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Lit_Match

Judge Chides Officials on Blocked Vote Recount
07-14-07|San Mateo County Times|By Ian Hoffman

Faced with accusations of lying and destroying public records, Alameda County officials instead protested to a state judge on Friday that they were victims of misunderstandings, bad decisions and their own ignorance of the multi-million-dollar machines used to conduct elections.

Superior Court Judge Winifred Y. Smith questioned those defenses over their handling of a hotly contested election recount, at one point terming them "shaggy dog stories" and "stonewalling." She appeared poised to order stiff penalties against the county, including conducting a 2004 Berkeley election all over again at county expense.

If she does, it will be only the second time in California legal history that a new election has been ordered without clear evidence of ballot tampering or substantial tabulation errors by elections officials.

On Thursday, the judge filed a proposed ruling strongly favoring an organization of medical marijuana advocates who sought to contest the narrow defeat of a marijuana dispensary initiative that year. The measure failed by 191 votes, or less than half a percent of the ballots cast.

But Smith found that the medical-marijuana group never could exercise its right to contest the election because county officials barred access to electronic voting machine records needed to show whether the ballots were recorded accurately.

"The evidence necessary to determine whether petitioners' election contest is meritorious has been lost or destroyed due to (Alameda County's) failure to fulfill its obligation to preserve the information that was reasonably available to them at the time of the recount, and at the time of the filing of this litigation," Smith concluded in her tentative ruling.

Within days after voters went to the polls and voted on Measure R, Alameda County's then-Registrar of Voters Bradley Clark charged Americans for Safe Access just over $22,600 to recount electronic ballots on the county's touchscreen voting machines, made by Diebold Election Systems Inc.

State elections law says petitioners for a election recount get to see more, however -- all ballots plus "all other relevant materials."

But Clark denied the group's requests for the machines' internal audit logs, which could have showed malfunctions or changes in the machines' operation on Election Day, plus internal backup copies of the electronic ballots and chain-of-custody records showing who had access to the machines.

Diebold engineers installed those features as insurance for voting machine accuracy and reliability, and a state court of appeals agreed that those records were "relevant" to a recount.

Alameda County Counsel Richard Winnie said punishing the county now is "really unfortunate because the registrar was in the position of interpreting a piece of elections code that never had been interpreted before" for electronic voting.

"This is a new electronic age, and it was difficult for him to interpret what was required," Winnie said.

Yet Alameda County attorneys did not settle the lawsuit that Americans for Safe Access filed, and county elections officials continued to deny release of the records well after Clark left the county for a state job and retirement in Hawaii.

After more than a year of litigation, county officials handed 13 thick envelopes of what they said were voting-machine audit logs over to the court under seal. Current Alameda County elections chief Dave Macdonald swore in an affidavit that the audit logs could not be released to the public without revealing secret e-voting data and software clues that could help hackers manipulate votes.

But when the attorney for Americans for Safe Access looked inside the envelopes, they didn't contain internal audit logs, just ordinary poll tapes that show the votes recorded on each machine. Pollworkers print them out at the end of every Election Day, and they include vote counts, a time/date stamp and sometimes a greeting, but no software code or secret data.

County officials and attorneys assured the medical-marijuana group that the machines' internal voting data had been preserved, even after the county purchased a new voting system and Diebold bought back all of the county's touch screen voting machines. But it turned out that the county did not copy the internal records first, and by the time lawyers for the county and Americans for Safe Access went to Diebold facilities in Plano, Texas, to download them, all but 2 percent of the records had been overwritten and lost.

Smith heard both sides Friday and left without ruling. In her tentative ruling Thursday, however, she found that Alameda County officials up to the present "have engaged in a pattern of withholding relevant evidence and failure to preserve evidence central to the allegations of this case. That evidence has now been determined to be irretrievable."

She said it was "reasonable" for the county to return the $22,600 recount fee, pay all of Americans for Safe Access' legal bills and hold a new election on Measure R during the next general election. County officials said Friday that they are prepared to pay for that election in November 2008.