MEDICAL MARIJUANA ELECTION MAY HEAD TO REVOTE

Judge Says County Allowed Ballot Data To Be Destroyed

An Alameda County judge said Friday she may void election results for
a failed 2004 Berkeley medical marijuana measure and order it returned
to the ballot because county election officials failed to hand over
data from voting machines.

Superior Court Judge Winifred Smith also indicated that she may force
county officials to pay attorneys' fees and reimburse a medical
marijuana group more than $22,000 for the costs it incurred during a
disputed recount shortly after the November 2004 election.

Smith accused county officials of coming up with a "shaggy dog story"
and of having "stonewalled for a very long time" on why they failed to
retrieve backup data from electronic voting machines, logs of activity
on the machines and other records.

Most of that information was destroyed when the county returned the
devices to their manufacturer, Diebold Election Systems, after the
measure's advocates had sued the county seeking access to the data.

"I'm sorry -- I have a very difficult time finding any real merit in
your argument that this was kind of a mistake," Smith told attorneys
for the county, who insisted during a hearing in Oakland that no one
had intentionally tried to remove data from the machines.

On Thursday, the judge issued a tentative ruling saying sanctions were
appropriate because the county had "engaged in a pattern of
withholding relevant evidence and (failed) to preserve evidence
central to the allegations of this case. That evidence has now been
determined to be irretrievable."

As soon as next week, Smith will issue a final ruling on whether there
will be sanctions and a new election, which could happen as early as
November 2008.

In April, the judge ruled that the county had violated the state
Constitution and election law in rejecting a request for the data from
Americans for Safe Access, a medical marijuana advocacy group that
sued the county shortly after the election. The country registrar has
argued in court papers that the data weren't relevant.

The plaintiffs had backed Measure R, which would have allowed medical
marijuana clubs to move into retail areas in Berkeley without public
hearings and also would have erased limits on the amount of pot that
patients could have. According to the county's certified results, the
measure lost, 25,167 votes to 24,976. The initiative lost again in a
recount.

Several weeks ago, the plaintiffs visited a warehouse in Plano, Texas,
to examine the Diebold machines that the county had returned to the
company in the middle of litigation without preserving the data inside
them.

Only 20 of the 482 machines used in the election still contained the
data being sought, and copies of the votes from 96 percent of the
machines had been destroyed, said Gregory Luke, an attorney for the
plaintiffs.

Jimmie Johnson, a Sacramento attorney representing the county, told
the judge that the county's failure to retrieve the data was a
"mistake rather than intentional" and didn't constitute a willful act
that should lead to sanctions.

He said county officials hadn't known all the intricacies of the
machines at the time but were better versed now.

"Isn't that their job?" Smith asked. " 'I didn't know -- I know now,'
just isn't helpful."

Outside court, Luke said, "When a citizen files a lawsuit to contest
an election result, it's Election Administration 101 -- and Law School
101 -- to collect all the records from that election and store them
safely until the election dispute is resolved."

He added, "If I were a citizen of Alameda County, I'd be deeply,
deeply troubled by this."