Suit forces a look at election code flaws
The battle over February’s contested Orange County Board of Supervisors election heads to court today, with a judge expected to name a winner by week’s end.
At stake is not only whether Janet Nguyen or Trung Nguyen will become the next 1st District supervisor representing central Orange County. The case before Orange County Superior Court Judge Michael Brenner is also likely to set a legal precedent by addressing a contradiction in the state’s election code on recounting ballots cast electronically.
Trung Nguyen won the Feb. 6 election by seven votes, a victory overturned after a recount requested by Janet Nguyen swung the vote to seven in her favor.
Trung Nguyen sued, contending, in part, that there wasn’t a full recount because the paper records of election-day electronic votes weren’t counted by hand, as one section of the election code requires. Registrar of Voters Neal Kelley allowed Janet Nguyen to choose how the electronic vote was counted based on another section of the code that leaves the decision up to the candidate paying for the recount.
The mixed messages shed light on a pitfall in the voluminous rules governing elections in California -- a tome that has been added to and altered through the years like a house that has been repeatedly remodeled.
And like such a house, some of the changes make sense. Some don’t.
“The election code is mammoth,” said Rick Hasen, an expert on election law and a professor at Loyola Law School in Los Angeles. “The election code is full of contradictions.”
The code’s lack of clarity provoked numerous lawsuits during the 2003 recall of Gov. Gray Davis and the election of Arnold Schwarzenegger. Most famously, it led to 135 gubernatorial candidates after the secretary of state set a low threshold to make the ballot -- 65 signatures and a $3,500 fee -- based on his reading of the code.
“When the question was asked ‘Who qualifies in a recall?,’ the code said use the usual rules,” Hasen said. “When you turned to that section, it said these rules shall not apply in a recall. They were written for primaries.”
How Judge Brenner rules is likely to have ramifications beyond deciding the contest between the Nguyens, unrelated Republicans who stunned the political establishment by beating candidates endorsed by the local Democratic and Republican parties.
“There’s an important issue here,” said David Dill, a Stanford University computer science professor and founder of the Verified Voting Foundation, which lobbied for paper audit trails. With an electronic and paper vote count, “what has legal primacy in a situation like this?”
Dill believes a paper audit is essential to back up potentially “untrustworthy” electronic records. That said, he believes forcing candidates seeking recounts in close elections to pay for an expensive manual recount of the electronic vote could have a chilling effect.
“I don’t want to discourage recounts,” Dill said. In cases such as the Nguyen race, in which a recount reverses an election by a razor-thin margin, the state should pay for a manual count of the paper audit to verify it, he said.
Judge Brenner has said he expects to decide the case by Friday. Orange County supervisors have pledged to seat whomever he names the winner at their meeting Tuesday, regardless of whether the loser appeals.
In his suit, Trung Nguyen also contends that some ballots were improperly disallowed because voters wrote comments, drew flowers or made other marks on them. Most of the votes disallowed were from Vietnamese-language ballots.
Brenner has faced a similar issue before. Two years ago, he upheld the November 2004 election victory of San Diego Mayor Dick Murphy, rejecting thousands of votes cast for write-in candidate Donna Frye because people didn’t fill in the oval on ballots next to her name.
Brenner acknowledged that although voters clearly intended to cast their ballots for Frye, they didn’t follow the rules.
“He took a very literal reading of the election code,” Hasen said. “He said that intention could not trump” how ballots should be filled out. “The judge is likely to be equally literal in this case.”