As CDP Chair Ballot Review Nears Conclusion, Here’s What It (Maybe) Was About (Part I)

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The room where the whatever-it-is has been happening. That’s outgoing CDP Controller Hillary Crosby, the leading Ellis supporter within the party, at the far right. (“Stage left,” that is.)  Photo taken from the California Democratic Twitter feed.)

(1) What’s NOT Happening, and Why It Isn’t, and Why It Also Sort of Is

It’s been harder than usual trying to distinguish between what information is and isn’t usable in reporting, given that much of it has been emanating from public, closed, and secret Facebook pages as well as private emails and messages.  So I’ll try to stay long on non-secret information here while being somewhat short on attributions.  If you think that means I’m making things up, fine.  I’m not.  This is also not based on any insider knowledge that I’ve had from the Ellis campaign since I left the convention at around noon on Sunday May 21.

The best way to explain what has been happening since Sunday — when (as my friend Joel Block writes today (in an article where I disagree with about half of the bullet points, but read it anyway) a private agreement was reached between the party and the two “real” campaigns for Chair as to how to proceed with a “ballot review,” as people now seem to be calling it — is probably to describe what is NOT happening, despite allegations to the contrary, so let’s start there.

(1A) It Hasn’t Been a “Recount” of Ballots

I mention this because the initial reaction of the progressive Bauman forces online (and yes they exist, and they have their reasons) was largely to say “hey, recount the ballots all you want!  Seven (or whatever) people already counted them in full view of others!  That number is not going to change!”

True indeed.  One lesson of recounts is that the number of raw ballots available to the people doing the counting rarely changes by as much as 2.1% — the margin published on Sunday — and so simply recounting ballots is not where changes may occur.  While there are calculation errors and late-located ballot stashes and that sort of thing, the days of simply stuffing extra ballots into a box or snatching some out of the box are mostly over — especially when you have signed ballots in a population of only about 3,000.  The questions that come up are instead largely along the lines of (1) “is the intent of the ballot clear to the degree required?” (2) “was the ballot cast and tabulated properly ?”, and (3) “was the ballot cast by a voter eligible to do so?”  Counting ballots is a lot more sophisticated than just counting sheets of paper in a pile.

So, while recounting ballots has presumably been taking place, what has been taken place is not a “recount.”  For one thing, a recount of 3,000 ballots would not have taken more than a day or two, depending on how many people you wanted to independently count each pile.

(1B) It is Not a Formal Audit

The Ellis campaign, from Sunday morning on, referred to the procedure as an audit.  The leader of its team, Hillary Crosby, is herself an “auditor.”  Outgoing Chair John Burton referred to it as an “audit” from the fracking stage.  (Children may read this, so I use the word “fracking” because Democrats think that they should learn more about it.)  And yet, one of the attacks on the “ballot review” is that this was not an “audit” because and audit is done by an independent and impartial third party, etc.

Bravo!  Yes, it is not a formal audit.  And yet, how does the dictionary define the term “audit”?  Merriam-Fracking-Webster gives two definitions:

  1. a formal examination of an organization’s or individual’s accounts or financial situation” The audit showed that the company had misled investors.

  2. a methodical examination and review”

formal audit is definition #1, and is usually done by independent experts (an external audit.)  An informal audit may precede an external audit and be done internally by inside officials who have first ensured that all documents are accounted for and preserved.  (The internal audit may also be conducted by an outside law firm hired by the organization so that the organization can know in advance what the external auditors are likely to find.  I used to do this in New York.)  That audit may then report factual information to outside investigators.

This can even happen where, as here, two parties with hostile interests would prefer to see diametrically opposed conclusions.  So long as each can see what the other is doing and no documents are added, subtracted, or altered, each party can then identify the evidence that they think is important so as to alert the independent auditors as to where they should be able to find it so that it can influence their conclusions.

That is pretty much what has been happening here.  Not itself a formal audit, but a procedure that will make the review of materials by an impartial third party — which conceivably could ultimately be an outside court — far more efficient and effective.

It might be best to call it an “investigation,” but that promises too much given the limited scope of powers of people in the room.  In legal terms, it has a lot to do with a process called “third-party discovery,” where the opposing parties will both review material held by a third party that is pertinent to their case.  But what it certainly is is a “methodical examination and review” of some sort.

(1C) It is Not a Star Chamber or Kangaroo Court or a Carnival Game

First, contrary to some assertions, my understanding from the party is that neither candidate has been present during the review.  Both parties have been present.  And both parties agreed to that ahead of time.  Some Bauman supporters claim to have gotten a different impression from a piece of perhaps unfortunate wording in a letter sent out by the Ellis campaign about the process, as follows:

“The Kimberly Ellis campaign is calling on Eric Bauman and anyone associated with his campaign team to recuse themselves from any involvement in the current audit of the election materials related to the California Democratic Party Chair’s race.”

This could be read in one of two ways: a nonsensical way that makes Ellis out to be an astonishingly brazen villain, and one that makes her out to be someone who is smart enough to recognize a threat to the integrity of the procedure.

Ellis’s critics read it as “WE want to be in the room where the ballots are reviewed and we want THEM to NOT be in the room.”  This might, then, allow the Ellis team to chloroform or hypnotize or use Jedi mind tricks on the party officials present, and while they are incapacitated to erase the marks voting for Bauman and replace them with votes for Ellis.  Or something like that.  Either way, it is clear — both from the recognition that she understood HER team’s right to be in the room and that she has ACTED since then as if she has understood it — that she was not trying to rid the room of eyes who could pry into nefarious tricks.

The alternative interpretation is that this referred specifically to Bauman and his supporters acting in their capacity as party leaders and staff who could decide or influence decisions as to how the party would cooperate with such an undertaking.  In the next section, for example, I refer to reviewing of credentialing forms and of ballot registration forms, including any information about who processed either.  The party could choose to cooperate with such a request — or to try to block it.  Her point — which strikes me as pretty obvious — was that Bauman and his campaign team should not play ANY role whatsoever in such decisions.

(1D) It is Not Actually Just a “Ballot” Review — or At Least It Shouldn’t Be

I don’t know what has been going on in that room, but if they’re looking at whether people were eligible to vote they should be looking at at least four other kinds documents other than the ballots themselves.  The first is obvious: the additional receipt that the voter signed upon picking up the ballot.  The second is fairly obvious: the credentialing form.  At a minimum, one wants to make sure that the signature on the credentialing form matches that on the ballot and its receipt.  But one also wants to know what sort of voter this was: the issue is not so much “appointed delegate” versus “elected” or “ex officio” delegate.  The issue is whether one is the delegate her- or himself, versus someone acting as a proxy for the delegate.  It’s the proxy system where mischief is most likely to occur.

The next two forms are less obvious.  First, the persons doing the ballot review should get to see the proxy appointment sheet (or sheets, if appropriate) showing that the person was actually appointed as someone’s proxy with the permission of the actual delegate.  This — subject to conditions below — rules out situations in which a proxy could have been appointed by someone without the permission or assent of the delegate.  (Ideally one would like to know what conditions the member may have placed on their proxy.  If someone wanted a proxy who would vote for Candidate A, but an party official (most likely at the local level) sympathetic to a rival campaign chose a proxy who intended to vote for Candidate B or C, then that is a huge problem.)

Second, the persons doing the ballot review should get to see the documentation that shows that person receiving the proxy appointment was actually eligible to serve as the member’s proxy.  I’ve told the story on Facebook, though not here, that my daughter (a fellow Central Committee appointed delegate) wanted a proxy to vote for the same candidate I supported, but would not be able to do so due to work commitments and a death in my family (a funeral that I missed to attend the convention, with the assent of the relative whose mother it was.)  Three times, we thought that we had an eligible proxy for her — and three times, that prospective proxy turned out not to be available or eligible.  In the end, she couldn’t vote, and she could not send a proxy to cast her vote for her.  We followed the rules.

Rumor has it that rules were not always followed.  For one side to have followed the rules and the other side not to have followed the rules — and there are plenty of places above where it would be easy to simply forget something, or to be waved on to the voting table by a friendly staffer — is flat-out unacceptable.  Where you have an insider versus an outsider candidate, this is always a very sensitive possibility.

What else might they want to check besides these four documents (or sets of documents, as the case may be.)  As many have noticed, we didn’t (at least not routinely and uniformly) require identification, either at credentialing or at the election itself.  Instead, we used the same identification requirement as the one that the State of California uses for established voters: a signature match.  Every delegate or proxy should by definition be a registered voter — and that means that we can rely on the state institution that provides the continuity that we as a party don’t have: the person’s home county Register of Voters office.  (Yes, one could still have forgeries, but we probably don’t need to work that hard here.)

One either checks for a signature match in situations like this, or one signals to future campaigns not to worry, because even in a close race signatures matches won’t be checked.  And, sadly, if people know that it’s that easy to cheat — if, for example, one person could serve illegally as the proxy for three different people, coming through the line three times — then they may.  It’s not a felony to do so in a CDP election, after all — probably not even a crime — and no one faces even a bogus threat of deportation over it.  These are not voters exercising a secular equivalent of a sacred right in a public election; these are people voting privately in an organization embedded in the State Constitution, that is required by its charter and Bylaws to process the votes fairly.  There need not be the same expectation of privacy as present in a public vote, though of course there should (and need and must) be no harassment either.

My guess is that those steps are what has taken more time — and still may!  But if we take the election seriously — as we should — and are relying on a signature match for identification of qualified and actually appointed voters, then there’s no shortcut to actually checking.

This is being published at 7:20 p.m. on Wednesday, May 31, and will not be revised in light of any information I may learn from any confidential source after that time.  I still haven’t gotten to the reasons for suspicion, though — we’ll have to leave those for Part 2.

Ran out of time, alas — to be continued!


About Greg Diamond

Somewhat verbose worker's rights and government accountability attorney, residing in northwest Brea. General Counsel of CATER, the Coalition of Anaheim Taxpayers for Economic Responsibility, a non-partisan group of people sick of local corruption. Deposed as Northern Vice Chair of DPOC in April 2014 when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Occasionally runs for office to challenge some nasty incumbent who would otherwise run unopposed. (Someday he might pick a fight with the intent to win rather than just dent someone. You'll know it when you see it.) He got 45% of the vote against Bob Huff for State Senate in 2012 and in 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. A family member co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)