How One CA County Clerk Stopped Prop 37′s Oversight Recount

Published on Dissident Voice (first on BRAD Blog), by Brad Friedman, February 9, 2013.

What happened last November in California’s Prop 37? Is it really possible that progressive California doesn’t want Genetically Engineered Foods to be labeled as such? According to the reported results of that election, that would seem to be the case. But did Californians really vote against such labeling?  

Unfortunately, thanks to a lack of overseeable public hand-counts on Election Night, and a gaping weakness in the state’s otherwise liberal “recount” law, we’re unlikely to ever know for certain.

A weeks-long investigation by The BRAD BLOG into the months-long attempted effort to confirm the results of the Prop 37 ballot initiative last November, serves to highlight not just the weakness in California “recount” law, but also the notion that paper ballots, secretly tallied by optical-scan computers, are just fine, since, as the knee-jerk saying goes, “we can always count the paper ballots by hand afterwards if there are any questions about the results.”

The fact is: no we can’t. As our investigation reveals, election officials have the ability to stop an attempted “recount” dead in its tracks, by simply charging contestants anything they like for the effort. They are able to price such oversight beyond the means of most citizens, and are even doing so in apparent violation of state election code and regulations, as we found in Fresno County, CA last month during an attempted citizen oversight campaign of Prop 37 results.

But that election was not the only one where an attempt to examine paper ballots to assure accuracy of the secret computer tallies has been stymied by officials in the Golden State. The matter is rife for abuse and continues to frustrate Election Integrity advocates, even as both the CA legislature and the CA Secretary of State have done little to correct the situation.

Democracy only available to high-rollers: … //

… Blocking oversight for the 2006 Special U.S. House Election in San Diego: … //

… Prop 37 oversight blocked by Fresno County: … //

… Violations of election code, regulations and state clerks’ recommendations: … //

… Not Just Fresno: … //

… Why No Cost Standards?

“I believe that certain Registrars have misapplied the Elections Code and Secretary of State’s instructions about allowable recount expenses,” says Maa. “I do believe that the California Legislature, Secretary of State, State Board of Equalization or State Auditor should review the costs associated with recounts to better understand the inconsistencies across the State of California. As our State does not have a mandatory trigger for an automatic recount in the case of a close contest, requesting a recount remains the primary strategy to audit the certified results.”

So what has the state Legislature, or CA Secretary of State Debra Bowen (D), done to try and solve the problem or make the system more fair and accessible for average citizens?

Since taking office in 2006, Bowen’s work in bringing first-of-its-kind independent oversight to the electronic voting systems used in CA, via her landmark Top to Bottom Review of all such systems, was both laudable and key to improved security for the easily-hacked, oft-failed systems used in CA and all other states in the union. But little has been done to ensure private citizens (voters!) — with concerns about the secret vote-tabulation systems still in use across all 58 counties in the state — can verify the accuracy of those systems.

We asked Bowen’s office for comment about the seemingly exorbitant estimated costs for hand counting in Fresno versus other counties, as well as the similarly exorbitant costs estimated for the CA-50 Special Election in San Diego in 2006.

“The secretary of state’s office could not speak to what the costs are from county to county,” Bowen’s spokesperson Shannan Velayas told The BRAD BLOG. Velayas included a 2008 letter [PDF] highlighting the Secretary’s support of AB 2959, a state bill that year which would have required Registrars to provide a voter requesting a recount with an itemized estimate of costs associated with conducting it.

“This measure provides additional transparency so voters are better informed about the costs associated with a recount,” Bowen said in the letter.

The bill, however, did not call for standardized pricing and still allowed Registrars to set largely any pricing they wanted. It passed unanimously in both the state Assembly and Senate before being vetoed by then Governor Arnold Schwarzenegger (R) who wrote in his veto message that the bill “imposes an unnecessary mandate on elections officials. Recounts are requested in a scant few elections and the proponents have failed to demonstrate any abuse on the part of elections officials estimating recount costs.”

Some of those who have attempted recounts disagree with the former Governor about a lack of “abuse on the part of elections officials estimating recount costs.”

(Unfortunately, after responding to previously queries, Bowen’s office did not respond to our request for comment after we detailed the specific violations of state elections code seen in Fresno’s estimated costs for Recount Board workers. We’ll update if her office offers comment.)

Maa suggests that solutions to the problem “might include a standard price per ballot recounted, requiring the Registrars to provide a better estimate of recount costs upfront, and standardizing the total recount fees within a reasonable range across counties.”

“A candidate or recount requester should not be disadvantaged in one county relative to a candidate/ requester in a neighboring County where the recount fees can be an order of magnitude less expensive,” he said, citing another recent attempted “recount” in a race for the San Francisco Board of Supervisors which was “cancelled after the recount requester was informed of the very high startup and daily costs for the recount by the San Francisco Elections Office.”

Not all “recounts” are the same, Maa observed. “I was pleased to note in reviewing the costs across California counties yesterday that recent recounts have been held that were relatively inexpensive, and of one recount that reversed the initial outcome resulting in a refund of all of the recount monies deposited by the requester.”

Unfortunately, that’s not the case in every situation, and an election official who wishes, for any reason, to keep a count from going forward has the complete capacity to do so. And that’s here in California, with our liberal “recount” laws. Attempts at citizen oversight of computerized tabulation systems in other states is likely even much more difficult if not impossible in many cases.

For his part, though the results of Prop 37 can no longer be confirmed for accuracy, Courbat is working with a member of the state legislature in hopes of introducing a future bill that might address the problem. Standardizing costs for such counts, as Maa suggests, would be a very good place to start.

“Citizens need ‘cost containment’ of recount costs to ensure every citizen, regardless of his/her economic status, can exercise the basic democratic right to a recount,” Courbat says. “And it SHOULD be a big deal for crying out loud, it is the last line of defense in maintaining the democratic operations of our republic.”

Until such a bill is signed into law — and until Democracy’s Gold Standard of fully transparent, precinct-based hand counts are in place, allowing for full citizen oversight on Election Night — elections in California and most of the rest of the nation, are still an exercise in faith and trust in secret vote tallies and the officials who run them. That hardly seems the way to run the “world’s greatest democracy”.
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