Medical marijuana election may head to revote
July 13, 2007
Henry K. Lee, San Francisco Chronicle
An Alameda County judge said Friday she may void election results for a failed 2004 Berkeley medical marijuana measure and order it returned to the ballot because county election officials failed to hand over data from voting machines.
Superior Court Judge Winifred Smith also indicated that she may force county officials to pay attorneys' fees and reimburse a medical marijuana group more than $22,000 for the costs it incurred during a disputed recount shortly after the November 2004 election.
Smith accused county officials of coming up with a "shaggy dog story" and of having "stonewalled for a very long time" on why they failed to retrieve backup data from electronic voting machines, logs of activity on the machines and other records.
Most of that information was destroyed when the county returned the devices to their manufacturer, Diebold Election Systems, after the measure's advocates had sued the county seeking access to the data.
"I'm sorry -- I have a very difficult time finding any real merit in your argument that this was kind of a mistake," Smith told attorneys for the county, who insisted during a hearing in Oakland that no one had intentionally tried to remove data from the machines.
On Thursday, the judge issued a tentative ruling saying sanctions were appropriate because the county had "engaged in a pattern of withholding relevant evidence and (failed) to preserve evidence central to the allegations of this case. That evidence has now been determined to be irretrievable."
As soon as next week, Smith will issue a final ruling on whether there will be sanctions and a new election, which could happen as early as November 2008.
In April, the judge ruled that the county had violated the state Constitution and election law in rejecting a request for the data from Americans for Safe Access, a medical marijuana advocacy group that sued the county shortly after the election. The country registrar has argued in court papers that the data weren't relevant.
The plaintiffs had backed Measure R, which would have allowed medical marijuana clubs to move into retail areas in Berkeley without public hearings and also would have erased limits on the amount of pot that patients could have. According to the county's certified results, the measure lost, 25,167 votes to 24,976. The initiative lost again in a recount.
Several weeks ago, the plaintiffs visited a warehouse in Plano, Texas, to examine the Diebold machines that the county had returned to the company in the middle of litigation without preserving the data inside them.
Only 20 of the 482 machines used in the election still contained the data being sought, and copies of the votes from 96 percent of the machines had been destroyed, said Gregory Luke, an attorney for the plaintiffs.
Jimmie Johnson, a Sacramento attorney representing the county, told the judge that the county's failure to retrieve the data was a "mistake rather than intentional" and didn't constitute a willful act that should lead to sanctions.
He said county officials hadn't known all the intricacies of the machines at the time but were better versed now.
"Isn't that their job?" Smith asked. " 'I didn't know -- I know now,' just isn't helpful."
Outside court, Luke said, "When a citizen files a lawsuit to contest an election result, it's Election Administration 101 -- and Law School 101 -- to collect all the records from that election and store them safely until the election dispute is resolved."
He added, "If I were a citizen of Alameda County, I'd be deeply, deeply troubled by this."
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