Narrow margin, 10,000 still-to-be-tallied absentee ballots to test L.A. County's Bowen-approved op-scan system, again

UPDATE 5/20: BOWEN CONCEDES...

Brad Friedman Byon 5/18/2011, 1:33pm PT

[See UPDATES at bottom for Bowen statement, final reported results...]

Yesterday, California's Republican-supported Prop 14 --- which voters approved last June, changing the state's separate party primary system to a single primary for all candidates, with the top two vote-getters going on to a run-off election if none receives more than 50% of the vote --- had its first official try-out in the Special Election to replace the resigning Blue Dog Democrat and unrepentant war supporter Rep. Jane Harman in the state's 36th Congressional District.

While similarly "Blue Dog" Democratic candidate and L.A. City Councilwoman Janice Hahn was in the lead last night as results were reported throughout the evening, it was the battle for second place, and therefore the right to participate in the run-off, that presented a real late-night nail-biter twist as unofficial precinct results were completed in the wee hours.

With Democratic CA Sec. of State Debra Bowen running second and seemingly headed for the run-off with Hahn for most of the night, according to L.A. County's running totals, the final unverified results inched self-financed Republican Craig Huey into the second place spot by just 206 votes at evening's end, after all 261 precincts in the very Democratic-leaning CA-36 were tallied.

With nearly 10,000 mail-in, provisional and other votes still to be tallied on the county's optical-scan system, however --- a system which was decertified and then conditionally re-certified, in part, by Bowen herself in 2008 --- the result of the cliff-hanger is likely to ensure "busy days ahead" at the L.A. County Registrar Recorder/County Clerk's office as Dean Logan, L.A. County's Registrar Recorder/County Clerk, noted last night on his personal Twitter account...

Logan pegged the "Initial ESTIMATE of remaining ballots" still to be counted at "9,811 (8,416 vote by mail; 1,269 provisionals; 126 damaged)" via his official L.A. County Twitter account late last night.

Here are the "Semi-Final Official Election Returns" of the 16-person race, with all precincts tallied, as published by the County last night, before those "remaining ballots" are tabulated today and in the days ahead...

One Twitterer who is hopefully better at math than I am, extrapolated: "If you apply the initial [Vote-by-Mail percentages] to the # of VBM ballots left, then Bowen picks up a net 262 votes on Huey, who's lead is 206."

That's a mighty close shave, no matter how it is sliced.

Some progressive critics, such as Firedoglake legal analyst "bmaz", have already lashed out at the unabashedly progressive, anti-war Democratic candidate Marcy Winograd, seeing her as "Nader-like spoiler" in the race, splitting the progressive vote between herself and Bowen. As they see it, Winograd's run may have allowed Huey to come in second, leaving Democrats left with only the less-than-progressive (and sometimes downright-Republican-like dirty-fighter) Hahn. Others, like progressive activist and impossibly-well-informed Down With Tyranny's Howie Klein note, however, that "Marcy had every right to run & her campaign did a great service to the district."

Huey's impressive showing is being attributed, in no small part, to $500,000 of his own fortune from his direct marketing business, used to buy his way into the election.

Winograd, who has run long-odds campaigns to unseat Harman in primary elections twice in the past, posted this last night on Twitter: "Thank you loyal supporters & volunteers. With 9,000 ballots to be counted, it could be Hahn vs. Huey or Hahn vs. Bowen. Defeat Huey!"

[Editorial note: For my part, I believe candidates should run when they have important ideas to bring to an election, which is the case with Winograd. And, by way of full disclosure, Bowen remains the only candidate ever officially endorsed by The BRAD BLOG during her first run for CA Sec. of State in 2006. We did not make any endorsements during her 2010 run for the same office and, though we have been supportive of Winograd in her races against Republican-friendly Harman in the past, we have stayed out of the CA-36 primary entirely.]

Los Angeles County uses the ES&S InkaVote Plus paper ballot optical-scan system to record votes, and the L.A. County-designed Micro-computer Tally System (MTS) to tally and compile results.

An analysis of the ES&S InkaVote Plus, commissioned by Bowen herself in 2007, found [PDF] "serious design flaws that have led directly to specific vulnerabilities, which attackers could exploit to affect elections outcomes."

"The expert reviewers demonstrated that the physical and technological security mechanisms provided by the vendor for the InkaVote Plus...System were inadquate to ensure accuracy and integrity of the election results and of the systems that provide those results," reads Bowen's decertification and conditional recertification [PDF] of the system, as signed in early 2008 following her "Top-to-Bottom Review" (TTBR) of all electronic voting systems in the state.

Due, in no small part, to the vulnerabilities of the InkaVote System, as Logan explained to me today, "One of the conditions placed on the InkaVote Plus system when it was re-approved by the Secretary of State specifies the use of the system as a means of recording votes and not for vote tabulation."

Tabulation of the votes is, therefore, carried out on the county's MTS system instead. That system, after a separate study, was subject to "additional conditions" [PDF] imposed by Bowen in 2008, "in order to safeguard and enhance the security, accuracy, and reliability" of the systems.

The InkaVote Plus system was not included in the initial landmark TTBR because ES&S blatantly refused to supply source code for the system, as they are legally obligated to do, for the first-of-its-kind, independent review by world-class computer scientists and security experts. Ultimately, discrepancies were reportedly found between the source code versions the company submitted to the Sec. of State and the copies they were required to leave in escrow with the state.

Unrelated to L.A. County's systems specifically, but related to the reliability of ES&S, the largest e-voting vendor in the nation, in 2007 the state sued ES&S for $15 million after Bowen's office discovered the company had illegally used uncertified voting systems in a number of counties.

Her eventual "conditional recertification" of the InkaVote Plus system in 2008 mandated a series of security procedures in order to help offset the system's many defects. County Clerk Logan has been working on finding a replacement for the oft-failed InkaVote Plus system, a source of many problems in past elections.

[See the extraordinary "Double Bubble" failure in the 2008 Super Tuesday Presidential Primary where some 12,000 votes ultimately went untallied --- a problem now largely mitigated by the new Prop 14 primary structure --- as well as my own personal experience with L.A. County's electronic audio balloting system mis-printing 4 out of 12 of my own votes during the state primary in June of 2008, and then failing completely to record my vote at all during the 2010 primary, a problem chalked up by Logan's post-election analysis to "human error" and "design weakness" in the InkaVote Plus system.]

The defects of the ES&S InkaVote Plus and MTS system, and the mandated security procedures meant to offset them, are likely to be under close scrutiny as observers in the CA-36 primary (including the Secretary of State herself) attempt to oversee the tabulation of the remaining 10,000 ballots and the state's mandatory 1% post-election manual tally and general canvassing of yesterday's election.

While paper ballots are, by and large, hand-marked at the precincts or via absentee ballot in Los Angeles County --- the largest voting jurisdiction in the nation, by far --- Election Day ballots are then sent back to county election headquarters in Norwalk to be tabulated centrally on Election Night. The system (with some flaws we won't go into here for now) is ultimately only as reliable as the electronic optical-scanners, central tabulation computers, and chain of custody for the ballots may be.

Logan says the county is "currently scheduled to complete the canvass on Friday," and told me last night that the 1% manual tally was set to begin this morning at 10:15am in Norwalk.

Though California law requires a 1% manual tally of paper ballots, there is little guidance in the election code as to what do when that tally is found to be different from the optical-scan tally. Past discrepancies have been ignored by the county, according to some observers and Election Integrity advocates.

More details on the 1% tally, the schedule for the canvass, and other observation procedures for the May 17th CA-36 primary are available on the LA County Registrar's website here.

In the meantime, citing the "9811 ballots not yet processed," late last night on her own Twitter feed, candidate Bowen rallied supporters by announcing there were "more than enough to make up 206 vote diff & make the run-off. Let's GO!!!"

CLARIFICATION: Several points regarding L.A. County's election system have been corrected or clarified in this article since its original publication, as based on helpful input from Registrar Recorder/County Clerk Dean Logan. Also, the graphic used originally for the "Semi-official election returns" was from earlier in the evening yesterday. We've replaced that with the correct one, showing Craig in second place, followed by Bowen et al.

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UPDATE 5/19/11, 3:01pm PT: As of this afternoon, Huey's lead over Bowen has increased from 206 votes to 750, as per the LA County Registrar-Recorder/County Clerk website. The initial tally of all remaining ballots should be completed by mid-afternoon on Friday. Here's where things reportedly stand at this hour...

UPDATE 5/20/11: Bowen concedes with a statement on her campaign website posted last night, prior to today's tally of the "roughly 200...damaged and handful of final validated provisional ballots", according to L.A. County Clerk/Registrar Dean Logan...



...

"Since Tuesday’s election, my staff, legal advisors and election experts participated in the ballot review process to ensure a full and fair vote count was conducted. It is clear now that I will not be in the runoff and I congratulate Janice Hahn and Craig Huey. Secretary of State Debra Bowen issued the following statement today regarding the updated election results in the May 17, Special Election to replace Jane Harman...."Since Tuesday’s election, my staff, legal advisors and election experts participated in the ballot review process to ensure a full and fair vote count was conducted. It is clear now that I will not be in the runoff and I congratulate Janice Hahn and Craig Huey. "I also want to commend the excellent job by Los Angeles County Registrar of Voters Dean Logan and the entire team at the Registrar's office in handling the final count so quickly, and for conducting this election so professionally, as is their standard. "Voters in Congressional District 36 have a very important decision to make on July 12, and I encourage citizens to have their voices heard by voting in the runoff. "As Secretary of State, I have always implemented a strict policy of not endorsing candidates to avoid even a perception of conflict, and I will continue that policy."

Logan says via Twitter at 12:27pm PT today:

Final Results. Total votes cast: 64,183 (18.59%). Janice Hahn (D) & Craig Huey (R) advance to July 12 special runoff election.

Bowen closed yesterday's 750 gap to 704 in today's "final" tally...

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