Judge scolds county for loss of files

May 04, 2007

Ian Hoffman, ANG Newspapers

A state judge chided Alameda County officials Friday for giving away the only internal electronic records of a contested election to Diebold Election Systems Inc., after an appeals court ordered the county to preserve the records.

"Nobody thought outside the box?" Alameda County Superior Court Judge Winifred Smith said to lawyers for the county. "Why was that not a wise, not even a wise, but a reasonable thing to do?"

The judge's scolding came as a medical marijuana group, Americans for Safe Access, sought penalties against the county for getting rid of its touch-screen voting machines last summer without first downloading the electronic ballots and internal logs related to contested Measure R, a marijuana dispensary initiative Berkeley voters rejected in 2004.

Smith heard from both sides Friday and did not say when she might rule.

What Alameda County did with those 420 touch-screen voting machines could end up reaffirming the results of Berkeley's election or, if discrepancies are found in the internal electronic data, result in a replay of that election in 2008, plus the payment of financial penalties by Alameda County.

Deputy County Attorney Nancy Fenton said county officials and Diebold have identified most of the machines by serial number and were confident of identifying the rest in a few days. They plan to download the internal memory and show the data to representatives of Americans for Safe Access.

But it is possible that more than two years and six elections after Measure R and the filing of a lawsuit challenging its results, the internal electronic data sought by Americans for Safe Access as a check on the official vote count has been overwritten and is gone forever.

If so, Alameda County could face legal sanctions, ranging from reprimand to fines.

The origins of the case and the discarding of evidence are rooted in the conviction by two successive Alameda County elections chiefs that they could conduct an election recount as they wished and be the sole determinant of what was relevant for a recount. Former Registrar of Voters Bradley Clark and current Registrar Dave Macdonald argued that a single version of the electronic ballot stored on removable and rewritable PC cards were the only official ballots needed for a recount.

Americans for Safe Access, through elections attorney Gregory Luke, argued that other data was needed — such as internal access logs to show no one had manipulated the software during or after the election, other copies of the ballots stored inside the machines and chain-of-access records to ensure no one changed the ballots in the PC cards, among other things. Alameda County denied those records for two years and after a state appeals court sided with Americans for Safe Access, gave away the machines containing the electronic ballots and internal logs. Smith ruled last month that state elections law requires elections officials to reveal a broad array of "relevant materials" including those sought by Americans for Safe Access.

"In my 14 years of practicing elections law, I have never encountered an elections official who thinks it's OK to simply throw out elections materials while there is a lawsuit pending," Luke told Smith on Friday.

Luke heard that the county had given the machines to Diebold but had been assured by county lawyers a year ago that the data had been downloaded and preserved. "That was a 100 percent, Grade A falsehood," he said.

The county's Fenton said Macdonald gave the machines to Diebold because he "felt it was his decision as to what was relevant. ... It was simply determined by the person who was running the recount that these materials were not relevant to that recount."

Fenton and Winnie said the county has been acting in good faith.

"For sanctions to be valid, (the actions) have to be willful and intentional," Fenton said. "We have tried to be cooperative."

Contact Ian Hoffman at ihoffman@angnewspapers.com or (510) 208-6458.



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