Alameda County May Face Sanctions for Failure to Preserve E-Voting Data

Oakland, Calif. - On Friday, May 4, at 9 a.m., a California judge will consider potential sanctions against Alameda County for failing to preserve critical voting machine-related data in a lawsuit challenging the county's recount procedures following a close race conducted on Diebold electronic voting machines in the 2004 general election.

Superior Court Judge Winifred Smith ruled last month that county officials violated both the Elections Code and the California Constitution when they refused to make audit logs and other relevant data available for a recount. The county also returned voting machines to Diebold Election Systems without preserving the corresponding data, despite the ongoing the legal battle over the recount for Measure R.

Measure R, a citizens' initiative, would have addressed the operation of medical marijuana dispensaries in Berkeley. The measure lost by under 200 votes. Americans for Safe Access, a medical marijuana group, and three Berkeley voters asked to see the copies of the votes stored in the voting units, the audit logs from those machines, the results of Logic &amp Accuracy system tests, and the chain-of-custody records for system components. Although California Elections Code provides that a voter may examine "all ballots ... and any other relevant material as part of any recount," former Alameda County Registrar Bradley Clark refused to provide any of this "relevant material." Americans for Safe Access and the Berkeley voters filed suit.

"Judge Smith's decision is potent vindication of the people's right to control their elections and a firm rebuke of the culture of secrecy surrounding electronic voting," said Gregory Luke of Strumwasser &amp Woocher LLP, attorney for Americans for Safe Access and the suit's three other plaintiffs. "Having found that the county violated the voters' right to a recount, the court must now address the shocking fact that the county disposed of the electronic copies of the votes while this lawsuit was still pending."

The voter-plaintiffs have asked the court to order the county to return the $22,000 they were required to pay for the recount and, if the county is unable to locate the electronic copies of the votes, to place Measure R back on the ballot.

"Requirements to preserve the transparency of the electoral process are especially important when electronic voting systems are used," said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. "Aside from the widespread problems that have been documented with these types of machines in the past, without the ability to review even the limited evidence that these machines generate, the public would lose further confidence in the process. The court has flatly rejected the shortsighted arguments of the county about its election-related obligations. The county should further be held accountable for any failures to safeguard the digital record of the 2004 election."

Americans for Safe Access v. County of Alameda

9 a.m.
Friday, May 4

Alameda County Superior Court Department 31
201 13th St.
Oakland, CA


Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation

Gregory G. Luke
Strumwasser &amp Woocher LLP

Kris Hermes
Legal Campaign Director
Americans for Safe Access

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