Lawsuit Challenges Berkeley Election Officials in Measure R Recount

Berkeley, CA - A close proposition referendum will come under court examination in a case that highlights major problems with conducting a recount using Diebold electronic voting machines. Berkeley Measure R, the Patient's Access to Medical Cannabis Act of 2004, lost by only 191 votes after the regular election on November 2, 2004. Under the law, the proponents were entitled to seek a recount, which they did.

Instead of attempting to ensure that the votes were counted correctly, however, Alameda County election officials engaged in a "going through the motions" exercise where they merely ran the same electronic vote data through the same counting machines and, predictably, reached the same result. They did not consult the machines' audit logs, redundant memories, or any other relevant materials. Yesterday, the county announced that the recount had failed to change the result. They altered the final margin of defeat to 166 votes, attributing the change to absentee and provisional ballots -- the electronic voting machine count remained the same.

Measure R proponents Americans for Safe Access filed a lawsuit on December 30 challenging the actions of county election officials in handling the electronic voting machine portion of the recount. This suit now awaits a hearing.

"California law guarantees every voter the right to a recount and requires election officials to produce for public review all materials relevant to that recount," said Gregory Luke, attorney at the Santa Monica firm of Strumwasser &amp Woocher, which represents the plaintiffs Americans for Safe Access, and three individual Berkeley voters. "Because the Diebold machines purchased by Alameda County do not retain any ballots for the purpose of a recount, election officials must, at the very least, look at the information produced by the system's existing security features to give voters some circumstantial evidence that the machines performed properly and that vote data was not damaged or altered. Alameda County's refusal to allow the public to examine the audit logs and redundant memory renders the so-called 'recount' they conducted utterly meaningless."

"While it was easy to watch the recount of the paper ballots to make sure every vote was counted, the recount from the electronic voting machine was simply a 'rerun' of the original election results and gave us no assurance that the results were correct," added Debby Goldsberry of Americans for Safe Access.

"Recounts are one of the most important ways we detect vote fraud and error," said Matt Zimmerman, staff attorney for the Electronic Frontier Foundation, which is consulting on the case. "Even after Californians have voter-verified paper trails in 2006, it will be important to ensure that audit logs, redundant memory, and other security measures are checked during a recount, along with the paper trails. Banks and credit card issuers use these measures to make sure our financial transactions are safe. Our votes deserve at least as much protection."

Americans for Safe Access is the largest national grassroots coalition working to protect the rights of patients and doctors to legally use marijuana for medical purposes. Measure R would have relaxed zoning laws for dispensaries, set up a peer review committee to oversee operations at the city's dispensaries, and replaced the city's current limit with one linked to a patient's need as defined by his or her physician.

A hearing in Alameda Superior Court is currently set for March 2.


Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation

Gregory Luke
Strumwasser &amp Woocher LLP

Hilary McQuie
Americans for Safe Access
+1 510 486-8083 (office)

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