Proponents of Berkeley’s medical marijuana Measure R have filed a state lawsuit contesting the recount of the proposition.
The lawsuit charges that as a result of Registrar of Voters decisions surrounding the counting of computer votes, “voting in Alameda has devolved into an unverifiable, indeterminate, and secretive ritual.”
The lawsuit was filed by fax in California Superior Court in Oakland on Friday afternoon on behalf of Americans For Safe Access (AFSA)—a Berkeley based national medical marijuana advocate organization—and three named Berkeley voter plaintiffs: Donald Tolbert, James Blair, and Michael Goodbar. The defendants are County of Alameda and Brad Clark, the county registrar of voters.
Americans For Safe Access—one of the Measure R support organizations during last fall’s campaign—has taken a lead role in the Measure R fight now that the Yes On R Committee has begun gearing down its activities following the Nov. 2 vote.
The measure had proposed eliminating limits on the amounts of medical marijuana that could be possessed by patients or caregivers in the city of Berkeley. In addition, it would have allowed any of the three existing dispensaries to move anywhere within the city’s retail zones.
Santa Monica election rights attorney Greg Luke—who is representing the plaintiffs—said by telephone that the lawsuit was filed primarily to gain access to audit and backup records from the Nov. 2 voting contained in Diebold touchscreen voting machines. Luke said that without those records, it is impossible to tell whether or not the machines were tampered with, or whether the final tally represents an accurate count. Luke said that Measure R proponents had asked for those records from the Alameda County Registrar of Voters office as part of the recount procedure, but were refused.
Representatives of the Alameda County Registrar of Voters office could not be reached late Friday to comment on the lawsuit.
Proponents of Measure R requested a recount after the measure lost by 191 votes—25,167 to 24,976—in the Nov. 2 election.
The lawsuit was filed even before final results of the recount were released. However AFSA spokesperson Debbie Goldsberry said that while preliminary results of the recount show that Measure R yes vote had “narrowed the gap slightly, we don’t expect that there will be enough to overturn the results.”
But the manual recount—held over a two week period in a secure basement location in the Alameda County Courthouse—only involved the 28,700 paper ballots cast by Berkeley voters on Nov. 2. Another 31,500 ballots were cast by computer touchscreens. For those votes, the recount merely involved the Registrar of Voters computer giving back the same tally it gave on election night.
And that, says Luke, is the problem.
“The computer voting machines have three records by which the vote count is verified,” Luke said. “Without those, you do not have an accurate idea of what went on in the election.”
One of these records, Luke said, is called “redundant data,” the vote tally that remains in each computer voting machine while a duplicate copy of the tally is put on a storage device, to be transmitted to the main county computer for its official vote tally. Comparing the tally in the storage device transmitted to the main computer with the tally on the voting machine would determine if the vote totals were inadvertently changed in transfer, or tampered with.
A second series of records that the Measure R proponents requested were Diebold’s audit logs, a record of every transaction that occurred from the time the voting machines were prepared for the election to the time the votes were transmitted and tallied. A third record is a chain of custody records, showing who had access to the computers and the vote totals.
Luke said that providing access to these records is consistent with California law on recounts.
He said that the lawsuit did not ask for access to the source code that runs the Diebold voting computers, information which Diebold has refused to release on the grounds that it is proprietary information.
Measure R proponent Goldsberry said that attempts by AFSA monitors to observe the machine recount met with some resistance. On Friday, she said, observers were told that they could not be in the room with the computers while the recount was occurring, but had to observe through a window from another room. Goldsberry said that after a protest, the observers were allowed inside the room.
“There didn’t seem to be any standard as to how our observers were handled or where they were allowed to be, even during the manual recount,” Goldsberry said. “It seemed to vary, without reason, depending on which Registrar of Voters manager that was in charge at that moment. One of the problems seemed to be that this was the first time in a while that someone has requested a recount, and the Registrar’s office just didn’t seem to know how to handle it.”
Goldsberry said that the recount of the paper ballots showed problems with the Nov. 2 tally.
Goldsberry said that in 60 of Berkeley’s 88 precincts, the registrar’s office could not produce ballots for all of voters who signed up to vote in the Nov. 2 election. In most cases she said that the discrepancy was only one to four ballots but in one precinct, the count was off by 20. She said that a portion of the time during the recount was spent trying—unsuccessfully—to locate the missing ballots.
On Wednesday morning, a reporter observed between eight and 10 Alameda County election workers sifting through thousands of absentee ballots.
They were surrounded by hundreds of boxes of such ballots—400 boxes, according to Goldsbery—which filled metal cabinets, tables, dollies, and wall space in the basement counting area. Because the ballots were not sorted by city but were stored in batches of 500 in the order in which they were originally counted immediately following election day, workers had to flip through every absentee ballot cast in Alameda County.
It was a tedious process. At one point a worker sang out, “I found one,” and another worker answered, wryly, “You’re pretty lucky; isn’t that your second one in less than two hours?”
Luke, however, said that the lawsuit will not involve the recount of the paper ballots.