Metropolitan News-Enterprise


Tuesday, September 2, 2008


Page 3


C.A. Tosses Secretary of State’s Manual Ballot Count Procedures


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal on Friday threw out the post-election manual ballot tallying procedures Secretary of State Debra Bowen imposed on local elections officials last year.

Concluding that Bowen acted within her authority under California law when she decertified and immediately conditionally recertified voting systems in use throughout the state, and required compliance with the comprehensive system of procedures as a condition of recertification, Div. One nonetheless ruled that the system was a regulation, and therefore void because Bowen failed to comply with the state’s Administrative Procedures Act.

Bowen took the steps last August as part of a program intended to ensure the integrity of state elections after the University of California and a team of computer security experts completed a review of the security, reliability, and accessibility of voting systems approved for use in the state.

Issuing a stand-alone document entitled “Post-Election Manual Tally Requirements,” she directed local elections officials to manually tally 10 percent of randomly selected precincts in any contest where the margin of victory was less than one half of one percent, and to manually tally 10 percent of all precincts in which voters cast ballots in a multiple-jurisdiction contest—such as a statewide election—where the margin of victory within any jurisdiction was more than one half of one percent, but the overall margin was less than that number.

The County of San Diego and its registrar of voters—later joined by the counties of Kern, Riverside and San Bernardino as intervenors, and a number of other counties as amici curiae—sought an order voiding the requirements, arguing that the new requirements were both time and labor intensive, and imposed substantial financial costs.

However, San Diego Superior Court Judge Patricia Y. Cowett denied the request, reasoning that Bowen had not overstepped her authority, and that the secretary had not been required to comply with the APA because the requirements did not constitute a “regulation.”

On appeal, Justice Joan Irion agreed that Bowen had acted within her authority because state law granted her broad authority to conduct elections and enforce state election laws; to adopt regulations to do so; and to exercise specific authority over the use of voting systems.

Irion also concluded that the requirements did not conflict with existing manual tallying requirements in Elections Code Sec. 15360—requiring officials to manually tally votes cast in one percent of precincts chosen at random—because the statute is concerned with assuring the accuracy of the vote, and imposes no limit on manual vote tallying.

But Irion agreed with the counties that the requirements constituted a regulation requiring notice and opportunity for public comment prior to implementation under the Administrative Procedures Act, and reversed Cowett’s decision.

Rejecting Bowen’s argument that the requirements were not a standard of general application because three counties did not use voting systems that triggered the requirements, and two counties were subject to even more stringent requirements, Irion opined that the scheme applied “generally” because it effectively mandated “a comprehensive and virtually uniform scheme of manual ballot tallying” throughout the state.

She further concluded that the second prong of the test for determining whether the requirements constituted a regulation was “easily satisfied” because the requirements made “specific” the election laws Bowen was attempting to enforce and administer.

Irion explained:

“We would readily accept that the decertification of particular voting systems based on concerns about their reliability…would not constitute a regulation under the APA.... System-specific decertification, however, is a far cry from the sweeping manual tally rules established by the PEMT.

“The PEMT is not a simple decertification, or even a recertification of a particular voting system with conditions. Rather, the PEMT is a stand-alone document that, as a condition of use of virtually all types of voting machines employed in the state, requires local elections officials to comply with uniform postelection manual tally procedures.

“This type of agency pronouncement, unlike the decertification of a specific voting system, falls squarely within the definition of a regulation under California law.”

Justices Patricia D. Benke and Richard D. Huffman joined Irion in her opinion.

The case is County of San Diego v. Bowen, D052744.


Copyright 2008, Metropolitan News Company