MARIJUANA INITIATIVE WILL BE ON 08 BALLOT

An Alameda County Superior Court judge has nullified the results of a
hotly-contested 2004 election due to mishandling of a recount by
Alameda County election officials, and ordered Berkeley's Measure R
- -- a citizen-sponsored medical-marijuana initiative -- back on the
ballot for a re-vote in 2008.

Judge Winifred Smith upheld a tentative decision from July where she
sided with an organization of medical marijuana advocates who sought
to contest the narrow defeat of the marijuana dispensary initiative
that year. The initiative failed by 191 votes, or less than half a
percent of the ballots cast.

It is only the second time in California legal history that a new
election has been ordered without clear evidence of ballot tampering
or substantial tabulation errors by elections officials.

"It is something that's very uncommon now, but I think it will become
very common," said Bev Harris, founder of Black Box Voting, a
nonprofit voting watchdog group, of Smith's decision. "We, as a
society, got sold a bill of goods with equipment that did not work properly."

Smith found that the medical-marijuana group never could exercise its
right to contest the election because county officials barred access
to electronic voting machine records needed to show whether the
ballots were recorded accurately.

Within days after voters went to the polls and voted on Measure R,
Alameda County's then-Registrar of Voters Bradley Clark charged
Americans for Safe Access a little more than $22,600 to recount
electronic ballots on the county's touch-screen voting machines, made
by Diebold Election Systems Inc.

State elections law says petitioners for an election recount get to
see more, including all ballots plus "all other relevant materials."

But Clark denied the group's requests for the machines' internal audit logs.

Yet Alameda County attorneys did not settle the lawsuit that
Americans for Safe Access filed and county elections officials
continued to deny release of the records well after Clark left the
county for a state job and then retirement in Hawaii.

"I think this shows county officials that procedures are put in place
for a reason," Harris said. "It's important to follow those procedures."

Smith ruled Tuesday that Alameda County officials have engaged in "a
pattern of withholding relevant evidence and failing to preserve
evidence" necessary to conduct a recount of the hotly contested
measure, evidence the judge found "to be irretrievable due to (the
county's) mishandling" of the Diebold voting machines.

Alameda County Counsel Richard Winnie said the county does have the
right to file an appeal, but would not say if one was forthcoming.
Alameda County officials have stated in the past it will conduct any
re-vote at no expense to the city of Berkeley.