We just finished another Bay Area recount and this one was particularly ugly, proving the adage that politics is a full-contact sport. Accusations, founded or not, flew from all camps. It did not need to be this way. It should not have been this way.
We have represented clients in dozens of recounts across the state in our careers. Sometimes recounts change the results and sometimes they do not. This recount in the 16th Congressional District, covering parts of Santa Clara and San Mateo counties, did in fact change the results, and could impact who will go to Congress.
What was originally thought to be an exact tie for second place, which would have pitted former San Jose Mayor Sam Liccardo against both state Assemblymember Evan Low and Santa Clara County Supervisor Joe Simitian in a three-way November runoff, will now instead result in a head-to-head battle between Liccardo and Low. After the approximately 180,000 ballots were recounted over three weeks, it turns out that Low actually beat Simitian by five votes.
This recount was necessary to ascertain the will of the voters. But it almost did not happen because our elected leaders have refused to pass legislation requiring automatic recounts in close elections. This recount demonstrates why their refusal must end.
Current law requires private funding of recounts. This of course favors the well-heeled and special interests who can come in and pay for a recount for their favored candidate. This recount cost north of $300,000.
California’s county registrars of voters offices do a great job counting the votes — but the system is far from perfect. We do not mean to imply any criticism of the government workers who count and then sometimes recount the votes. They get it right 99.99% of the time, an A+ in school. But occasionally, a perfect score is necessary to ascertain the true will of the voters.
The reasons for miscounted votes is not at all nefarious. Even though voting machines have become more sophisticated and registrars’ offices have become better at verifying signatures, a small number of ballots are miscounted in every election. If a voter has crossed out his or her original vote, the machine may read the corrected ballot incorrectly. The same may happen if a voter writes an editorial comment or doodles on the ballot. There are myriad reasons why a vote may be incorrectly rejected or miscounted.
Some elections end up in ties or separated by a handful of votes during almost every election cycle. But rarely do candidates or concerned citizens marshal the resources to pay for a recount — and they shouldn’t have to. Given the likelihood that machine or human error has counted at least some votes incorrectly, the government should step in when the results are incredibly close. Twenty-three states and Washington, D.C., provide for automatic or mandatory recount; California should do the same.
What we fear, yet hope is not the case, is that lawmakers have purposely resisted automatic recounts because it ultimately gives them, and the special interests who ushered them into office, more power over the outcome. As the system works now, unions, businesses, wealthy individuals and advocacy groups can choose to pay for a recount when the results are razor thin as a way of playing the odds that their favored candidate will take office. Candidates typically do not have the resources to do so — again, the recount here cost over $300,000 — and regular citizens never do.
To help determine a legal threshold, statisticians can figure out exactly when a recount is likely to change the results and therefore should trigger an automatic government-funded recount: When the difference between the candidates is 0.25%? One-tenth of one percent? Certainly when it’s a tie.
Whatever that number is, fair and reliable elections require an automatic recount when we all know that the original results are not perfectly accurate. What just transpired in Congressional District 16 proves this point.
Jim Sutton is the past president and Matthew Alvarez is the current vice president of the California Political Attorneys Association. They represented Jonathan Padilla, the requester of the recount in Congressional District 16.