ALAMEDA COUNTY BUNGLED 2004 E-VOTING, JUDGE SAYS

Ruling May Force An Election Do-Over Because Officials
Wouldn't Reveal Key Materials For A Recount

Faced with accusations of lying and destroying public records, Alameda
County officials instead protested to a state judge Friday that they
were victims of misunderstandings, bad decisions and their own
ignorance of the multimillion-dollar machines used to conduct elections.

Superior Court Judge Winifred Smith questioned those defenses in their
handling of a hotly contested election recount, at one point terming
them "shaggy dog stories" and "stonewalling." She appeared poised to
order stiff penalties against the county, including conducting a 2004
Berkeley election again at county expense.

If she does, it will be 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.

On Thursday, the judge filed a proposed ruling strongly favoring an
organization of medical marijuana advocates who sought to contest the
narrow defeat of a marijuana dispensary initiative, Measure R, that
year. The initiative failed by 191 votes, or less than half a percent
of the ballots cast.

But 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.

"The evidence necessary to determine whether petitioners' election
contest is meritorious has been lost or destroyed due to (Alameda
Advertisement County's) failure to fulfill its obligation to preserve
the information that was reasonably available to them at the time of
the recount, and at the time of the filing of this litigation," Smith
concluded in her tentative ruling.

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 a election recount get to see
more, however -- all ballots plus "all other relevant materials."

But Clark denied the group's requests for the machines' internal audit
logs, which could have showed malfunctions or changes in the machines'
operation on Election Day, plus internal backup copies of the
electronic ballots and chain-of-custody records showing who had access
to the machines.

Diebold engineers installed those features as insurance for voting
machine accuracy and reliability, and a state court of appeals agreed
that those records were "relevant" to a recount.

Alameda County Counsel Richard Winnie said punishing the county now is
"really unfortunate because the registrar was in the position of
interpreting a piece of elections code that never had been interpreted
before" for electronic voting.

"This is a new electronic age, and it was difficult for him to
interpret what was required," Winnie said.

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.

After more than a year of litigation, county officials handed 13 thick
envelopes of what they said were voting-machine audit logs to the
court under seal. Current Alameda County elections chief Dave
Macdonald swore in an affidavit that the audit logs could not be
released to the public without revealing secret e-voting data and
software clues that could help hackers manipulate votes.

But when the attorney for Americans for Safe Access looked inside the
envelopes, they didn't contain internal audit logs, just ordinary poll
tapes that show the votes recorded on each machine. Pollworkers print
them out at the end of every Election Day, and they include vote
counts, a time/date stamp and sometimes a greeting, but no software
code or secret data.

County officials and attorneys assured the medical-marijuana group
that the machines' internal voting data had been preserved, even after
the county purchased a new voting system and Diebold bought back all
of the county's touch-screen voting machines. But it turned out that
the county did not copy the internal records first, and by the time
lawyers for the county and Americans for Safe Access went to Diebold
facilities in Plano, Texas, to download them, all but 2 percent of the
records had been overwritten and lost.

Smith heard both sides Friday and left without ruling. In her
tentative ruling Thursday, however, she found that Alameda County
officials "have engaged in a pattern of withholding relevant evidence
and failure to preserve evidence central to the allegations of this
case. That evidence has now been determined to be irretrievable."

She said it was "reasonable" for the county to return the $22,600
recount fee, pay all of Americans for Safe Access' legal bills and
hold a new election on Measure R during the next general election.
County officials said Friday that they are prepared to pay for that
election in November 2008.