Berkeley Election Nullified Based on Misconduct by Officials

September 26, 2007

, Bay City News Service

A judge has nullified the results of a Berkeley medical marijuana ballot measure in 2004 because of what she said was misconduct by Alameda County election officials.

In an order issued on Wednesday that incorporates most of a tentative ruling she issued on July 12, Alameda County Superior Court Judge Winifred Smith said Berkeley's Measure R should be placed back on the ballot for a re-vote at the next general municipal election, which will be in November of 2008.

Smith also ordered that the county refund $22,000 that Americans for Safe Access had to pay for a recount of the election results as well as some legal fees for the group's lawyers.

Smith said the Alameda County Registrar of Voters office engaged in a pattern of withholding relevant evidence and failed to preserve evidence necessary to conduct a recount of the election measure.

Smith said the evidence was irretrievable due to the county's mishandling of the voting machines it used.

Americans for Safe Access backed Berkeley's Measure R, which would have made it mandatory for the city to issue permits to organizations qualifying as medical marijuana dispensaries regardless of zoning.

It also would have established a peer review committee in order to certify new medical marijuana dispensaries and raised the amount of growing and processed marijuana that would legally be in the possession of medical marijuana users and cannabis clubs in Berkeley.

The measure, which needed approval by a simple majority of voters, lost by 191 votes in the Nov. 2, 2004, election.

Americans for Safe Access asked to see the copies of votes redundantly stored in the voting units, the audit logs from those machines, the results of logic and accuracy system tests and chain-of-custody records for system components.

The group says those records would have shown any discrepancies in tests of the voting machines before the election, any breakdowns on election day, any software changes made during or after the voting and any discrepancies in the handling of the PC cards used as electronic ballot boxes.

Americans for Safe Access then filed suit asking that the county be compelled to follow the law and produce materials it believes are necessary to confirm the accuracy of votes and detect potential fraud or error.

At a hearing July 13, Gregory Luke, the group's attorney, said the county should be sanctioned for surrendering custody of the voting machines used in the 2004 election back to Diebold Elections Systems Inc., the maker of the machines, without first preserving the copies of the votes and the audit logs stored inside.

Luke said it's "election administration 101" to preserve all records when a challenge is filed to an election.

And he said it's "law school 101" to save all documents after a lawsuit is filed against you.

Jimmie Johnson, an attorney for Alameda County officials, said the loss of records was "a mistake and wasn't intentional."

But Smith questioned the competence and sincerity of Alameda County officials at the hearing in July.

Smith said if former Registrar of Voters Bradley Clark, who handled the 2004 election, wasn't aware of all the records contained in the county's voting machines, "he didn't educate himself" and "it sounds like a willful violation to me" not to turn over all the records that were requested.

As for being knowledgeable about the voting machines, Smith asked, "Isn't that his (Clark's) job?"

Smith added, "It's a scary thought that they were using machines and didn't know what they were doing."

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