Metropolitan News-Enterprise


Tuesday, June 16, 2009


Page 3


Court of Appeal Upholds Injunction Requiring Election Materials Access


By STEVEN M. ELLIS, Staff Writer


Alameda County must make certain materials available to voters who question the validity of outcomes in future elections if “direct-recorded electronic” voting machines that do not provide a “paper trail” are used, the First District Court of Appeal has ruled.

The court yesterday ordered partial publication of Presiding Justice James Marchiano’s May 22 opinion for Div. One. The panel upheld an injunction sought by medical marijuana advocacy group Americans for Safe Access, who challenged the declared defeat of Measure R—which would have provided greater access to medical cannabis—on the Berkeley ballot in November 2004.

The court ruled that parties requesting a recount were entitled to disclosure of the county’s “redundant vote data” for DRE machines, chain of custody documentation and system access logs, audit logs, and log and accuracy test results under Elections Code Sec. 15630. The statute provides that requesting parties are entitled to access to all voted and unvoted ballots as well as “any other relevant material.”

The ruling leaves unpublished the portion of the opinion in which the court directed Alameda Superior Court Judge Winifred Y. Smith to reconsider an award of more than $875,000 in fees and costs to a Santa Monica law firm that successfully challenged the county’s refusal to release documents related to the use of its now-discarded electronic voting system.

The use of such machines is now prohibited by state law, and Alameda County switched in November 2006 to a system that uses optically scanned paper ballots to count more than 99 percent of the vote. Disabled voters have the option of using an electronic machine with a paper audit trail instead.

The firm of Strumwasser & Woocher represented Americans for Safe Access after the defeat of Measure R, which, among other things, would have allowed medical marijuana users to cultivate as many plants as they and their doctors believed necessary for their personal use, repealing a 10-plant-per-user limit imposed by the City Council.

Election officials initially certified that the measure lost by 191 votes, prompting ASA to demand a recount.

In accordance with the recount statute, which allows proponents of a recount to view the marked and unmarked ballots along with “any other relevant material,” ASA asked to see internal access logs and test reports that the group said would show whether DRE software was manipulated during or after the election, as well as documents reflecting the chain of custody of electronic data.

The county rejected the demand, and the recount reduced, but did not wipe out, the margin of defeat for Measure R.

ASA then filed suit seeking injunctive and declaratory relief, as well as a new election; the lawsuit was initially dismissed, but the Court of Appeal reversed, saying the complaint stated a cause of action and that the issue of whether the requested materials were relevant to the recount request had to be decided on the basis of evidence.

On remand, Smith largely sided with ASA, saying the group had a statutory and constitutional right to view the requested materials, and she permanently enjoined the county from refusing to produce similar materials as part of any future recount if requested by a voter under Sec. 15630.

The county appealed, but Marchiano wrote that the materials were “clearly relevant” under state law.

He explained:

“This issue is straightforward. Evidence Code Sec. 210 defines relevant evidence as “evidence…having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.

“It is factually undisputed that, in the absence of paper ballots, the only way to accurately determine the vote tally is to ensure that the vote tally of the DRE machines matches the votes actually cast. The requested materials are necessary for a determination that the DRE machines accurately recorded the votes cast and were not tampered with, for purposes of an accurate recount process.”

The justice then added that, “[t]he materials are the only way to determine a discrepancy between votes cast and votes electronically recorded,” noting that “[e]ven the Registrar admits that such a discrepancy would be ‘of concern’ to the accuracy of the vote tally.”

Justice Sandra L. Margulies and retired Marin Superior Court Judge J. Stephen Graham, sitting by assignment, joined Marchiano in his opinion.

In an unpublished portion of the opinion, addressing Smith’s grant of the fees sought by Strumwasser & Woocher, Marchiano said the panel was unable to determine whether the trial judge improperly “double counted,” that is, considered the attorneys’ special expertise in elections and constitutional law in determining both the lodestar amount and the multiplier.

On remand, he said, it would be appropriate for the judge to consider the fact that the fees will have to be paid by a public entity to a private law firm in setting the amount of any multiplier.

The case is Americans for Safe Access v. County of Alameda, A121390.


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