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1. Counting Woes
Criticism of John Perez’s demand for a selective recount in the State Controller’s race to see who will take on Fresno Mayor Ashley Swearengin this fall has been simmering over the past two days. Perez is choosing selected favorable precincts in his 15 best counties for definite ballot-by-ballot hand-counts, with the option of shifting to machine counts (which are unlikely to shift any numbers) once the favorable counties are completed. With one of the California Democratic Party’s major statwide meetings of the year taking place this weekend, that controversy may soon be boiling over. This is unnecessary as well as self-defeating — although I’m sure that our Republicans friends hereabouts and statewide are celebrating over it.
Here’s a civilized option: count far fewer votes and count every vote in the counties chosen the same way. Those recounts would include the two most favorable counties for Perez (Imperial and Kern) and two of the most favorable counties for Yee (Humboldt and Santa Cruz). They would also include six other more moderate small counties to ensure that (1) each candidate has equal aggregate support in the counties to be recounted and (2) the overall proportion of the statewide vote in the ten counties would closely match the support that the candidates received statewide.
If Perez makes up 45 votes after that count, then move to negotiate a second set of counts — trying to avoid the expense of huge and expensive recounts in Los Angeles, Orange, San Diego, Riverside, and San Bernardino — as well as in the smaller but more ideological counties in the Bay Area and north coast. A ballot-by-ballot trench war over signatures on provisional ballots — which took five months in far-smaller Minnesota in 2008 — is logistically impossible. The only other shortcut would be to stack the deck.
Maybe the first stage count, of counties where 306,000 votes were recorded, will show either that Perez won’t be likely able to come back (if, say, the numbers don’t move) or that a full recount is clearly needed. Maybe it will still be inconclusive. But — it’s worth a try. Here’s one such proposal.
2. The “306,000 Plan”
I propose that the candidates agree, as a first step, to count the following five pro-Perez and five pro-Yee counties, each listed from most to least highest vote raw vote margin:
Perez: Kern, Imperial, San Mateo, Yuba, and Glenn.
Yee: Santa Cruz, Humboldt, Shasta, Mendocino, and Siskiyou
In these counties, Yee received 66,376 votes and Perez received 66,373. These ten counties combined received 306,103 votes in the Controller’s race, meaning that Yee received 21.6842% of the vote and Perez received 21.6832% within them — ten times lower than the actual full statewide margin between them. (Currently, of the 4,039,375 votes that have been counted in the race, Yee has 878,195, or 21.7409%, and Perez has 877,714, or 21.7290%. In other words, in terms of existing vote totals, they’re a very good match for the results of the state as a whole — but are about 7.5780% of the ballots that would be addressed in a hand recount. We go from counting over 4 million votes to a sum equal to only 90% of the votes cast in Orange County. We can have the various counties (none of which are huge) count simultaneously rather than sequentially. And we avoid fighting over the fairness of a recount based on cherry picking.
I also think — in a suggestion that a prominent OC Democrat whom I shall not identify described as “dumb” — that the state Democratic party fund such a recount, which might cost $300,000. Hell, they could fundraise off of the prospect of such a recount right now and probably show a profit over it. The benefits of not creating a situation where Perez choosing to look for rejected Latino votes, while Yee is invited to go look for rejected Asian votes if she doesn’t like it, are worth a lot more than that to the party. But, alas, some people are not quick to move proactively and even less quick to learn from experience.
3. Legal Challenges
Scott Lay, in his Tuesday Nooner, wrote that people have begun to discuss whether litigation may be possible based on a case that Democrats would love not to remember: Bush v. Gore. This case includes some pretty good language — as part of a 7-2 ruling in that part of the opinion — about the importance of equal protection in statewide (i.e., multi-county) elections. You can’t just choose the counties within the state that you think are most likely to help you — let alone, ha-ha, only certain precincts that look most favorable to you within those counties. And that might matter here because — well, that’s exactly what the Perez campaign is doing. It is not only choosing 15 counties, but rather than planning to count the entirety of those counties using the same method it is asking that some counties be counted using a method that is likely to raise the number of ballots that count — a ballot-by-ballot count of rejected ballots — while other disfavored counties simply face a re-run of the machine count, which experience tells us does pretty much nothing.
Given that Perez is rallying under the banner of trying to ensure that “every vote is counted,” this is not the way to do it. In fact, it’s pretty high-order cynicism to say that you want every vote to count when what your demand shows that what you want is for every vote that you think is more likely to have been cast for you to count.
Bush v. Gore raises a few issues about California’s recount process that I don’t believe have been tested by the courts.
- Does a selective recount of counties and/or precincts determined by a candidate “value one person’s vote over that of another”?
- California’s process requires all precincts within a county to be recounted if the precinct selection changes the result, but does not trigger a recount in other counties.
- Once a recount is launched that requires payment by a candidate, does the other candidate have an equal protection (due process) right to have all votes in the subject election counted, even if that candidate does not have the ability to pay for the recount?
- If a race is changed by a selective recount, it is up to the other candidate to pay for an expanded recount. With campaign finance restrictions (including “voluntary” spending limits), does this unfairly constrain the candidate that didn’t institute the recall?
- Do significantly different election procedures, particularly in the challenges of matching signatures, among counties “value one person’s vote over that of another”?
- This is at the core of Bush v. Gore, wherein non-uniform processes for counting ballots disadvantage voters. California is not Florida, yet still has inconsistencies.
Now, we’re far from a lawsuit on these issues. For someone to have standing, the election would probably have to flip from Perez to Yee, which is far from a done deal. However, if that does happen, this could definitely end up in the courts, and it probably justifies a reexamination of California’s recount laws.
I disagree with Scott in only one respect: that we’re “far from a lawsuit” on these issues. The demand having been made to the Secretary of State, such a lawsuit is entirely ripe, right now, for someone who is concerned that their vote will receive disparate and inferior treatment. In fact, not only is such a lawsuit ripe — but I think that barring some agreement between the campaigns as to how to proceed, it’s probable.
4. The Worst Problem with Perez’s Recount Demand — That Maybe His Own Lawyers Missed
Here’s the problem that I think will kill Perez’s recount demand, if anyone files suit. (Got a bunch of money to burn? Call me!) The problem stems from Perez’s statement that “priority counties” be subject to a hand-count, including potentially challenging all rejected ballots, while following that count Perez could ask that the procedure be switched to an ineffectual “machine count” for the rest of the counties, which are required by law to undergo some sort of recount.
This creates Bush v. Gore problems of differential treatment. Indeed, it’s apparently supposed to. But it does something that is, from a legal standpoint, far worse: it prevents Yee, or anyone else, from ever asking that an intensive hand-count be done on those ballots.
Here’s the key phrase — for which I haven’t yet found a primary source — from John Hrabe’s “CalNewsroom” article earlier today, which is very much worth reading:
The targeted recount can be stopped at any time, because Perez is footing the bill. A statewide recount could cost several million dollars. According to the Secretary of State’s office, if Perez begins to pick up votes, Yee’s campaign could at “any time during a recount and for 24 hours after it concludes” request her own recount, “as long as it does not include any precincts that were recounted as part of a prior request.”
Presuming that Hrabe and his Sec of State source is correct, do you see the problem? By demanding a hand recount of only 700 of the 4300 precincts in Los Angeles (plus whatever he added on later), Perez would have in effect preempted the ability of Betty Yee to later seek her own hand recount of the remaining 3600 precinct in LA — including precincts in some heavily Asian areas. If any precinct in Los Angeles (or any other) County are counted, then all of the precincts have to be counted — that’s the law — but even if the disfavored precincts receive only a lousy and cursory machine recount they are still put out of Yee’s reach, should she wish to treat them equally to the other votes that got aggressive special treatment.
That, I suggest, is unconstitutional. If I were an Los Angeles County-based attorney who supported Yee, I’d be writing up a constitutional challenge to Perez’s plan to hand-count only some of the ballots based not only on the Fourteenth Amendment Equal Protection Clause, but on the Fifteenth Amendment. Perez, I think that it can be shown, chose his precincts to count (and not to count) in effect due in large part to race and ethnicity. (He specifies hand counts in 23 precincts in 97% Latino East LA, while only 1 precinct in 77% Asian and Pacific Islander Monterey Park — despite that East LA is only twice as large. And I’ll wager that that Monterey Park precinct is part of that 23% that isn’t majority AA/PI.)
Do you want to avoid this sort of constitutional challenge? Lucky you, there’s a way around it. It’s called the “306,000 Plan” — and it’s right up there in Section 2 of this post. There is a possible way out, if Democrats are wise enough to grab it!