Judge Faults Registrar in City Recount Controversy

A judge ruled late last week that the response by the Alameda County Registrar of Voters to a 2004 recount request of a Berkeley initiative violated the California Election Code, the state constitution and “the fundamental right to vote.”

In a case that pivoted on the interpretation of which records are necessary in recounts of electronically tallied votes, Alameda County Superior Court Judge Winifred Smith wrote in her ruling that the registrar’s conduct violated “equal protection, due process, and individuals’ right to have their votes counted.”

The ruling comes more than two years after a pro-medical marijuana group, Americans for Safe Access, and three individuals requested a recount of the defeat by 191 votes of Measure R, a Berkeley initiative that would have liberalized the city’s medicinal marijuana laws.

The measure would have forced the city to provide medical marijuana dispensaries with licenses regardless of zoning restrictions.

When the plaintiffs requested a recount, the registrar refused to release the requested electronic information from voting machines, including redundantly stored vote records, machine logs of activity, documentation of custody of the machines and tests of machine accuracy, according to Smith’s opinion.

But in her ruling, issued April 12, Smith found that all the records requested by the petitioners were necessary to confirm the machines’ accuracy.

The parties will meet again May 4 to consider sanctions against the registrar for selling the roughly 400 voting machines—allegedly without fully preserving voting information—back to manufacturer Diebold amid preparations for the 2006 elections.

If upheld, the sanctions could result in fines and possibly a revote on Measure R, which was opposed by Mayor Tom Bates and the Berkeley City Council in 2004.

Alameda County Counsel Richard Winnie said the county sold the machines because they were not handicap accessible and could not provide a paper trail—mandated by a 2006 state elections law.

“I would hope that the judge would recognize that we acted in good faith (by copying the records),” Winnie said.

Gregory Luke, attorney for Americans for Safe Access and the suit’s three other plaintiffs, disagreed.

“In our system of laws, when you’ve got something that’s the subject of the court case, it’s completely verboten for you to send it out of state,” he said.

Winnie said the registrar let the judge decide which information was pertinent to a possible recount by releasing selected records to the petitioners and original or digital copies of the remaining records to the court when the lawsuit was filed in December 2004.

“This is a pretty novel question,” Winnie said. “We asked the court to determine what was relevant.”

Luke, who is the attorney for a similar lawsuit in Riverside County, said the case is about defending the state’s election code.

“This unfortunate culture of secrecy that has emerged over the past decade in connection with the use of new voting technologies (has led to an) unfortunate tendency of local voting officials to think that they can conduct elections behind closed doors,” he said.

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