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Measure R Outcome Unclear, Vote Count Procedure Questioned: By J. DOUGLAS ALLEN-TAYLOR

Tuesday November 23, 2004

Berkeley’s medical marijuana Measure R—presumed defeated on election night—has been quietly but steadily increasing its percentage of the vote during Alameda County’s count of provisional and absentee ballots, and is now within striking distance of a possible victory. 

With at least one more round of vote tallies to go, the total for Measure R stands at 49.7 percent, up almost a full percentage point from the 48.8 percent total it was reporting on election night. Yes votes for Measure R now stand 270 behind No votes, a pickup of more than 600 votes since election night. The count on Measure R, as of Monday afternoon, was 24,749 yes to 25,019 no. 

In addition, because of charges of lack of access to the provisional and absentee ballot count, Measure R officials say it is likely that they will request a recount if their measure does not win. 

Unlike several other states, California does not provide by law for a mandatory recount if the difference in an election’s vote totals fall within one percent of the total votes cast. Recounts can be requested by any voter at any time, but the requesting party must pay for the cost of recount. 

In Alameda County, the Registrar of Voters office estimates that first-day costs of staff and other items would be approximately $3,000, with an approximate cost of $2,000 for each subsequent day the recounting takes place. However, Assistant Registrar of Voters Elaine Ginnold said that if the recount overturns the results of the election, the money is returned to the requesting party. 

Degé Coutee, campaign manager for Yes On Measure R, said the closeness of the vote, and a lack of access to the vote counting over the weekend, are reasons for concern. 

“Volunteers for Measure R were told numerous times by Registrar of Voters staff that they were going to be counting over the weekend,” Coutee said. “But when volunteers got there on Saturday, we were locked out of the courthouse. So they handled ballots, did things with ballots, and there was no public entry to where they were, which is a problem.” 

Assistant Registrar Ginnold, who could not be reached to respond to Coutee’s remarks, had said earlier that staff members have been in the process of counting paper ballots “that were too damaged to go through the scanner. Some of them were torn. So they need to be remade.” 

Coutee said the public has not been provided with an accurate notice of when the continued vote counting is taking place. 

The unexpected turn of events on Measure R added to a simmering list of Alameda County election controversies that refused to go away, including concerns about procedures that were used for Nov. 2 voters requesting paper ballots, and a questionable court settlement with the Diebold Elections Systems, maker of the county’s touchscreen voting machines. 

The Diebold settlement was announced shortly before the Nov. 2 election by Attorney General Bill Lockyer, who filed the fraud lawsuit in conjunction with the Alameda County District Attorney and the Alameda County Counsel. The suit alleged that the Texas-based company gave false information to the state and counties about its electronic voting equipment.  

In the March primary election, Diebold machines in Alameda and San Diego malfunctioned, causing voting and vote tabulation to be delayed. Had the attorney general and Alameda County prevailed, the county could have received enough money to scrap the Diebold machines in order to purchase new ones from another company. 

Instead, under the settlement, Alameda County will keep the Diebold machines, but Diebold must upgrade them and provide better security. In addition, the $2.6 million settlement includes a $475,000 payment to Alameda County, as well as $500,000 to the UC Berkeley Institute of Governmental Studies to fund research aimed at training poll workers to use the machines. 

However Jim March, the Sacramento activist who originally filed the Diebold lawsuit—it was later taken over by the state and Alameda County—called the settlement “premature.” 

“This settlement will shut down a major avenue of investigation before evidence starts trickling in,” March said. The computer system administrator had hoped that information obtained in the discovery phase of the lawsuit would allow citizens to get a better grasp on how computer voting machines are affecting—or even altering—elections. 

Meanwhile, state voter activists were critical of Alameda County’s decision in the Nov. 2 election to require all citizens requesting paper ballots to fill out a provisional ballot envelope. Provisional ballots are normally used only when voters’ names do not appear on the registration list of the polling places where they go to vote. Such voters are allowed to fill out a ballot, which is then placed in a sealed envelope on which the voter is required to provide identity information. The voter’s ballot is counted only if the Registrar of Voters later determines that the voter was eligible. 

The exact number of provisional ballots cast in Alameda County in the Nov. 2 election—including the number of provisional ballots that were issued merely because an eligible voter requested a paper ballot—will not be known until the Registrar of Voters office runs a computer report sometime after the Nov. 30 certification of the vote. 

Assistant Registrar of Voters Ginnold called the paper ballot, provisional ballot decision “no more than an accounting mechanism” to keep track of the number of voters. 

“In the interest of simplicity, [the Alameda County Registrar of Voters office] mandated that all paper ballots go into envelopes. That was our decision, and the Secretary of State agreed with it,” she said. 

Merced, San Bernadino, and Shasta were other counties with computerized voting machines in California that required all paper ballot voters to fill out provisional ballots. 

Kim Alexander, president of the nonprofit independent California Voter Foundation, which monitors elections across the state, said her organization was very disappointed that several counties chose to treat paper ballots as provisional votes. 

“Number one, it required voters to go through an extra step of filling out forms, providing personal information that might have led some voters to be concerned that their ballot might not be secret,” she said. “And secondly, provisional ballots are treated as secondary ballots. They’re treated as questionable ballots... We felt that those voters should not be relegated to second class status simply because they chose to cast their ballot on paper.” 

Alexander also disputed the contention that using one provisional ballot system for all paper ballots made the process simpler. 

“It not only created more work for the voters, but it created more work for the poll workers and more work for the county in processing those ballots,” Alexander said. “There’s more work for a poll worker processing a provisional ballot than simply to give out a paper ballot and insert it into a locked ballot box. They have to make sure the envelope is filled out completely and correctly. On the back end, when the elections department processes these provisional ballots, it takes quite a bit of time. When someone counts a provisional ballot, the elections department has to be very careful to ensure that the voter is a valid voter and did not cast a ballot in some other fashion in the election, and therefore be able to vote twice. Typically, verifying provisional ballot means checking the signature on the provisional ballot envelope against the voter’s registration card signature. So it’s a very time-consuming, labor intensive process.” 

But the major uncertainty in local elections continued to be Berkeley’s Measure R. 

If the final count brings it victory, the voter initiative would eliminate limits on the amounts of medical marijuana that could be possessed by patients or caregivers. In addition, Measure R would allow existing dispensaries to move anywhere they chose in the retail zones of the city, without City Council or the zoning department being able to put limits on those areas.) The measure originally would have allowed an unlimited number of marijuana dispensaries in the city, but in between the time the measure was put on the ballot and the Nov. 2 vote, the Berkeley City Council imposed a limit on pot dispensaries in the city, allowing no more than the three currently operating in the city. 

Berkeley City Councilmember Kriss Worthington, who introduced a medical marijuana reform law to the council earlier this year, said that if Measure R fails, he plans to reintroduce the idea to council “using the basic core ideas.” Worthington’s original measure would have increased the allowable number of marijuana plants from 10 to 72 per person, the same number allowed in Oakland. 

It was the defeat of Worthington’s proposed city law by the council that led to the introduction of Measure R to Berkeley’s voters. Worthington, who did not participate in the drafting of Measure R, said that the measure would have passed easily without the inclusion of a provision that mandated the automatic licensing of medical marijuana facilities in any zoning district of Berkeley that allowed retail sales. The councilmember said his informal survey of Berkeley voters showed that “many voters had problems with that provision.” 

In the only other local election that had any possibility of being changed by the continued vote counting, Berkeley school board incumbent John Selawsky maintained a comfortable plus-600 vote margin over his closest challenger, Karen Hemphill. Selawsky was 680 votes ahead of Hemphill on election night—that margin has now closed only slightly, to 618. 

At last week’s School Board meeting, Selawsky declined the opportunity to declare victory, saying that because the vote was so close, he wanted to wait until all the votes were counted. But with the newly-released totals, the possibility that Hemphill could catch Selawsky’s totals now appears remote, at best. 

The new totals were released by the Alameda County Registrar of Voters office late Friday afternoon. The registrar’s office plans to release at least one more new vote count total tonight (Tuesday, Nov. 23). By law, final certification of the vote must be done by Tuesday, Nov. 30, and county registration officials say that if the vote counting is not finished on Nov. 23, then new—and final—vote totals will be released on Nov. 30. 

County election officials did not release an exact total of the votes that remain uncounted, but estimated that it was “a few thousand.” And there was no estimate of how many of those votes would come from the city of Berkeley. 

Despite the use of touch-screen computer voting machines that promised quick results, Berkeley could see as much as 30 percent of its votes counted in the four weeks between the Nov. 2 election and the Nov. 30 certification date. Roughly 28 percent of the total vote in the Berkeley School Board and Measure R races was counted after Nov. 2. Oakland did not fare much better, with nearly 25 percent of the vote on violence prevention Measure Y being counted after election day. 

Alameda County’s still-to-be-counted ballots include absentee ballots which were turned into polling places on election day, provisional ballots cast by voters who registered too late for their names to show up on their precinct’s registration rolls, and paper ballots cast by voters who chose not to use the computer voting machines. These ballots are being counted by computerized vote scanners.