ASA SUES ALAMEDA COUNTY OVER “MEASURE R” RECOUNT

Story by Mark Miller

The recount of Berkeley's Measure R, the Patient's Access to Medical Cannabis Act of 2004, officially ended on January 10 with the Alameda County Registrar of Voters declaring the ballot initiative failing by 166 votes.

Measure R recount was funded by the Berkeley Alliance for Patients after the November vote was declared “too close to call.” At that time, Measure R trailed by 191 votes.

Measure R would have relaxed zoning laws to permit medical cannabis cooperatives to operate in retail areas without public hearings, set up a peer review committee to oversee operations at Berkeley's pot dispensaries and replaced the city's limitations on the amount of cannabis a patient could legally possess (currently 10 plants).

While the outcome of Measure R recount has been decided, the controversy rages on over the controversial Diebold computerized election machines and the questionable recount methods subsequently employed by Alameda County election officials. The matter will be eventually settled in court.

"It's a complete failure of checks and balances in our democracy," comments Debby Goldsberry, director of Americans for Safe Access, the medical-marijuana activist group that oversaw the recount.

"The issue isn't the final numbers, it's that there's no recount with these machines," says attorney Gregory Luke of Los Angeles, who's representing ASA in addition to three Berkeley voters. "The fundamental design problem of the Diebold machines has never been solved. The elections code allows for any voter to demand a public recount to review all the ballots, but the problem is that the machines don't allow for a recount."

Luke claims that flaw is Diebold's use of the DRE (Direct Recorded Electronic) voting system; similar to how ATM machines operate. DRE converts touch-screen votes into electrons, and because the system does not produce anything to print, with no paper trail available for recounts and audits, such systems are susceptible to altered vote totals due to intentional or accidental computer "backdoors" or "bugs."

There are two security features of DRE machines; first, so-called "redundant data," which is a recording of each vote copied to a diskette inside the machine. Second, the audit logs record each machine keeps of everything that happens to it (when it's turned on and on).

This is the relevant data that ASA requested from the Alameda County Registrar, but were denied access to the info. Luke says Alameda County officials likely refused based on a recount in Riverside County following a March 2004 election in which that county's registrar denied access to voting records because those seeking the recount failed to show fraud and error in the election.

"It's putting the cart before the horse," Luke notes. "They were denied the tools to show fraud and error because they hadn't shown that there was fraud and error. It's the people's right to have an open and transparent voting system, but to have this, you need to recount the materials that are relevant."

Diebold is a controversial election machine manufacturer; CEO Walden O'Dell, and one of its directors, W.R. Timken, are both heavy contributors to the Republican Party. It was Diebold machines that malfunctioned in Volusia County, Florida during the 2000 election that contributed to the confusion over whether or not George Bush or Al Gore had won the critical state. Previously, a group of computer scientists hacked into the software running Diebold machines to demonstrate any hackers seeking to change vote totals with relative ease could penetrate their system.

A lingering question is why these particular machines were used in the first place. The California secretary of state had previously decertified the problematic AccuVote TSX Diebold model. Those counties (including Alameda) who were using the TSX agreed to allow for provisional votes (those whose names don't appear on the official voter registration list).

The problem here, according to Goldsberry, is that the provisional votes turned in were either not entered correctly and others were left completely blank. She attributes it to a series of errors by those working at the polls.

Goldsberry also alleges that Alameda County Registrar Elaine Ginnold refused to count obvious "yes" votes during the recount process, which Goldsberry and other members of ASA observed. Goldsberry contends that Ginnold was personally angered at ASA for having to go through the recount and that this affected the registrar's judgment. Goldsberry maintains that the loss of provisional votes and the "yes" votes that Ginnold dismissed easily cost Measure R passing.

For her part, Ginnold told the San Francisco Chronicle that the registrar's office "did not consider them [redundant data and audit logs] relevant for the record."

ASA filed a lawsuit on December 30 challenging the actions of county election officials' handling of the electronic voting machine portion of the recount. The first hearing in the suit will be in Alameda County Superior Court on March 2.

Goldsberry expects that the court will grant ASA access to the DRE logs and is hoping such a decision could set a precedent in future recounts. She's also confident that a revamped Measure R, specifically regarding the licensing and zoning law issues, will result in victory in a future election, this time leaving any notion of a recount as "irrelevant data."