O.C.’s 7-vote election gap becomes a 7-lawyer case

Share via
Times Staff Writer

An attorney for Trung Nguyen said Wednesday that political rival Janet Nguyen “threw a fastball” past the Orange County registrar of voters during a recount that overturned February’s election for a seat on the Board of Supervisors.

In deciding not to verify election day votes cast electronically by recounting a paper audit, Janet Nguyen “rolled the dice” and hoped supervisors would quickly seat her as the 1st District representative, attorney Michael Schroeder said. In doing so, Janet Nguyen hoped a court would be less inclined to overturn the election by invalidating the recount, Schroeder said.

His comments came during the first day of a trial in which Trung Nguyen seeks to invalidate the recount, in part because the paper audit wasn’t counted, as his lawyers maintain the election code mandates. Janet Nguyen’s attorneys -- and Registrar Neal Kelley -- argue that another portion of the code allows the candidate requesting and paying for the recount to choose the method.


“They’re wrong, to be blunt about it,” said Phillip Greer, an attorney for Janet Nguyen. “Every vote was reviewed by the same standards.... There was nothing illegal about this election. Nobody gamed it. They are being the sore losers that they claimed us to be” when the recount was requested.

Wednesday’s hearing before Orange County Superior Court Judge Michael Brenner mixed bare-knuckled politics, a nuanced dissection of the law and a tutorial on how electronic voting machines work -- and sometimes fail. Seven attorneys representing both Nguyens and Kelley crowded the table before Brenner -- one attorney for each vote that separated the candidates. The Nguyens are not related.

Trung Nguyen’s attorneys focused on 124 so-called undervotes -- electronically cast ballots on which no candidate was selected -- saying that reviewing the paper audit could have shed light on the voters’ intentions and whether the electronic recording of those ballots was flawed.

“It seems to defy all logic that someone would travel to the polls on election day and not vote.... These machines make mistakes -- sometimes large mistakes,” Schroeder said.

Rebecca Mercuri, a forensic computer scientist and expert on electronic voting, testified that clusters of undervotes are a sign of a potential flaw with the electronic vote that could be attributed to electrical glitches in transmission and tabulation or even a static charge coming off a voter’s finger.

The paper trail isn’t foolproof either. Mercuri said printer malfunctions could leave a voter’s intent a mystery. But unlike the electronic vote, they could be challenged and scrutinized the way traditional paper ballots are.


“There is no way to know what 124 undervotes represent without looking” at the paper trail, she said.

Greer called that argument speculation.

Trung Nguyen’s legal team also called a handwriting expert who testified that four absentee ballots for Janet Nguyen appeared to have been filled out by the same person. Not only were the boxes next to her printed name filled out in a “consistent” manner, James A. Black said, but the name Janet Nguyen was signed -- unnecessarily -- in the margins by the same person.

His testimony led to more than an hour of discussion in which an attorney for Janet Nguyen challenged Black’s interpretation of consistency in the signatures letter by letter. Later, Leon Page, a county attorney representing Kelley, argued that state election code doesn’t prohibit people getting assistance in filling out absentee ballots -- as long as the voter signs his or her name on the envelope that serves as an affidavit of authenticity.

After five hours, Brenner brought the discussion back to the beginning -- the apparent contradiction in the election code over what constitutes a full recount.

“There appears to be something of an inconsistency here,” the judge said. “That seems to be the nut of the matter.”