Friday, January 18, 2008
C.A. Upholds Result of Recount in Orange County Supervisor Race
By STEVEN M. ELLIS, Staff Writer
State election law allows an individual to ask for a manual recount of paper ballots while relying on the electronic records stored by computerized voting machines to tally electronic ballots, the Fourth District Court of Appeal ruled yesterday.
Rejecting an argument by Trung Nguyen that the recount of the disputed Feb. 6, 2007 special election for a vacant Orange County supervisor seat was invalid because electronic votes were not recounted manually, Div. Three affirmed the ruling of Orange Superior Judge Hugh Michael Brenner that Janet Nguyen won the election.
Trung Nguyen had initially been certified the winner in the special election to fill an unexpired term by a margin of seven votes over Janet Nguyen. Janet Nguyen requested a manual recount of the paper ballots, but opted to have electronic ballots recounted by downloading data from the voting machines—a less expensive and less time-consuming method than counting the paper printouts from inside the machines.
The recount resulted in Janet Nguyen beating Trung Nguyen by a margin of seven votes, and the registrar certified the result on Feb. 26, 2007, making Janet Nguyen the winner.
Trung Nguyen then alleged that Sec. 15627 of the Election Code does not permit the recount of paper ballots in one manner and electronic ballots in another, and that Sec. 19253 requires that the internal printouts be used for any recount. As a result, he contended, the recount was invalid and he should be declared the winner based on the initial vote count.
At trial, Brenner rejected Trung Nguyen’s arguments, holding that the recount was conducted properly and that Janet Nguyen remained the winner, albeit by only three votes.
On appeal, Presiding Justice David G. Sills similarly rejected the arguments as unpersuasive.
“There can be no doubt that, in a recount, paper ballots may be recounted manually while electronic ballots may be recounted electronically,” he said.
Even if Trung Nguyen’s statutory analysis had been correct, Sills wrote, “two undisputed facts require us to affirm the judgment in Janet Nguyen’s favor.”
Noting that Trung Nguyen had not presented any evidence that a manual recount of the electronic ballots would have made any difference in the results, and that he had deliberately waived his right to order the electronic ballots be recounted manually, Sills concluded that there was no way that the court could legally declare Trung Nguyen the winner in the case.
“Simply put,” he wrote, “there is no substantial evidence that he received the highest number of legal votes in the election…. The most that Trung Nguyen might achieve in this appeal is a judgment annulling the February 2006 election and holding a new one, but that is relief he manifestly does not seek.”
Philip B. Greer, who represented Janet Nguyen, said that he hoped the decision “removes any question regarding the election and how we handled it.”
Leon J. Page, who represented the Orange County Registrar of Voters, said that his client was pleased that the court had upheld its actions.
Counsel for Trung Nguyen said he had not read the opinion.
Sills was joined in his opinion by Justices Richard M. Aronson and Richard D. Fybel.
The case is Nguyen v. Nguyen, G038705.
Copyright 2008, Metropolitan News Company