Judge to rule on e-vote recount challenge within week

By: DAVE DOWNEY - September 9, 2004 North County Times

INDIO Attorneys for Riverside County and Linda Soubirous, a candidate who lost a March bid for county supervisor, squared off in a desert courtroom Wednesday over whether the county adequately recounted the electronic ballots cast in her three-way supervisorial race.

County attorneys are waiting to see if the judge will grant their request to throw the case out of court. Soubirous said she is hoping for a ruling that allows her to see backup election information from the March primary and establishes a minimum range of materials that must be inspected during recounts of future elections, in this rapidly evolving touchscreen voting age.

Riverside County Superior Court Judge James S. Hawkins listened to both arguments and said he would issue a decision within a week.

If an inspection of the backup information were to turn up discrepancies with the primary result, Soubirous said she would consider suing to overturn the March election. At the least, she said, after spending $8,500 so far in legal costs, she would appeal an unfavorable ruling that does not establish a minimum set of requirements for recounting electronic votes.

Meanwhile, county attorneys told the judge they needed to erase records of the primary vote stored inside the voting machines and on cards that were pulled out of the machines on election night for the tally. Attorneys said they needed to clear the machines and cards for the fast-approaching Nov. 2 general election, and transfer the primary vote information to compact discs for permanent storage.

Hawkins permitted the county to shift that information, starting Wednesday, provided Soubirous or her representatives is allowed to monitor the process.

Soubirous filed suit July 16, asserting that county elections officials did little more than "press the reprint button" when they retabulated the electronic votes cast in the three-way race between Soubirous, former Lake Elsinore Mayor Kevin Pape and three-term incumbent Supervisor Bob Buster.

The recount changed vote totals, but not the result. Buster still had a handful of votes more than the 50-percent-plus-one he needed to avoid a runoff in the November general election. Had Buster fallen below that threshold, he would have faced Soubirous, the second-place finisher in November.

The only votes that changed were ones cast by paper ballot, which county attorneys said showed the electronic vote is more accurate than the paper absentee and provisional-ballot vote. But Soubirous' attorneys say it only shows that the county did not truly recount the roughly two-thirds of all votes that were cast on touchscreen machines.

"You had your recount," Judge Hawkins said, while asking questions about the basis for Soubirous' case.

"No sir, we didn't," said Gregory Luke, a Santa Monica attorney representing Soubirous. "That's the whole problem."

Riverside was the first large county in the nation to go to touchscreen voting, buying 4,250 of the machines in time for the 2000 presidential election. This fall's election will be the county's 30th with the machines.

Despite Riverside County residents' familiarity with touchscreens, they are a new commodity in other areas. And reports of logistical problems in counties such as San Diego in March, coupled with growing fears nationwide about the systems' vulnerability to hacking and manipulation, have fueled efforts to tighten rules for touchscreens' use.

Secretary of State Kevin Shelley ordered that all electronic voting machines in California be equipped with paper printouts that, by 2006, will allow voters to check from behind a window to see if their ballots were recorded accurately. Those paper records also are to be stored and consulted in recounts.

But there will be many elections before then, Luke said, and voters need assurance that recounts will be conducted fairly before paper records of electronic votes become available.

For now, there are only electronic records. And, for the supervisorial recount, Riverside County rechecked the electronic information stored on the cards that were pulled out of voting machines on election night and then fed into a central computer to tally the results.

Luke said the county should have also rechecked the records of each individual voter's preferences still stored in the voting machines themselves. He said those records are less likely to have been tampered with and therefore more reliable. But he said the county refused Soubirous' request to check the election results against that information.

Luke said Soubirous and others who ask for recounts should be able to see logs detailing who handled voting machines on election night and every action that was taken on the machines.

But Santa Monica attorney Charles H. Bell Jr., arguing Riverside County's case before Judge Hawkins, said under current state law, the county's election chief has the discretion to choose which materials to consult or not review for recounts. And Bell said there is no case law that suggests voters have the right to demand to inspect every type of election record.

"What he (Luke) is trying to do is to create a free-wheeling, unhindered right of recount to all materials," Bell said.

And he added, "You don't have the right to recount a recount."