County wins e-voting recount suit

By: DAVE DOWNEY - North County Times  28 September 2004

An Indio judge ruled Monday that Riverside County properly recounted the electronic ballots cast in March in the 1st District supervisorial race between three-term incumbent Bob Buster and challengers Linda Soubirous and Kevin Pape, a former Lake Elsinore mayor.

In ruling thus, Riverside County Superior Judge James S. Hawkins threw out of court Soubirous' legal challenge against the county's touch-screen system, at a time when electronic voting has come under increasing scrutiny throughout the nation.

Soubirous said she plans to appeal the decision.

"I believe his decision is in error," she said. "It just leaves voters at the mercy of elections officers and the manufacturers of these voting machines. I'm not against these machines. I just feel that the technology was here before all the security was in place."

Soubirous' lawyer, Gregory Luke, said he believes there is a strong probability of overturning Hawkins' decision.

"I'm confident that the plaintiffs have a strong legal case," said Luke, who works for a law firm in Santa Monica. "I'm not deterred by this."

Soubirous charged that the recount conducted after the March 2 election at her request was a farce because elections workers did little more than press a button that reprinted the original computer results.

Her lawyers said Riverside County should have checked election results not only against information stored on cards or cartridges that were pulled out of computer voting machines and fed through counting machines on election night, but also against information left in the voting machines themselves. They asked to see detailed logs listing every action every person took on the computer voting system election night.

Soubirous and her lawyers did not contend that the election result was wrong, but maintained there was no way to know whether the vote was accurately counted without checking the result against the additional information.

County officials maintained they did everything that was necessary to produce a reliable recount and that Soubirous was asking essentially for a second recount.

In her suit, Soubirous not only sought a directive allowing her to review more March primary records, but a precedent-setting ruling establishing a minimum level of information that would have to be consulted in all future recounts of electronic votes. She received neither.

Noting there was little established case law on the matter, Hawkins wrote in a three-page decision that state law "vests the county with the discretion to determine the nature of the 'relevant material' that 'may be examined as part of any recount,' and the county did not abuse its discretion." The judge added that Soubirous did not challenge the election within the required 30 days after the results were certified March 29.

Registrar of Voters Barbara Dunmore said she had been confident all along that the judge would return a decision in the county's favor.

"We're pleased with the decision, but not surprised," Dunmore said.

As a result of the decision, she said, residents and candidates likely will not see much change in the way the county conducts future recounts.

Mischelle Townsend, who was the registrar at the time of the recount, said "the judge came to the only decision that is appropriate. ... We did a thorough recount."

After all, said Townsend, who retired in July, the county gave Soubirous what she initially asked for.

"They had their choice whether they wanted to go off the (voting) machines or off of the cartridges, and they chose the cartridges," Townsend said. "After that was completed, they wanted another recount."

Luke said that Soubirous, throughout the recount process, asked to check results against information stored in the voting machines, which he said was less likely to have been corrupted than the cartridges and therefore a better yardstick for checking election results.

Buster, who won a fourth term in the primary and narrowly avoided a November runoff against Soubirous, the second-place finisher, said the ruling vindicated the county and showed there is reason to trust its touch-screen machines despite all the criticism leveled at the system in recent months.

Buster also said the decision showed the suit was unfounded.

"It had no merit whatsoever not even to the point of getting to trial," he said. "This was knocked out in the first round."

Soubirous filed suit July 16, a few months after the recount changed vote totals but not the result. Buster still was left with a few more votes more than the 50-percent-plus-one he needed to avoid a runoff.

The only votes that changed were cast on paper ballots. The county's lawyers took that to mean electronic voting is more accurate than paper. Soubirous said it meant the county did not conduct a true recount of the roughly two-thirds of all votes cast on touch-screens.