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In what would appear to be the most stinging rebuke possible to the conduct of the Alameda County Registrar of Voters Office in the November 2004 Berkeley Measure R Medical Marijuana initiative election, a California Superior Court judge has ordered that a new Measure R election be held in November of next year, and that Measure R proponents be reimbursed for litigation and recount costs. 

“Respondents County of Alameda and [Registrar of Voters] Dave MacDonald have engaged in a pattern of withholding relevant evidence and failing to preserve evidence central to the allegations of this case,” Judge Winifred Y. Smith wrote in her Sept. 25 order. “That evidence has now been determined to be irretrievable due to respondents’ mishandling of the DRE (direct electronic recording) machines.” 

“This case demonstrates the importance of strong judicial oversight of elections,” said Gregory G. Luke of Strumwasser & Woocher, attorneys for the plaintiffs in a prepared statement. “Government has naively embraced electronic voting technology, accepting soothing pronouncements by Diebold and others that their technology is foolproof. As it has been revealed that the technology is dangerously vulnerable, local election officials have been trying to reassure the public that their own oversight will protect the integrity of the ballot. Now we see that not only are the machines vulnerable, but some election officials cannot be counted on to protect the vote.” 

The Measure R sponsoring committee, Americans for Safe Access, was the plaintiff in the case, as well as three Berkeley residents who co-sponsored the measure, James Blair, Michael L. Goodbar, and Donald Tolbert. Defendants included Alameda County, former Registrar of Voters Bradley Clark, and the City of Berkeley.  

Smith’s order grew out of the hotly contested November 2004 election in which a group called Americans for Safe Access put a measure on the Berkeley ballot after the Berkeley City Council voted to impose limits on pot dispensaries in the city. Measure R proposed eliminating limits on the amount of medical marijuana that could be possessed by patients or caregivers. In addition, it would have allowed existing dispensaries to move anywhere within the city’s retail zones. 

In the vote, which was held using Alameda County’s old Diebold touchscreen electronic voting machines, the measure lost by 191 votes, 25,167 to 24,976. 

Measure R proponents requested a recount in December 2004, asking that the new count be done using the internal counting mechanisms and tally logs of the individual Diebold machines used in the elections. Instead, the county registrars office only allowed a recount of the tally printouts. Critics of DRE voting machines have said that if a miscount or improper count is the result of internal problems within the machines, that miscount will be printed out on the tally sheets, and simply recounting the tally sheets themselves will not reveal the internal errors. 

The Superior Court ruled that after the Measure R proponents filed their lawsuit, county election officials should have preserved the Diebold machines in case the court ordered an internal recount. 

However, when Alameda County ceased using the Diebold DRE machines and switched to a different system, county election officials sold the machines used in the 2004 election back to Diebold. According to Smith’s order, county officials “apparently returned the DRE units to … Diebold … without taking any precautions to preserve the data on the machines. The County acknowledged in discovery responses that the individual DRE units had generated and stored audit logs and redundant vote data, and that such data was on the individual DRE units at the time of the recount and thereafter. The County also admitted in discovery that it did not copy, upload or transmit the data from the individual machines to any data storage medium or location before transferring the machines to Diebold.” 

While Judge Smith has ordered the Measure R election be held again, the text of the measure when it appears on the ballot in November of next year may differ from the text of the original November 2004 measure. Because so much time has passed since the original election, and the medical marijuana situation may have changed in Berkeley, the court ordered the City of Berkeley to provide it with any proposed modifications to the measure by October 19. The court noted, pointedly, however, that “substantive changes to the text of the measure are not appropriate and should not be suggested.”