A World of Suspicion

Napa County supervisor appeals court decision of possible vote fraud

By Tara Treasurefield in the North Bay Bohemian  05 August 2004

Only a few months ago, Napa County supervisor Mike Rippey was at ease in a world based on trust. He assumed that the voting system was reliable, secure and accurate. But now, like thousands of other Americans for whom election results just don't compute anymore, he resides in a world of doubt and suspicion.

Rippey's sudden change of residence occurred soon after the March 2004 primary, when he lost his Fifth District supervisorial seat to challenger Harold Moskowite. Moskowite received 3,328 votes to Rippey's 3,220, winning by a margin of 108 votes. Debates about why he lost are meaningless to Mike Rippey, because he's convinced that he won and the election was stolen from him.

"I think the evidence is overwhelming that a crime was committed," Rippey says. To rectify the grave injustice that he believes has been done to him and to Napa County's Fifth District voters, Rippey challenged the March 2 election results in court. Though the judge ruled against him, Rippey is still fighting for a rerun of the election. "I'll go until I can't go any further," he says.

Rippey's attorney is Lowell Finley. In making Rippey's case, Finley stresses some 52 votes were very likely intended for Rippey but that he can't legally claim them; that 132 late absentee and provisional paper ballots mysteriously disappeared a few days before the final vote was tallied; and that 38 votes ostensibly cast for Rippey's opponent, Harold Moskowite, were actually marked by someone other than the original voter.

The first mishap occurred when someone in the Napa County Elections Department sent the Fourth District absentee ballot to 90 Democrats in the Fifth District. Fifty-two of them dutifully voted for the Fourth District incumbent Democrat supervisor, apparently not noticing that they had received the wrong ballot.

Napa County registrar of voters John Tuteur and his staff learned of the mistake three weeks before the election and contacted the residents of one street. They did not contact other voters who received the mistaken absentees, nor issue press releases or place announcements of the mishap in print or electronic media.

If those 52 votes had gone to Rippey, Moskowite's margin of victory would be 56 votes instead of 108.

In February, thousands of voters began returning absentee ballots to the Napa County Elections Department that were stored in unsealed boxes in unlocked rooms. On the election day evening of March 2, an optical scanner counted the absentee ballots, and the results were added to the electronic votes from the touch-screen voting machines.

The combined total of paper absentee ballots and electronic ballots was 2,900 votes for Moskowite and 2,848 votes for Rippey, placing Moskowite ahead by a margin of 52. These results weren't final, as the absentee and provisional ballots that came in on election day still had to be counted. Those last ballotsstill sealed in their envelopeswere stored in unsealed boxes in an unlocked storeroom.

On Friday, March 5, as elections staff processed the remaining paper ballots, Tuteur and two staff members told observers from the Rippey and Moskowite campaigns that there were 552 Fifth District ballots left to count. At the end of the day, election workers sealed the ballots in boxes and stored them in a locked room on another floor with an alarm system. But when Rippey supporters Linda Scott, a political consultant, and former Napa County supervisor Ginny Simms came to the Elections Office on March 9 to observe the scanner count of the 552 ballots, those security measures were no longer in place.

"When we walked into the office, those ballots were in a box with no lid and no seal," says Scott. "I asked John [Tuteur], 'Why isn't this box sealed?' He didn't answer me."

The count proceeded, and the results increased Moskowite's total to 3,109 and Rippey's to 3,059, a margin of 50 votes in Moskowite's favor. But there were problems. Although three election workers had said that 552 ballots were to be counted, the scanner tallied only 420 votes. "That's 132 missing," alleges Rippey. "Somehow they disappeared, accidentally or otherwise."

Though some voters may have left the supervisorial race blank, it's mathematically unlikely that 132 voters would have done so. In the election as a whole, the overall rate of "nonvoting" in the Fifth District was only 6 percent, and 6 percent of 552 ballots is only 33, not 132.

Moskowite's 50-vote margin after the March 9 count surprised election observers for another reason. When they had watched workers examine the ballots on March 5, they had counted at least 12 more votes for Rippey than for his opponent. But Moskowite's winning margin decreased by only 2 votes, to 50 votes.

"At that time, we knew that 52 people were disenfranchised [because they received the wrong absentee ballot]. They were all Democrats, all from Coombsville, Mike's strongest area of support. If anyone were to choose an area where Mike is strong, it would be the Dems in the Coombsville area," says Scott.

On March 12, Tuteur announced that a legally required hand count of 1 percent of the precincts had revealed that, due to a calibration error, the optical scanner missed some votes because it couldn't "see" certain types of ink. The scanner was recalibrated, and on March 17 and 18, all the absentee and provisional ballots from the election were recounted by scanner. The final certified statement of the vote showed 3,328 votes for Moskowite and 3,220 votes for Rippey, a winning margin of 108 votes, an increase of 58 votes over the 50-vote margin of March 9.

The extremely close and oddly fluid election results baffled Rippey and Finley, and they hired forensic document examiner David Moore to examine the optical scan ballots in preparation for the trial. Moore found that on 38 of the ballots, someone other than the original voter had added a vote for Moskowite. One tip-off was that the Moskowite votes were marked in a different type of ink than on the rest of the ballot. Another tip-off was that the 38 ballots were clustered together in the boxes.

"Someone went through the paper ballots, found those that were blank for our race and filled them in for Moskowite," Rippey alleges. What's more, says Finley, "We also contend that many more [fraudulent ballots] could have been proven if our expert had more time to thoroughly examine them all, and/or if the court had not twice denied our motion for a court-appointed expert to examine the suspect ballots for palm prints."

During the trial, it was revealed that records show a good deal of nonbusiness-hour activity at the Elections Department between March 12, when Tuteur announced that a total recount would be taken, and March 17 and 18, the dates of the recount.

The Elections Department has no video surveillance system and no alarm system, and it can be entered through any of four doors. Two of these doors are kept locked during nonbusiness hours, and both can be unlocked with the same key. In addition, an unlocked door connects the Health and Human Services Department and the Elections Department.

Before business hours on Tuesday, March 16, two Elections Department staffers, working separately and without observers, went through the opened ballots. The ballots were then left overnight in the unlocked Elections Department storeroom. Both employees admitted that they "over-marked" some ballots.

"Over-marking" is taking a pen and making a darker and more complete mark over the original mark made by the voter, to improve the odds that the optical scanner will pick up the mark. During the trial, Tuteur testified that he didn't know about the practice until sometime during the counting in the primary. Finley says, "Testimony was consistent that [over-marking] was done, that there were no policies or standards, that no supervisor approval was required and that election staff were not required to be working in teams when they did it. Under the guise of this practice," Finley continues, "a staff person could make an entirely new mark for one of the candidates in a race that voter had left blank."

Tuteur's office refused repeated requests for comments. Similarly, Moskowite referred the Bohemian to his public-relations consultant, Victor Ajlouny. In explaining Moskowite's victory over incumbent Rippey, Ajlouny reasons that "Harold Moskowite knocked on a vast majority of the doors, if not all the doors, in the district. He was out walking constantly."

Regarding problems with the election, he says, "Simply put: human error. I sat through much of the trial. There was a lot of innuendo and speculation. I'm sympathetic to the registrar because of all the budget crunches. . . . Every election I've ever heard of has had mishaps like this. Unless you get to a point where the election is so close, you never hear about the problems. It's just a little more focused because of the net result."

Napa environmentalist Lowell Downey has a different take on the outcome of the election. "A tremendous amount of money from special interests affected this election," he charges. "They got rid of Mike Rippey. I think it's a land-use group that has a tremendous amount of money."

Moskowite has a history of alleged wastewater abuse stemming from his winery operations. Ajlouny insists that Moskowite is not anti-environment, and that as supervisor of the Fifth District, he will have an open-door policy. "I don't think [that] just because people may not have voted for him means they can't communicate and work on issues together," he says. "If that were the case, we'd have problems from the presidency on down."

On Aug. 6, Lowell Finley will present the case to the San Francisco Court of Appeals. If the court agrees to take the case, oral argument is likely to be set sometime in the next week. In the meantime, the California secretary of state's fraud division is investigating the March 2 primary for possible criminal activity. The statute of limitations gives the office a year to seek misdemeanor charges and three years for felonies.

As he settles into the world he now inhabits, Mike Rippey's sense of what's required to make elections reliable, secure and accurate is deepening. "We have had some close elections in this county, and now I wonder if they were really that close," he says. "We'll be completely revamping how elections will be done here. This will take time, and I may not be part of it. But it needs to be done."