Berkeley pot bill put on 2008 ballot after judge nullifies results

September 28, 2007

Chris Metinko, Contra Costa Times (CA)

An Alameda County Superior Court judge has nullified the results of a hotly contested 2004 election because of mishandling of a recount by Alameda County election officials, and she ordered Berkeley's Measure R -- a citizen-sponsored medical marijuana initiative -- back on the ballot for a re-vote in 2008.

Judge Winifred Smith upheld a tentative decision from July, when she sided with an organization of medical marijuana advocates who sought to contest the narrow defeat of the marijuana dispensary initiative that year.

The initiative failed by 191 votes, or less than half a percent of the ballots cast.

It is only the second time in California legal history that a new election has been ordered without clear evidence of ballot tampering or substantial tabulation errors by elections officials.

"It is something that's very uncommon now, but I think it will become very common," said Bev Harris founder of Black Box Voting, a nonprofit voting watchdog group of Smith's decision. "We, as a society, got sold a bill of goods with equipment that did not work properly."

Smith found that the medical marijuana group never could exercise its right to contest the election because county officials barred access to electronic voting machine records needed to show whether the ballots were recorded accurately.

Within days after voters went to the polls and voted on Measure R, Alameda County's then-Registrar of Voters Bradley Clark charged Americans for Safe Access a little more than $22,600 to recount electronic ballots on the county's touch-screen voting machines, made by Diebold Election Systems Inc.

State elections law says that petitioners for an election recount get to see more, including all ballots plus "all other relevant materials."

But Clark denied the group's requests for the machines' internal audit logs, which could have showed malfunctions or changes in the machines' operation on Election Day, plus internal backup copies of the electronic ballots and chain-of-custody records showing who had access to the machines.

Yet Alameda County attorneys did not settle the lawsuit that Americans for Safe Access filed, and county elections officials continued to deny release of the records well after Clark left for a state job and then retirement in Hawaii.

"I think this shows county officials that procedures are put in place for a reason," Harris said. "It's important to follow those procedures."

Smith ruled Tuesday that Alameda County officials have engaged in "a pattern of withholding relevant evidence and failing to preserve evidence" necessary to conduct a recount of the hotly contested measure, evidence the judge found "to be irretrievable due to (the county's) mishandling" of the Diebold voting machines.

Alameda County counsel Richard Winnie said the county does have the right to file an appeal, but would not say if one was forthcoming. Alameda County officials have stated in the past it will conduct any re-vote at no expense to the city of Berkeley.

Reach Chris Metinko at 510-763-5418 or

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