Judge Calls For New Vote After Data Loss

July 15, 2007

Bobby Carroll, Daily Californian

OAKLAND—A re-vote on a 2004 medical marijuana initiative appears likely after a judge issued a tentative ruling Thursday stating that electronic election data lost by Alameda County were critical to discerning the legitimacy of the Measure R voting results.

In her statement issued Thursday, Alameda County Superior Court Judge Winifred Smith mandated a new vote for Measure R in the next Berkeley general election and also required that Alameda County cover the cost of the new vote, the expenses of a previous recount and plaintiff attorney fees.

Jimmie Johnson, an attorney representing Alameda County, said the loss of data was not intentional.

“Voting data (were) lost because of a misunderstanding of the data systems, so there was no will nor intent to obscure evidence on the part of the Registrar,” he said.

But Smith said the county’s lack of education concerning the voting machines and system was in itself “willful and intentional.”

“Isn’t that their job?” Smith said.

The handling and representation of the Measure R voting data has been the subject of much debate since 2004, when the initial results were released.

Officials originally reported that Measure R, which would have eliminated limits on the amount of medical marijuana possessed by patients or caregivers, lost by fewer than 200 votes.

Americans for Safe Access, an advocacy group in support of medical marijuana therapeutics and research, requested a recount in December 2004. The organization’s field coordinator Rebecca Saltzman called the county’s recount “a sham.”

“The county gave us the run-around,” she said. “They would tell us that they had certain information, but then there would be a delay, and then they would just say that they had lost it altogether.”

After the 2004 recount, Americans for Safe Access, along with several Berkeley voters, filed a lawsuit against the county and the county’s registrar’s office claiming it had insufficiently stored and provided the election data.

The county failed to retrieve much of the requested election data during the course of the trial, said the advocacy group’s attorney Gregory Luke.

“The county didn’t even take the most minimal measures to protect the results while the trial was going on,” Luke said.

County officials and attorneys from both parties travelled to Texas in June to inspect the Diebold electronic voting machines in question.

According to Johnson, 96 percent of the voting data had been overwritten, but the remaining 4 percent showed no trace of vote tampering,

Luke said that this did not exonerate the county, as his clients’ original intent was to compare and use data from a large number of machines and because he felt the voting system itself was not tamper-proof.

“The Diebold machine stores votes in a format you can fiddle around with,” Luke said.

Contact Bobby Carroll at bcarroll@dailycal.org.

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