Before Bush v Gore there was the Diamond Bar Recount

A Contentious Time

The early years of Diamond Bar cityhood were contentious as those favoring strict limitation of development clashed with those favoring granting city council with more flexibility in planning land use. In 1992 and again in 1993, the City Council revised and adopted two General Plans presented by citizen advisory committees. Both rescinded by referendum, Diamond Bar’s early distinction included holding the state record for being incorporated without an accepted General Plan.

 “The City of Diamond Bar is almost 6 years old now…That doesn’t mean the City Council has to Act that way” was the headline on a Diamond Bar Caucus 1995 campaign flyer endorsing Bob Huff and Carol Herrera.

The Election

With conflicting visions of how the city should mature, the 1995 election cycle brought out 11 candidates vying for two city council seats, including one held by Phyllis Papen, who would not be re-elected.

Planning Commissioner Bob Huff surpassed the other candidates at the polls. The vote spread for the second seat between Carol Herrera and Don Schad was close, fluctuated, and involved litigation that did not end until May of the following year.

Herrera remembers on election night, she was down by six votes. The absentee ballots added in, she was ahead by 12.  Schad requested a recount. 

Herrera could have chosen a hand recount, but she was concerned with the additional cost and believed the recount by machine would provide equitable results. Each campaign provided witnesses to the recount. Gary Neely and Carolyn Elfelt were among the team representing Herrera. Thirteen observers from Don Schad’s election team, including attorney Al Perez, watched over the 24 county officials who conducted the recount at a cost of $1,782.   

On the day of the recount, Herrera and her husband were visiting their son Randy, then a sophomore at the U.S. Military Academy at West Point, for the Army-Navy game. City Clerk Linda Burgess called to let her know the L.A. County Registrar declared a tie vote.  

When the candidates requested a runoff election, Diamond Bar discovered state law requires that absent an existing local ordinance, the election must be resolved in the same manner as state elections ending in a tie would be: by a flip of the coin or drawing of lots.

At the December 19 council meeting, the names of Schad and Herrera separately inserted into two identical brown envelopes. To assure the blindness in choosing a winner, the sealed envelopes were shaken up within a Christmas bag. A trashcan became the receptacle of the masked materials. A pregnant deputy on duty was entrusted to hold the trashcan while Councilwoman Eileen Ansari reached in. The anonymous envelope opened, Carol Herrera was named as the newest Diamond Bar councilperson.

Assemblyman Gary Miller strode into the chamber just in time for Herrera to choose him to swear her into office.

The Election Goes to Court

Schad immediately sought to change events through litigation. At the heart of the lawsuits filed by would-be council member Schad were three ballots contested in the recount, one for Herrera and two for Schad. The registrar determined the ballot for Herrera was valid, while the two for Schad were not. Schad’s contention was that either all or none of the ballots in question should be counted. If he prevailed, then he won the election by one vote.

By January 18, 1996, the City of Diamond Bar had spent $6,323 defending the seating of Councilwoman Herrera. Superior Court Judge Robert O’Brien tossed Schad’s case out, noting the city clerk, named in the litigation, did not certify the election, the country registrar had.

Further litigation and threats of litigation followed. Though not named as a party to the litigation, Herrera had an interest in holding her seat, and retained private counsel separate from public entities.

When asked by the Tribune how she went about her duties, Herrera answered, “I do my job as though I will be here for four years.”

Revising his lawsuit, Schad proclaimed to newspapers that he was “Not a sore loser.”  By late spring, he reported the L.A. County Counsel sent a letter “threatening sanctions against him for filing a frivolous suit.”

In May, the same superior court judge threw out Schad’s second court clash to unseat Herrera. The council member retained not just her seat, but nearly $7,000 in private legal bills.

Lessons Learned

In her first election to city council, Herrera was surprised at the vitriol between environmental preservationists and those with an added concern for business climate. “A city campaign versus a school district campaign is more contentious," she said. Having served on the Walnut Valley Unified School Board for 16 years, she had planned to retire from public service when colleagues encouraged her to run. “The relationship between the city and school district had not gone well," she said. "They suggested I would be a good bridge.”

Hindsight being 20/20, Herrera would have paid the additional fee to have the ballots re-counted by hand rather than by machine. “I didn’t realize putting the ballots through the machine a second time would cause chads to fall out, which invalidated several of my ballots, causing me to end up in tie,” she said. 

Having come into office as “the trash can councilwoman,” she is keen on proactive legislation. Having legislation in place for events not necessarily anticipated, such as what to do in case of a tie election, protects the public interest.

“Cities need to be prepared," she said.