the law is so new in this area, it is unknown if the courts will view a parent that has essentially abandoned their child, in the same light as a parent who is deceased.

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ADA and Voting

Q: Samy: May other people help me vote?

A: Samy, great question. You can choose 1 or 2 people to help you in the voting booth, but not your employer or union official.  You can ask an election worker to help you, but, they must not influence you; you can ask or bring a sign language interpreter to help or call the County Elections Office before the election to request an ASL interpreter. You can also take your service animal to the polling place and into the voting booth.

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Q: Madison: My mother was appointed a conservator several years ago, can she vote?

A: Excellent question Madison. The short answer is your mom vote unless a judge ruled that you are not allowed to vote. When your mother was first assessed for a conservatorship, the court made a decision about whether she can vote. There are lots of ways to find out if she is eligible to vote:

  • Check the order appointing a conservator (look at the form with the number GC 340).
  • There is a section that says whether or not she is allowed to vote.
  • If the box on the form is not checked, then your mom is eligible to vote once she registers, she can vote.
  • If the box on the form is checked, then the court said she cannot vote.
  • If you cannot find your form GC 340, you can ask your conservator, the case manager at your regional center or call your county elections office to ask if she is eligible.

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Q: Jillian: Can I vote if I will not be able to vote in person and it is more than a week before Election Day?

A: Jillian, thanks for asking. Anyone can request a Vote-by-Mail ballot at least 7-days before Election Day, October 27, 2020, by filling out and returning the postcard on the Sample Ballot/Voter Information Guide, or by calling your County Elections Office. A complete list of all Elections Offices by county is located at: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

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Q: Marley: How can I vote if I did not request a Vote-by-Mail ballot in time, but I cannot leave my home or am hospitalized because of a medical emergency?

A: Marley, despite the best laid plans’ life happens. California has special procedures for a voter hospitalized or in a care facility or cannot leave their home due to a medical emergency. If you registered to vote at least 15 days before Election Day and are not able to vote in person because of a medical emergency and it is less than seven (7) days before Election Day (the deadline for requesting a Vote-by-Mail ballot), you can request and complete an emergency medical ballot.

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Q: Romulus: What is an Emergency Medical Ballot and how does it work?

A: Romulus, thanks for asking, for the six days prior to an election, a registered voter who is unable to vote in person at a polling place or vote center due to confinement in a hospital, another facility or at home because of a medical emergency can fill out a form to authorize someone to go to the Elections Office to pick up a ballot for them. You may have another person help you read and mark your ballot. Others may not mark your ballot for you unless you ask them to do so.

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Q: Remus: What is a late vote-by-mail ballot?

A: Remus, If a voter is not able to vote in person at the polls and does not have a vote-by-mail ballot, the voter may apply in writing for a late vote-by-mail ballot. This application must be provided in person to the county elections official by the voter or the voter’s representative. The late vote-by-mail ballot must be returned personally or through the voter’s representative. The following link is a California Late Vote-By-Mail Ballot Application.

https://elections.cdn.sos.ca.gov/vote-by-mail/pdf/late-vote-by-mail-application.pdf

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Q: Jeff: This is an extremely important election and I want to make sure my vote counts. I have a disability want to know what services are available for me before I show up to vote.

A: Jeff, thank you for your question. Set forth below are links to election information for accommodations such as American Sign Language (ASL), accessible polling places listed by county, county early voting and drop box locations, large print, audio ballots, curbside voting and more.

Resources:

Disability Rights California operates a Voting Hotline to assist Voters with Disabilities. Please feel free to call for assistance: 1-888-569-7955.

Assistance for Voters with Disabilities

Polling place accessibility guidelines

Guide to Counties providing curb-side voting

Track your ballot

American Sign Language (ASL) assistance with ballot – ASL video ballot propositions

Large Print and Audio Voter Information Guides

Early voting and ballot drop box locations

Find your polling place

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Unofficial Ballot Drop Boxes

Written By: Christopher B. Dolan and Casey Hultin

This week’s question comes from Nancy B. who asks:

Q: I have read that there are unofficial ballot drop boxes. How do you know if a ballot drop box is real? And what do I do if I find out later that I dropped my ballot off at the wrong ballot drop box?

A: Dear Nancy,
Great question. You can check online to see the locations of official drop-off boxes in your area at caearlyvoting.sos.ca.gov. The California Secretary of State lists all the official ballot drop-off locations in your area. You can search in any city or county, or search for all drop-off locations within 10 miles of a particular address. The California Secretary of State also lists all services provided at that location (many ballot drop-off locations are also locations for early voting) and the hours during which the services are provided. You may have better luck searching using a specific address. When I searched with my zip code, only four different ballot drop-off locations popped up. When I searched by my address, I found 82 locations within 10 miles of my address (and the first ten options were all closer to my location than the 4 that appeared when I searched my zip code.)

The ballot drop-off locations listed online are updated frequently in the event there is a new official ballot drop-off location.

If you do not see a ballot drop box that you know of on the California Secretary of State website, it is likely an unofficial, unauthorized drop box. If you drop your ballot in one of the unofficial, unauthorized ballot drop-off locations, there is no guarantee that your ballot will be counted. If you have already placed your ballot in an unofficial, unauthorized drop box, and you are concerned whether your vote will be counted, you have a few different options.

You should first check to see if your ballot has already been accepted. You can check this on BallotTrax at california.ballottrax.net by signing up for a free account that shows the status of your ballot. You do not need to sign up prior to dropping your ballot off to receive updates.  BallotTrax has your ballot information already. The website updates quickly and provides updates at different stages. For example, BallotTrax will tell you when your ballot is, “inbound,” and the postal service has indicated that they have your ballot and are returning it to your county elections office. The website also will tell you when your ballot has been received by county election officials and when county election officials have accepted your ballot. If you dropped your ballot off in an unofficial ballot drop-off location more than a week ago, and the website still does not reflect that the postal service is returning your ballot to county officials, that may be cause for concern.

If BallotTrax does not show that your ballot is in route to county officials, and you dropped off your ballot, you should contact your county election officials to ask what they prefer you do, as procedures for a lost ballot vary from county to county. Given we are already less than three weeks away from Election Day, the deadline will have likely passed to receive a new ballot in the mail. Instead, your county will likely ask you to vote via provisional ballot at your local polling place. Provisional ballots are used in situations where a person’s voting status has not been verified for some reason. They are carefully audited to make sure a person casting a provisional ballot is not voting for a second time. Provisional ballots are helpful in situations such as this one where a person is unsure their vote will be counted and wants to be sure they voted.

Christopher B. Dolan is the owner of the Dolan Law Firm. Casey Hultin is an Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

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Health and safety measures at the voting booth

By Christopher B. Dolan and Vanessa C. Deniston:

This week’s question comes from Stella M. who asks:

Q: I am interested in volunteering as a poll worker in my county on Election Day, but I am concerned about the health & safety ramifications. Hundreds of people will likely be funneling through polling stations on November 3rd, while we are in the middle of a global pandemic. What steps are being taken to protect the health and welfare of both volunteers and citizens?

A: Dear Stella,

Thank you for your question. Your enthusiasm to volunteer is admirable, as is your healthy respect for the Covid-19 virus. First, you should evaluate if volunteering in person makes sense given your own health. If you are immunocompromised or otherwise fall into a high-risk group, in-person volunteering would pose a considerable risk. If poll working is too great a risk for you, there are a great number of ways to help get out the vote, such as phone banking, ensuring voters have a ride to the polls, helping by talking voters through the mail-in-ballot process, and assisting individuals in obtaining a valid ID.

If you are not in a high-risk category and you want to volunteer in person, the CDC has released guidelines to keep poll workers and citizens safe, though there will always be risk involved. The CDC recommends three strategies in helping reduce risks during the election process.

The first strategy is offering a wide variety of voting options, including: voting by mail, early voting or voting in person. In June 2020, Governor Newsom signed a law requiring counties to drop off mail ballots to every active registered voter, whether or not requested. Counties are also required to open one ballot drop-off location for every 15,000 registered voters 28 days before election day. 

The second strategy is offering longer voting periods through early voting periods and longer operating hours on Election Day. Given the economic effects of the COVID-19 pandemic, venues traditionally used as polling places such as community centers, retirement homes and churches are harder to utilize safely. In August 2020, California Senate Bill 423 was approved giving counties the ability to merge precincts, as long as voter ratios remain intact. These consolidated polling places are required to be open from October 31, through Nov. 2 for at least eight hours each day and from 7 a.m. to 8 p.m. on Election Day.  

The third method involves implementing rigorous safety protocols at polling stations. California’s Secretary of State has set out a number of measures to be taken before volunteers arrive at their assigned polling place as well as while they are volunteering. Poll workers must make every effort to stay healthy prior to service, including engaging in self-screening, temperature and symptom checks, frequent hand-washing and use of hand sanitizer, wearing a face covering, and observing social distancing guidelines leading up to service. 

Once inside the polling place, poll workers should continue to take these safety measures. Polling stations should be configured to ensure traffic flow is conducive to social distancing guidelines and face-to-face interactions are minimized. Check in stations should be placed six feet apart from one another and floor markers should indicate appropriate distances as well as help directional flow. Voting booths should also be placed six feet apart from one another, as well as six feet apart from the check-in desk and scanner. Some sites with limited space may receive plexiglass or other partitions which can block air flow between booths. The scanner station is recommended to be near an exit, preferably at the opposite side of the entrance with an exit through a different doorway. Keeping doors and windows open for extra ventilation is also recommended. 

As a poll worker, you will be tasked with routinely disinfecting commonly used surfaces, such as door handles, pens and voting booth equipment. You will also be guiding voters safely through the physical voting process, which will require maintaining social distancing and giving clear and audible verbal instructions. Poll workers are advised to ask each voter to use hand sanitizer and should not provide the voter a ballot until the hand sanitizer has dried. 

Poll workers should wear a mask at all times and may need gloves, considering that some voters could be asymptomatic. Should a voter arrive without a mask, free masks will be available for use. It is important to know voters cannot be turned away for failure to wear a mask. This may mean poll workers will have to adjust the flow of traffic to ensure the voter is kept as socially distanced from others as possible. One voting booth should be placed further away than others for mask-less voters. Poll workers should offer verbal assurances that the citizen will be allowed to vote, despite not having worn a mask. Should a citizen become hostile or aggressive, poll workers should have an agreed upon phrase to signal a call to security or law enforcement. 

Should you decide to volunteer your time, be sure to review both the CDC guidelines and California State Guidelines for poll workers ahead of your date of service. Good luck, stay safe and we thank you for playing this important role in ensuring a free, fair and accessible election for all Californians.   

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Taking Time Off to Vote IS A RIGHT

This week, Laird E. in Alameda asks:

Q:“I work in construction, and I am often at the worksite for 10-12 hours each day. I often don’t get off work until after 7 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?”

A: Dear Laird,
Thank you for this very important question which affects many workers.  I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave. 

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that, “the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the job site for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work. 

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an
employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy.  A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Emile A. Davis is a managing attorney in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

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What is the Electoral College and why do we have one?

Written By: Christopher B. Dolan and Matthew D. Gramly

Donald from Belvedere asks:

Q: Is it possible for a candidate to become President of the United States without winning the nationwide popular vote?

A: Dear Donald,

Yes, it is possible. In fact, that has happened twice in the very recent past. Over the last seven presidential elections, the Republican candidate has only won the popular vote a single time, in 2004, yet has become President three times. George W. Bush lost the popular vote in 2000 but became President. He won the popular vote in 2004 and was re-elected.  Donald Trump lost the popular vote in 2016 by more than three million votes yet became President anyway. 

How could this be?  The answer is because we have something in the United States called the Electoral College.  We do not elect presidents based on who won the nationwide popular vote.  Candidates have to win the popular vote in individual states. Once they do, that state’s electors will cast ballots in favor of the candidate who won that individual state. Each state is awarded a number of electors equal to the number of members that state has serving in the House of Representatives as well as their two Senators.  Currently there are 538 electors; 100 for members of the U.S. Senate, 435 for members of the U.S. House of Representatives, and three representing Washington D.C., which is not currently a state. The electors are the people who actually cast binding ballots to elect each President.

It sounds convoluted and seems to be contrary to the ideal of “one person, one vote” but the Electoral College actually dates back to the founding of our nation and is enshrined within the Constitution.

During the late 1700s our founding fathers never intended for the election of a president to be left to whoever won the popular vote of the combined states or colonies that existed at that time. They did not trust the electorate to be wise in making this decision; our founding fathers viewed everyday Americans as unsophisticated, illiterate, and frankly, not smart enough or sufficiently emotionally stable to be trusted with choosing a president. Another concern was that the more populous states (in the north) would overrun the will of lesser populated states (in the south) with every election merely because more people who could vote lived in the north. Remember, back in the late 1700s the only Americans eligible to vote were white adult males who owned property. Women and slaves did not have the right to vote. There were simply more eligible voters in the north than there were in the south and the southern slave states feared a never-ending procession of presidents who were unsympathetic to owning slaves.

At the Constitutional Convention in Philadelphia, PA in 1803, James Wilson, representing Pennsylvania (a non-slave state), proposed that each president be elected by direct popular vote. James Madison (hailing from the slave state of Virginia) countered that the southern slave states would not agree to such a system because the almost 750,000 slaves in southern states at that time couldn’t vote. Describing this, Madison wrote, “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” He was complaining that southern states would not get a number of votes representative of their actual populations because slaves could not vote – even though those same states were the ones preventing slaves from being able to vote. The southern states, however, received credit for the slaves populating their states when calculating the population to determine the number of Representatives representing each state in Congress. In this calculation, slaves were counted as 3/5 of a person, which is stated in the Constitution. Thus the compromise to protect the slave states’ interests was reached and the Electoral College was formed.

Given this antiquated system, designed at least in part to preserve slavery in the southern states, it is entirely possible for a presidential candidate to lose the nationwide popular vote yet win the Electoral College. Here is how that works currently: Electors are not apportioned equally based on each population, largely because of the Senate. Each state gets two U.S. Senators, regardless of population, and thus at least two electors. Wyoming has a population of less than 600,000 people and has two Senators for a total of 3 electors. California has 40 million people, two Senators, and just 55 electors. 

The Electoral College is not representative of the actual electorate nor was it designed to be when it was formed over 200 years ago. When the Electoral College was created slavery was still legal and practiced by half the country, slaves could not vote, women could not vote. Many argue that it is time for the Electoral College to be abolished. In the age of Black Lives Matter it is difficult, at best, to argue that it should be preserved.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Matthew D. Gramly is a Senior Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

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