Republican bill supported by Democrats in the Assembly would allow only wealthy individuals to seek post-election counts...
By Brad Friedman on 6/11/2014, 1:45pm PT  

Up until now, the state of California has been able to boast about one of the most liberal election "recount" statutes in the nation. It allows any voter or group of voters to request a post-election hand-count of any number of precincts in any race or ballot initiative in the state. The state election code allows crucial access to citizen oversight of public elections.

That may all be about to change, however, if a Republican proposal, currently being supported by Democrats in the state legislature and causing alarm among some who have carried out recent "recounts", becomes law.

[NOTE: The BRAD BLOG generally uses quotes around the word "recount" to denote post-election hand-counts of ballots which have never actually been counted by human beings, but rather, only tabulated by computers. It's impossible to know whether those computers actually tallied votes accurately unless paper ballots are examined by hand.]

Under current law, voters seeking such a post-election count have to pay for the cost, though if the outcome of the election is changed in favor of the requester, they are entitled to receive a refund. Over the years, The BRAD BLOG has also documented abuse by County Registrars who have arbitrarily priced such counts so high that they became cost-prohibitive, effectively blocking such citizen oversight from happening at all.

Still, the provision for post-election citizen oversight of election results in the state, until now, has been far better than most such laws elsewhere in the nation.

But now, a bill proposed by a Republican and broadly supported by Democrats in the state Assembly has moved on to the state Senate for approval. If it passes there and is signed by the Governor, it is almost certain to put a chill on post-election citizen oversight...for all but the wealthiest of voters...

AB 2369 was proposed by Republican Assembly Member Curt Hagman (AD-55). The bill recently passed out of the Democrat-dominated Assembly by an astounding margin of 66 to 7. It now awaits a hearing and approval by a state Senate committee.

If successful, the bill would amend the current CA provision allowing any voter to file for a post-election "recount", to require that counts requested by individuals be paid for "from the voter's own personal funds".

According to the brief bill's language [emphasis added]:

The money deposited [for post-election counts] shall be from the voter's own personal funds, funds of the candidate-controlled campaign committee of the candidate on whose behalf the recount is being requested, or funds of a primarily formed committee.

In other words, if the bill becomes law, voter-requested hand-counts that can sometimes cost tens of thousands of dollars, may only be carried out by pre-existing campaign or initiative committees, or by a voter who is wealthy enough to pay for the entire count by him or herself.

[For the record, a "primarily formed committee" is defined, as per CA Code Section 82047.5 as a committee formed to support or oppose one or more candidates or ballot measures and which, as per Section 82013, receives contributions or makes expenditures of more than $1,000 in a calendar year. A citizen who has not formed such a committee, is not part of a campaign, or does not have the personal funds at his or her disposal to cover the costs of a post-election count would, presumably, be out of luck if they have questions about election results or otherwise simply wish to ensure that they were tallied accurately.]

"I am pleased that my colleagues realized the need to clarify current law, which states that the person requesting a recount has to deposit the funds to pay for it, but does not specify where those funds may come from," Assemblyman Hagman said in a statement [PDF] released after the bill passed handily in the state's lower chamber. "This bill will prevent direct third-party contributions, thereby making sure voters know not only who is requesting a recount, but also how it is being funded," he added.

Hagman's Legislative Director Katja Weisemann explained to us that "transparency" was the key reason for the new requirement. "Our goal is not to prevent third parties from contributing, or to restrict accessibility to the recount process," she told The BRAD BLOG. "Our goal is disclosure."

But why, we wondered, does the source of funding for a citizen-requested "recount" even matter? After all, such a count is publicly and transparently carried out by county officials, no matter who is funding it.

"It is political activity that should be tracked," Weisemann says. "Just as it is public information who donates to campaigns, it should be public information who paid for a recount that could result in a different candidate potentially being in office. Seeing that a recount could result in this person now being an elected official, it is important to know who put them there. We want to know the relationship between the donors and the candidate."

But such funding to a campaign or ballot committee must already be reported. So the change in the law appears only to effect individuals. Furthermore, it's unclear how the source of funding for a "recount" of a ballot initiative --- where an overturned election would not result in anybody becoming an elected official with a relationship to donors.

In any case, as noted, The BRAD BLOG has reported on a number of post-election counts in California over the years, and the abuses that can come with them, thanks to the fact that CA County Registrars are allowed to essentially charge anything they'd like for such counts. There are few if any standards for pricing and no requirement at all that prices be established or posted publicly before an election.

That loophole in the law has allowed Registrars to effectively stop hand-counts from proceeding at all.

For example, in February of 2013, we reported on the effort to hand-count ballots from the Prop 37 GMO labeling initiative. At the time, after several proponents of the initiative --- which failed to pass on the November 2012 ballot --- successfully carried out hand-counts in a number of counties, they were stopped dead in their tracks by the Fresno County Registrar who demanded $18,000 before a single ballot could be counted there, while informing the citizens seeking the count that they would be required to pay more than $4,000/day to count thereafter. Those costs were far higher than the cost of hand-counts in other counties for the same ballot measure.

Back in 2006, we also reported exclusively on the San Diego County Registrar who was attempting to charge at least $120,000 for the recount of a controversial special election for the U.S. House in California's 50th Congressional District. That cost would have been approximately $1.00 per ballot, versus 14 cents per ballot as charged for another count not long prior in neighboring Orange County.

Rather than fix that problem with the voter-requested "recount" law in the state, by requiring standards for pricing of post-election tallies or, at the very least, that costs be established and publicly announced before elections (to help avoid the appearance of political bias by County Registrars), both Republicans and Democrats in the state legislature appear ready to make the "recount" process even more difficult for voters to carry out.

"This is a terrible bill and needs a massive effort to defeat it," Tom Courbat, a long-time Election Integrity advocate told The BRAD BLOG. Courbat helped facilitate the ultimately aborted post-election count of Prop 37, which was stopped dead in its tracks by the pricing in Fresno. He says that this new provision would be a serious blow to citizen oversight.

"There is absolutely no good legitimate reason to prohibit ANY voter from asking for a recount - doing so limits the democratic process," he said. "This is clearly meant to make it harder for citizens to recount elections."

Former Riverbank, CA Mayor Virginia Madueño told us that she has similar concerns, and fears that the legislation would "severely limit the ability of private citizens such as myself to request a recount if they personally can't pay for it themselves."

Madueño had run into a similar problem with what seemed to be wildly expensive charges by Stanislaus County when she sought a recount of her 2012 election, which she had reportedly lost by just 53 votes. The County attempted to charge her $2,000 per hour for the post-election count (that came out to $20 per ballot, as counted during a 5-hour hand-count).

She says she "deeply appreciated when someone stepped forward to pay the recount deposit which had to be made before the recount could begin."

"This legislation is thus an impediment to a true democratic process for California's citizens. We should all have the same rights to request a recount regardless of our economic status, and this legislation jeopardizes election integrity in our State," Madueño wrote to us in response to our request for comment.

Steve Heilig is a San Francisco-based public health advocate and co-editor of the Cambridge Quarterly of Healthcare Ethics. He requested the post-election hand-count of Prop 29 in Sacramento County in 2012. That statewide hand-count of the failed ballot initiative that would have added a new tax on cigarette sales to pay for cancer research also ran into wildly disparate pricing from county to county. (For example, .29 per ballot was charged in Orange County compared to $3.86 per ballot in Sacramento.)

Heilig sees another problem with AB 2369, specifically that it runs counter to legal requirements for statewide "recounts".

"The proposed bill is inconsistent with existing California Elections code and laws pertaining to recounts," Heilig told us. "The Elections Code clearly states that the requestor of a recount in a new California county for a statewide ballot measure must be different from the individual that requested the recount in the preceding county."

In other words, he says that the law requires a different person request the post-election count in each county. If so, the new law would require not just one wealthy person to request the count, but 58 very rich people who could afford to request such a count in each of California's 58 counties.

"The requirement that a single person be held responsible for the recount of a statewide ballot measure conflicts with current California law, and I would anticipate that the Governor will veto this bill if it reaches his desk," Heilig said.

Hagman's office disputed the interpretation of the state Election Code explained by Heilig and echoed by Dr. John Maa, a San Francisco-area physician and the main proponent and funder behind the Prop 29 "recount".

Hagman's Legislative Director Weisemann says she contacted the Secretary of State's office for clarity on that point and reported back to us that "they let me know one person may request a state-wide recount in several counties, or it can be one person in each county. This means that for our bill, if the committee in support of the ballot measure wants to fund the recount, they could do it in every county, and people could contribute through that committee (or form their own and have 3rd parties contribute to that)."

That, of course, would not allow unaffiliated voters --- those not part of a standing committee --- to carry out such a count, unless they were independently wealthy.

(We've sought clarity from the Sec. of State's office on the legal point of whether a single individual may request a statewide recount in every CA county, or if it must be a different person in each one, as Heilig and Maa strongly stated. UPDATE: SoS Debra Bowen's office replies to our query to say the office "does not have a position on the bill". Spokesperson Shannan Velayas further cites the text about requesting "recounts" found in Election Code 15620 as well as the Sec. of State's administrative regulations for such counts as found here, to be the controlling language in the case of a statewide count. Taken together, they would suggest that either a single voter or a different voter in each county could request such a count.)

Weisemann cited "several other states," such as Minnesota, Colorado, Arkansas, Ohio and Virginia, that "are even more restrictive in stating that the recount has to be paid for at the requestor's own expense," While that may be true (we haven't checked those states' "recount" provisions on this point), California does not allow for automatic, state-sponsored "recounts" in close elections, as many other states do. Thus, the ability for citizens to seek oversight of their own public elections is even more crucial.

"Unlike other US States, California does not have an automatic process to recount votes in the case of a close contest, when the difference is within the known margin of error of counting votes," Maa told us. "The proposed legislation will only make requesting recounts to confirm election results more difficult in California."

But Weisemann argues that, despite all of the concerns, the new law is needed to keep undisclosed third-parties from participating in election oversight.

"This law would prevent third parties from directly giving you money," she says. "However, they are welcome to form a committee and fund the recount through that, or go through an existing committee that would like to help fund the recount for the candidate or ballot measure. Additionally, if the losing candidate is the one requesting the recount, contributions can be made to their campaign committee."

But, again, the individual voter, or even group of voters with concerns about election results, is left out of the equation, unless they can afford to buy in.

"With regard to transparency," Maa says, "if that is the intent, then there is a simpler way...have the recount requestor disclose all sources of financial support. The proposed legislation will constrain the ability to request a recount, and contradicts their self stated goal."

According to legislative analysis prepared for the Assembly [PDF] before the bill's passage, the "bill excludes other entities, such as a local political party or a passionate advocacy organization interested and invested in the outcome of the election or a particular candidate or ballot measure, from being able to request a recount because the bill does not permit these entities to directly pay for the recount."

The analysis goes on to say that "While the author's goal is laudable, this bill may not truly reveal where those funds are coming from. A business or organization could contribute money to the person requesting the recount and the voter requesting the recount can then submit cash, a cashier's check, or a money order to cover the costs of the recount. So, while it may seem as though the recount is being paid by the personal funds of the voter, it is not entirely certain that is the case."

Furthermore, the analysis prepared for lawmakers concludes, the effect of the bill will only be in chilling individual participation in election oversight. "If a candidate or a ballot measure committee pays for a recount, it is already required it to be disclosed and reported under the Political Reform Act (PRA). ... Consequently, it is unclear how this bill will result in more transparency when current law already provides for disclosure."

With all of those strikes against the Republican-authored bill, including by the Assembly's own legal analysis team, Democrats overwhelmingly supported Hagman's legislation, which now awaits a committee hearing in the state Senate. That hearing has not yet been scheduled.

You can read AB-2369 and follow its legislative progress here.

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UPDATE: This article has been updated to reflect a response to our query from the office of CA Sec. of State Debra Bowen.

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UPDATE 6/25/2014: Good news! Following our exposé above, AB 2369 has now been largely killed by Assembly Hagman amending it to remove the disturbing requirement that voters be forced to pay for "recounts" from their "own personal funds". Full details now here...

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