CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/26/2023 1

Preclearance for a Special Election 

Buell v. Monterey County 

(Jeremy Fogel, N.D. Cal. 5:10-cv-1952) 

A federal complaint alleged that polling-place consolidations and 

the date of the election had not been precleared for a special election to fill a vacancy in the state senate, as required by section 5 of 

the Voting Rights Act for a county overlapping the senate district. 

By the time a three-judge district court met to hear the case, the 

special election had been precleared. 

Subject: Election dates. Topics: Poll locations; section 5 

preclearance; three-judge court; enjoining elections; intervention. 

On May 6, 2010, voters filed a federal complaint in the Northern District of 

California’s San Jose courthouse to challenge special-election procedures 

planned to fill a vacancy in California’s senate.1

 The plaintiffs claimed that 

the date of the election and the limited number of polling places planned for 

it had not been precleared pursuant to section 5 of the Voting Rights Act, as 

required for elections in Monterey County.2 At the time, the senate district 

and Monterey County overlap.3

The special election was necessary because President Obama appointed 

Ellen Tauscher, a member of Congress, to be under secretary of state for 

arms control and international security.4 On November 3, 2009, Lieutenant 

Governor John Garamendi won a special election for her seat.5 On April 26, 

2010, California’s legislature confirmed Governor Arnold Schwarzenegger’s 

appointment of Abel Maldonado to replace Garamendi.6 That left Maldonado’s seat in the state senate vacant, which the governor could fill either by 

special election or by consolidating the election with the regular June 8 pri1. Complaint, Buell v. Monterey County, No. 5:10-cv-1952 (N.D. Cal. May 6, 2010), D.E. 

1 [hereinafter Buell Complaint]; see Amended Complaint, id. (May 13, 2010), D.E. 24; see 

also Bob Egelko, Dems Sue to Halt Election for Maldonado Seat, S.F. Chron., May 8, 2010, at 

C2. 

2. Buell Complaint, supra note 1; see Voting Rights Act of 1965, Pub. L. No. 89-110, § 5, 

79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 (requiring preclearance of changes to voting 

procedures in jurisdictions with a certified history of discrimination and requiring that preclearance disputes be heard by a three-judge district court). 

3. Senate Districts, web.archive.org/web/20100428055427/www.legislature.ca.gov/legislators_ 

and_ districts/districts/senatedistricts.html (fifteenth district). 

4. See Dan Walters, 2 Vacancies Give Governor Opportunity, Sacramento Bee, June 1, 

2009, at A3. 

5. See Joe Garofoli, Democrat Wins Easy House Victory, S.F. Chron., Nov. 4, 2009, at A1; 

Lisa Vorderbrueggen, Garamendi Easily Defeats Surprisingly Tough GOP Rival, San Jose 

Mercury News, Nov. 4, 2009, at 4B. 

6. See Patrick McGreevy, Maldonado Takes Office as Lieutenant Governor, L.A. Times, 

Apr. 27, 2010, at 6; Torey Van Oot, Maldonado Wins Senate Confirmation as Lieutenant 

Governor, Sacramento Bee, Apr. 27, 2010. 
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2 Federal Judicial Center 10/26/2023 

mary and November 2 general elections.7 The governor chose to go special: a 

June 22 first round and an August 17 runoff.8

The court assigned the case to a magistrate judge,9 but the plaintiffs 

sought reassignment to a district judge.10 The court reassigned the case to 

Judge Jeremy Fogel11 because of his experience in 2003 with section 5 litigation.12 On the case’s second day, the plaintiffs moved for a temporary restraining order.13 On May 10, three voters moved to intervene as defendants.14

On May 12, Judge Fogel granted intervention,15 set a hearing for May 

20,16 and asked the circuit’s chief judge to designate a three-judge district 

court to hear the section 5 claim.17 “Pending the hearing, the County is restrained from sending any absentee ballots to voters registered in Monterey 

County until Section 5 preclearance has been obtained or until further order 

of the Court.”18 At the hearing, the U.S. Department of Justice announced 

that it had precleared the special election.19 The three-judge court deter7. See McGreevy, supra note 6. 

8. See Laith Agha, Special Election Likely to Cost County $500K, Monterey Herald, Apr. 

28, 2010, at A1; Kurtis Alexander, Special Election on Aug. 17, San Jose Mercury News, Apr. 

28, 2010, at 5B; Egelko, supra note 1. 

9. Initial Case Management Order, Buell v. Monterey County, No. 5:10-cv-1952 (N.D. 

Cal. May 6, 2010), D.E. 3. 

10. Declination, id. (May 6, 2010), D.E. 4. 

11. Reassignment Order, id. (May 6, 2010), D.E. 7. 

Tim Reagan interviewed Judge Fogel for this report at the Federal Judicial Center on August 2, 2012. Judge Fogel was the Center’s director from October 3, 2011, through September 

14, 2018. Federal Judicial Center Biographical Directory of Article III Federal Judges, www. 

fjc.gov/history/judges; see Supreme Court Press Release, July 25, 2018, www.fjc.gov/sites/ 

default/files/07.25.18-Press%20Release-FJCAnnouncement.pdf (announcing General John 

Cooke as Judge Fogel’s successor).

12. Interview with Hon. Jeremy Fogel, Aug. 2, 2012; see Temporary Restraining Order, 

Oliverez v. California, No. 5:03-cv-3658 (N.D. Cal. Aug. 15, 2003), D.E. 20, 2003 WL 

22025009 (concerning the holding of a special recall election); Temporary Restraining Order, Salazar v. Monterey County, No. 5:03-cv-3584 (N.D. Cal. Aug. 15, 2003), D.E. 20, 2003 

WL 22025010 (concerning the moving of a ballot-initiative election from a primary election 

to an earlier special recall election). 

13. Temporary-Restraining-Order Motion, Buell, No. 5:10-cv-1952 (N.D. Cal. May 7, 

2010), D.E. 8. 

14. Intervention Motion, id. (May 10, 2010), D.E. 14. 

15. Order, id. (May 12, 2010), D.E. 19. 

16. Order to Show Cause, id. (May 12, 2010), D.E. 21 [hereinafter Buell Order to Show 

Cause]; see Larry Parsons, Hearing Set on Election Suit, Monterey Herald, May 13, 2010, at 

A4. 

17. Letter, Buell, No. 5:10-cv-1952 (N.D. Cal. May 12, 2010), D.E. 22; see Order, id. (May 

19, 2010), D.E. 32 (chief circuit judge’s designation of a three-judge district court). 

18. Buell Order to Show Cause, supra note 16, at 4. 

19. Notice, Buell, No. 5:10-cv-1952 (N.D. Cal. May 20, 2010), D.E. 36; see Bob Egelko, 

Special Election for Senate Seat Vacated by Maldonado OKd, S.F. Chron., May 21, 2010, at 

C7. 
Preclearance for a Special Election 

Federal Judicial Center 10/26/2023 3

mined on the following day that the plaintiffs, therefore, were not entitled to 

immediate injunctive relief.20

This case did not get as much public attention as a section 5 case seven 

years previously involving the recall of Governor Gray Davis and election of 

Schwarzenegger as a replacement.21 For the state-senate case, a regular courtroom could be used, and the circuit-judge member of the panel participated 

by video conference.22 The court’s and the county’s experience with the earlier case helped to make this case run more smoothly.23

The governor’s party won the special election.24 Judge Fogel approved a 

voluntary dismissal of the case on September 27.25

20. Order, Buell, No. 5:10-cv-1952 (N.D. Cal. May 21, 2010), D.E. 37; see Kurtis Alexander, Special Election for Senator OK’d, Monterey Herald, May 22, 2010, at A2. 

21. Interview with Hon. Jeremy Fogel, Aug. 2, 2012. 

22. Id. 

23. Id. 

24. See Robin Hindery, Laird Concedes Senate Election, Monterey Herald, Aug. 19, 2010, 

at A1. 

25. Order, Buell, No. 5:10-cv-1952 (N.D. Cal. Sept. 27, 2010), D.E. 49.