What happened last November in California’s Prop 37? Is it really possible that progressive California doesn’t want Genetically Engineered Foods to be labeled as such? According to the reported results of that election, that would seem to be the case. But did Californians really vote against such labeling?

Unfortunately, thanks to a lack of overseeable public hand-counts on Election Night, and a gaping weakness in the state’s otherwise liberal “recount” law, we’re unlikely to ever know for certain.

A weeks-long investigation by The BRAD BLOG into the months-long attempted effort to confirm the results of the Prop 37 ballot initiative last November, serves to highlight not just the weakness in California “recount” law, but also the notion that paper ballots, secretly tallied by optical-scan computers, are just fine, since, as the knee-jerk saying goes, “we can always count the paper ballots by hand afterwards if there are any questions about the results.”

The fact is: no we can’t. As our investigation reveals, election officials have the ability to stop an attempted “recount” dead in its tracks, by simply charging contestants anything they like for the effort. They are able to price such oversight beyond the means of most citizens, and are even doing so in apparent violation of state election code and regulations, as we found in Fresno County, CA last month during an attempted citizen oversight campaign of Prop 37 results.

But that election was not the only one where an attempt to examine paper ballots to assure accuracy of the secret computer tallies has been stymied by officials in the Golden State. The matter is rife for abuse and continues to frustrate Election Integrity advocates, even as both the CA legislature and the CA Secretary of State have done little to correct the situation…

Democracy ‘only available to high-rollers’

California has one of the most liberal election contest laws in the nation. It allows for any “elector” (voter) to challenge the results of any race or initiative on the ballot by filing for a hand count of ballots in any county and any number of precincts they choose, provided they pay the full costs of the hand count. (In the event that the post-election count leads to a race or initiative being overturned, those costs are to be reimbursed to the challenger.)

Sounds great, in theory. Many other states allow such post-election oversight only under certain circumstances, such as automatic “recounts” in the event of very close elections, or by certain individuals defined as having “standing,” such as a candidate in the particular race being contested.

But as The BRAD BLOG originally highlighted as long ago as 2006, after the controversial U.S. House Special Election to replace the disgraced Republican Rep. Randy “Duke” Cunningham in California’s 50th Congressional district, there is an enormous flaw in state law that allows any county Registrar of Voters to essentially stop any recount challenge dead in its tracks.

That’s exactly what happened in January during a citizen-led attempt to confirm the results of California’s Prop 37, an initiative that would have required Genetically Engineered Foods to be labeled as such on their packaging. Despite progressive victories up and down the Golden State last November, Prop 37 — opposed with some $44 million from corporations such as Monsanto and DuPont — reportedly failed.

The citizen-led attempt to make sure that Prop 37 actually failed — since, without a citizen-funded “recount” all results in California are still tallied in secret by computers (as they still are in almost every other state in the union) — was stopped dead in its tracks in Fresno County by the Registrar of Voters’ demand for more than $18,000 before even a single ballot could be examined for accuracy. And that was just the starting price.

“Democracy in Fresno County is only available to high-rollers,” one of the citizens involved in the attempted hand-count told The BRAD BLOG. It’s a story that, unfortunately, we’ve seen before in this state and something needs to be done about it, as it makes the notion that “we can count paper ballots later, if needed” absolutely absurd.

Blocking oversight for the 2006 Special U.S. House Election in San Diego

As we reported exclusively back in 2006, then-San Diego County Registrar of Voters Mikel Haas had estimated that the cost of hand-counting the CA-50 Special Election would be anywhere from $120,000 to $150,000. The citizen contesting the election at the time, Gail Jacobson, was told that she would need to offer a prior payment of $6,000 before the counting could even begin.

Using the Registrar’s un-itemized numbers, as we reported in great detail at the time, the cost of counting in San Diego amounted to approximately $1.00 per ballot. At the same time, in neighboring Orange County, a hand count that had taken place not long before the San Diego race had cost the challengers just .14 per vote.

In the aftermath of the CA-50 race, the Democratic National Committee had considered calling for and sponsoring the challenge themselves, but decided against it at the last minute, choosing instead to have their “Voting Rights Institute” issue a statement calling on the County to pay for “a swift and verifiable ‘manual count’ of all 150,000 ballots cast” in the special election, given “the importance of verifying the facts related to the election and voting machine irregularities in this race,” that The BRAD BLOG had detailed at the time.

Our exclusive reports on the tainted electronic tabulation systems used in that race had been picked up and advanced by, among others, CNN’s Lou Dobbs, CourtTV’s Catherine Crier, Tribune Media’s Robert Koehler and the far-right conservative Rush Limbaugh fill-in host and San Diego radio personality Rodger Hedgecock. They had all decried the security breaches we had painstakingly detailed in the aftermath of that election, even as folks like Hedgecock, a rock-ribbed Republican, had otherwise supported the reported winner, Brian Bilbray.

“The San Diego County election official responsible for administrating post-election manual vote counts has given three different arbitrary cost estimates for conducting the hand count,” Greg Moore, the Director of the DNC’s Voting Rights Institute had complained at the time in his statement. “The quoted fees are as much as six times the costs estimates for similar hand counts in surrounding counties.”

“The estimates portray the expense of a manual vote count to be cost prohibitive,” Moore said on behalf of the Democratic Party.

Attorneys for the citizen challenger described the San Diego Registrar’s quoted price for a hand tally in the CA-50 Busby/Bilbray race as arbitrary and capricious. Without the institutional support of the DNC, the count simply became impossible for the contester to afford.

Nothing was done to standardize the pricing of such oversight in the wake of CA-50. And six years later, the problem has once again served to block a citizen attempt to assure the accurate results of their own election for the statewide Prop 37 initiative.

Prop 37 oversight blocked by Fresno County

A similar case to what happened in CA-50 has now helped to stymie the “recount” efforts for Prop 37 as well, according to the rag-tag coalition of citizens who had banned together in an effort to confirm the secretly-tallied results.

One of those citizens is long-time Election Integrity (EI) advocate Tom Courbat. He spent 25 years working in local government in three different California counties, as a Senior Budget Analyst in Los Angeles County, a Fiscal Manager in Shasta County, and a Finance Director in Riverside County.

Courbat helped lead the effort over the past several months, along with other Prop 37 proponents and EI advocates, in an attempt to confirm the officially reported results of the controversial initiative. But after counting ballots in two other counties, the group hit a cold, hard wall when the citizen oversight campaign reached Fresno County.

“The ‘price of admission'”, in Fresno, “is $18,000,” Courbat told us when relaying the tale of what happened after the group had carried out successful hand counts of Prop 37 ballots in both Orange County, one of the state’s largest, and Sierra County, one of its smallest. In both of those counties, the cost of hand counting, determined by the local Registrars, was reasonable enough, and no significant mistallies were discovered in either of the two counties. Courbat reports that Registrars Neal Kelley in Orange and Heather Foster in Sierra were extremely cooperative in both cases.

The group counted ballots from a sampling of precincts in Orange County, the third-largest in the state, over three days in December. The cost was $5,400 total (a $3,600 “set up” fee, and then $600 per day thereafter.) In Sierra County, the second smallest in the state, they were able to oversee a hand count of every ballot in the county — all 1,822 of them — in about four hours. The entire cost for the count there was just $500.

Fresno, however — the tenth most populous of California’s 58 counties — was another story entirely, and mirrored what had happened back in 2006 in San Diego.

As Courbat described it — and as the The BRAD BLOG has confirmed after reviewing documents and communications sent between him and Fresno’s Registrar of Voters Brandi Orth — he was told by Orth that, due to the way the county stored absentee vote-by-mail ballots (which comprise “at least half of all ballots cast” in the county) it would “take several days” to locate and “pull the ballots related solely to the precincts selected for recount. And if there was a subsequent desire to recount more precincts, the entire process would have to be initiated all over again.”

In fact, in a January 9th, 2013 correspondence [PDF] from Orth to Courbat, detailing the estimated costs of the count, the Registrar explains that “Fresno County has 142,109 voted vote-by-mail ballots, stored in over 315 boxes.” She wrote that “it will take 5 business days at six hours per day to manually locate the vote-by-mail ballots for the precincts involved in the recount, before the recounting of ballots can commence.”

Five days just to locate the ballots?

The letter from Orth goes on to give the various general costs for the count, including 5 “Recount Board” members (ballot counters) who would each be paid an average of more than $46/hour, including salaries and benefits, for the tally.

$46 per hour to count ballots?

A 3-member “Executive Staff” would also be required at the counting, according to the cost estimate included in Orth’s letter to Courbat. Their costs: $648.54 per person, per day. That’s $92 an hour in both salaries and benefits for each of them for the estimated 7-hour long days.

For a count with a single 4-person counting board and 1 supervisor, Courbat was told his coalition would be charged, in total (in addition to the $14,000 set up fee) $4,029.96/day to count the one ballot initiative in Fresno. That, compared to $600/day for a hand count by a single counting board in Orange County and $500/day for the same in Sierra County.

During discussions with Orth about the estimated costs of counting in Fresno (according to the CA Election Code, the challengers were able to choose which counties from among CA’s 58 that they wanted to count, so long as they were actively counting in at least one county), Courbat was stunned to learn that costs were running up, even during his initial phone conversations with the Registrar.

“She indicated that staff was already keeping track of all the time they were spending ‘getting ready’ for the recount,” Courbat told us, at which point he says he asked her: “We’re not on the clock in our conversation right now to get a cost estimate, are we?”

He says she replied, “well, yes”. After which, Courbat reports, “it became apparent that Fresno County intended to charge for anything and everything they possibly could in regard to the recount.”

When Courbat finally received his official estimate from Orth, “It indicated we should bring $18,823.52 to the recount on Monday morning to cover their ‘set up’ costs and first day costs of over $4,000.” The payment needed to be provided, according to Orth’s letter, “in either cash, cashier’s check or money order payable to the County of Fresno.”

Courbat says, “She also indicated that her office had already incurred a cost of about $4,000 prior to providing us with a cost estimate, which she verbally stated she expected to be paid.” He says the group will be doing no such thing.

The prohibitive fees resulted in the group being forced to call off the Prop 37 “recount” effort entirely.

Violations of election code, regulations and state clerks’ recommendations

“Based upon the numbers provided by the Fresno ROV,” Courbat, the veteran CA county Finance Director told us, “it would have cost nearly $38,000 by the end of the first week, $58,000 by the end of the second week and $78,000 by the end of week three.”

“Obviously the cost is so extreme that the common citizen could not afford to have a recount conducted in Fresno County,” he said. “The difference is so stark between Fresno and Orange as to be insulting to the cause of Democracy.”

But it wasn’t only “insulting”, it very well may have been illegal.

We sought comment from Orth to give her the opportunity to justify the seemingly very high costs of hand counting in her county versus other counties in the state.

Orth responded several times in detail to our questions. She believes she is going strictly by the book, and offered The BRAD BLOG an Excel spreadsheet breakdown [XLS] of the specific daily costs she had estimated for the Prop 37 count. While her breakdown did not include details on the $14,000 set up fee, it detailed expenses of daily costs, including the seemingly exorbitant salaries and benefits for members of both the Recount Board (five of them, four of whom would determine whether ballots read YES or NO in the Prop 37 race, the other would serve as “supervisor”) and “Executive Staff” (three of them, whose roles in the recount were not specified by Orth, nor by state law.)

While Orth cited California Election Code and the state’s Code of Regulations, and included an attached document with recommendations for “Recount Billable Items” from the California Association of Clerks and Elections Officials (CACEO) for staffing levels and salaries, her estimated costs for at least some of those items are in direct contradiction of several of those authorities.

For example, Orth’s breakdown of average costs for each member of the Recount Board is $38.18/hour including both salary and benefits. Each Executive Staff would receive an average of $76.80/hour in salary and benefits for overseeing the hand count. (Orth’s per hour numbers are lower than our own estimate offered above because she presumed an 8-hour day, rather than the 7-hour day she had specified in the estimate given to Courbat.)

But CA Election Code 15625 specifically notes that “Each member of a recount board shall receive the same compensation per day as is paid in the jurisdiction within which the recount is being conducted to members of precinct boards [poll workers].”

Moreover, the CACEO statement from 1991 on “How to Prepare a Recount Estimate” [PDF] which Orth cited, and was kind enough to send to us along with her response, echoes that section of the Election Code by specifically noting that Recount Board members are to be “Paid same as precinct workers/No overhead.”

“Fresno County followed these guidelines in preparing the estimates for Mr. Courbat,” Orth told us in her initial response [PDF].

But Fresno County appears to have done no such thing.

How much do precinct workers receive in Fresno County? “Precinct Officer Clerks are paid a flat rate of $150 per day in accordance with Section 1314 of the Fresno County Salary Resolution,” Orth explained in one of her responses [PDF] to us. “There is no hourly rate for this type of employment arrangement.”

And yet, by her own recount cost estimates, Recount Board members would not be paid the Fresno precinct worker rate of $150/day (18.75/hour for an 8-hour day) as prescribed by law and echoed by CACEO recommendations, but rather, Orth had decided to use her own employees from the Elections Office to hand count ballots instead, at an average cost of $305/day ($38.18/hour for an 8-hour day).

Orth explained that rather than hire voters at $150 day, as state regulations and CACEO guidelines call for, she chose to “exercise the option of utilizing employees of the Elections Office, as Board Members, to conduct the proposed Prop. 37 recount because they are the most experienced in all aspects of the elections process.”

We asked what experience such employees bring to the process of determining whether voters had chosen either YES or NO on Prop 37 on each ballot, and she explained in a subsequent note [PDF] that, she “knew that the ultimate scope of the recount could also include an examination of all of the election material, such as precinct ballot statements, 1% tally results, rosters, canvass results, etc. The election staff were also responsible for several of these processes during the election and their experience would be beneficial to provide any explanation to the proponents.”

“Fresno County takes a recount request as a serious matter and ultimately my Office wants to be as efficient as possible in responding to the proponents requests and questions,” she added. “I made the decision that it would be appropriate to use experienced election staff to not only serve as recount board members but also to utilize them to explain and respond to any other election process question.”

But that’s not what either the law or the state clerks’ association calls for. Also, since she included a full three Executive Staff members to be present each day (one of whom was to be herself), which neither the state Election Code nor CACEO calls for, it seems there would have been more than enough “experience” in the room to guide the ballot counters through any tricky questions that arose without using her elections office employees as counters.

Making matters still worse, according to section “20818 Staffing” in the CA Code of Regulations [PDF], as posted at the Secretary of State’s website, employees of the Elections Office “shall not be compensated as a special recount board member…for any day for which the jurisdiction otherwise compensates the employee unless the employee uses one of his or her vacation days.”

None of the workers were planning to use vacation days, it seems, otherwise they would not have been specified to receive their normal salary and benefits for the recount, but rather the flat $150/day allowed by state and county law.

When confronted with all of these citations, and her seeming disregard for the state code, regulations and even CACEO recommendations, Orth was unmoved. She replied in her final response [PDF]: “I am confident that our decisions are consistent with the law, and not only provide assurance to our electorate that any recount in Fresno County is handled lawfully, but that it would be conducted with the best interest of the voters in mind.”

How vastly overcharging voters to confirm the results of their own election is in the “best interest of the voters” remains unclear.

In all, Orth’s estimated daily costs for the Recount Board alone was more than 200% of the costs allowed by state law. Rather than the $1,527.26 Orth was charging, the cost should have been just $750 for a four-person board plus one board supervisor, paid $150/day each.

But those are overcharges that we were specifically able to nail down in comparison to what they should have been, as specified by the state Election Code. There seems to be no legal authority, on the other hand, that specifies the need for three “Executive Staff” — the County Clerk (Orth), the Systems and Procedures Manager, and the Principal Staff Analyst, at an average hourly expense of $76.80 in both salary and benefits, to be present for each 8-hour day of counting. Those numbers seem to be included in the estimate purely at the whim of Orth. Neither Orange nor Sierra Counties seem to have charged anything like that for whatever Executive Staff may have been present during the Prop 37 hand counts in those counties.

Despite our request, we did not receive a detailed breakdown from Orth for her seemingly exorbitant $14,000 set up costs.

Not Just Fresno

But this article is not meant to vilify Orth as a bad actor. Rather we are hoping to detail an endemic problem in both California law, along with the short-sighted notion that paper ballots, tallied by computers in a way that humans cannot oversee on Election Night, can easily be counted by hand after an election if there are ever any questions about computer-tabulated results.

Dr. John Maa, an Assistant Professor at the UCSF Division of General Surgery and a member of the Board of Directors of the American Heart Association, San Francisco Division, was an ardent proponent of the failed Prop 29. That initiative, from the June 2010 primary ballot in California, would have would have increased taxes on cigarettes by $1-per-pack to fund cancer research. According to state-wide computer tallies, it reportedly lost by fewer than 30,000 votes out of more than 5 million cast statewide that year.

Maa funded and carried out a recount of that ballot initiative in what was, at the time, the first-ever recount of a statewide proposition in California. Prop 37 would have been the second such effort and Maa unofficially help to advise the group hoping to confirm its results. He told The BRAD BLOG that the Prop 29 count “lasted nearly 3 months, and involved almost 60 days of hand recounts.”

He cited similarly disparate charges from county to county during his own attempt to confirm the results of that ballot initiative. That effort set him back some $250,000 of his own money, he told us, and led to similarly exorbitant prices in counties like Los Angeles and Sacramento.

Maa broke down for us the disparate approximate costs he was charged to confirm the computerized results of the election in various CA counties this way:

Orange County: .29 per ballot

Placer County: .94 per ballot

Los Angeles County: $2.24 per ballot

Sacramento County: $3.86 per ballot

No, the per ballot price for counts in those last two counties are not typos.

“A wide variability of recount costs across the State of California was revealed through both the Prop 29 and Prop 37 recounts,” Maa told us, adding, “The estimated costs and initial deposit requested by the Fresno Registrar for the Prop 37 recount exceeded the startup costs for all of the counties in the Prop 29 recount.”

Again, the point in highlighting these issues is not to vilify any particular state county clerk, but rather to place a spotlight on the fact that there are few if any standards for setting prices for such hand counts. That lack of standards is both rife for abuse and makes the possibility of citizen oversight of secret computer tallies next to impossible for all but the wealthiest of challengers, such as Maa, or a large organization, like the DNC.

For example, could a candidate for the Board of Supervisors in Fresno County who had questions about the results of her election afford $18,000 for one single day of hand counting in order to verify the results of that election? Would such a candidate have $38,000 on hand after the election for a single week of hand counting? It seems unlikely at best, in most cases.

The issue seems to make laughable the notion that “paper ballots tallied secretly by computers are fine, because if there are any questions about the results we can always go back and count the paper ballots.” Well, good luck with that!

Why No Cost Standards?

“I believe that certain Registrars have misapplied the Elections Code and Secretary of State’s instructions about allowable recount expenses,” says Maa. “I do believe that the California Legislature, Secretary of State, State Board of Equalization or State Auditor should review the costs associated with recounts to better understand the inconsistencies across the State of California. As our State does not have a mandatory trigger for an automatic recount in the case of a close contest, requesting a recount remains the primary strategy to audit the certified results.”

So what has the state Legislature, or CA Secretary of State Debra Bowen (D), done to try and solve the problem or make the system more fair and accessible for average citizens?

Since taking office in 2006, Bowen’s work in bringing first-of-its-kind independent oversight to the electronic voting systems used in CA, via her landmark Top to Bottom Review of all such systems, was both laudable and key to improved security for the easily-hacked, oft-failed systems used in CA and all other states in the union. But little has been done to ensure private citizens (voters!) — with concerns about the secret vote-tabulation systems still in use across all 58 counties in the state — can verify the accuracy of those systems.

We asked Bowen’s office for comment about the seemingly exorbitant estimated costs for hand counting in Fresno versus other counties, as well as the similarly exorbitant costs estimated for the CA-50 Special Election in San Diego in 2006.

“The secretary of state’s office could not speak to what the costs are from county to county,” Bowen’s spokesperson Shannan Velayas told The BRAD BLOG. Velayas included a 2008 letter [PDF] highlighting the Secretary’s support of AB 2959, a state bill that year which would have required Registrars to provide a voter requesting a recount with an itemized estimate of costs associated with conducting it.

“This measure provides additional transparency so voters are better informed about the costs associated with a recount,” Bowen said in the letter.

The bill, however, did not call for standardized pricing and still allowed Registrars to set largely any pricing they wanted. It passed unanimously in both the state Assembly and Senate before being vetoed by then Governor Arnold Schwarzenegger (R) who wrote in his veto message that the bill “imposes an unnecessary mandate on elections officials. Recounts are requested in a scant few elections and the proponents have failed to demonstrate any abuse on the part of elections officials estimating recount costs.”

Some of those who have attempted recounts disagree with the former Governor about a lack of “abuse on the part of elections officials estimating recount costs.”

(Unfortunately, after responding to previously queries, Bowen’s office did not respond to our request for comment after we detailed the specific violations of state elections code seen in Fresno’s estimated costs for Recount Board workers. We’ll update if her office offers comment.)

Maa suggests that solutions to the problem “might include a standard price per ballot recounted, requiring the Registrars to provide a better estimate of recount costs upfront, and standardizing the total recount fees within a reasonable range across counties.”

“A candidate or recount requester should not be disadvantaged in one county relative to a candidate/ requester in a neighboring County where the recount fees can be an order of magnitude less expensive,” he said, citing another recent attempted “recount” in a race for the San Francisco Board of Supervisors which was “cancelled after the recount requester was informed of the very high startup and daily costs for the recount by the San Francisco Elections Office.”

Not all “recounts” are the same, Maa observed. “I was pleased to note in reviewing the costs across California counties yesterday that recent recounts have been held that were relatively inexpensive, and of one recount that reversed the initial outcome resulting in a refund of all of the recount monies deposited by the requester.”

Unfortunately, that’s not the case in every situation, and an election official who wishes, for any reason, to keep a count from going forward has the complete capacity to do so. And that’s here in California, with our liberal “recount” laws. Attempts at citizen oversight of computerized tabulation systems in other states is likely even much more difficult if not impossible in many cases.

For his part, though the results of Prop 37 can no longer be confirmed for accuracy, Courbat is working with a member of the state legislature in hopes of introducing a future bill that might address the problem. Standardizing costs for such counts, as Maa suggests, would be a very good place to start.

“Citizens need ‘cost containment’ of recount costs to ensure every citizen, regardless of his/her economic status, can exercise the basic democratic right to a recount,” Courbat says. “And it SHOULD be a big deal for crying out loud, it is the last line of defense in maintaining the democratic operations of our republic.”

Until such a bill is signed into law — and until Democracy’s Gold Standard of fully transparent, precinct-based hand counts are in place, allowing for full citizen oversight on Election Night — elections in California and most of the rest of the nation, are still an exercise in faith and trust in secret vote tallies and the officials who run them. That hardly seems the way to run the “world’s greatest democracy”.