Broadwater’s Recount in the Garden Grove Mayor’s Race May Wreak Havoc in the Viet Community (UPDATE: Or Not, As He Gives Up)





Butterfly Ballot Bandage

It’s been 14 years since a design flaw, compounded by a misunderstanding about the instructions to be used, significantly complicated the recount of “butterfly ballots” in the Presidential race in Palm Beach County, Florida

The Voice of OC  reports that, unsurprisingly, Garden Grove Mayor Bruce Broadwater will seek a recount of the ballots in his race for reelection, which put challenger Bao Nguyen up by 15 votes out of 23,555 cast between the two of them.  (A third candidate, Albert Ayala, picked up another 4,234 votes, but it’s unclear who would have gotten those votes without him in the race.)

While this week many people have been celebrating Bao’s apparent victory in this race as if it were a fait accompli, I haven’t been able to join in the joy because it seemed obvious that Broadwater would demand a recount.  He’s got nothing to lose except other people’s money — and plenty to gain.  And he could well succeed, even without really deserving it, if his attorney plays dirty.

Sometimes people think that whether to call for a recount is just a matter of how close the numbers are — with any number lower than 10, or 20, or 30 (depending on whom one asks) justifying a recount.  But that isn’t usually the actual strategy at all — the OC Registrar of Voters has state-of-the-art technology and does not make a whole lot of simple arithmetic errors.  Anyway, a machine recount of these ballots would take perhaps a day, not the five to seven days that the Registrar estimates.  We’re looking at a hand count — and that can mean opportunity for mischief.

One generally wins a hand recount through a different means that just making sure that every vote was counted (and counted only once) — one that is likely to prove extremely corrosive within Garden Grove’s Vietnamese community in particular: disqualifying ballots.  And the ballots that are most readily challenged are those which probably gave Bao his lead: our old friends the provisional ballots.  The second most likely to be challenged are absentee ballots — although while signature discrepancies on the ballot envelopes are possible, I’m not sure whether an absentee ballot coming from an envelope with a questionable can still be located and extricated from the results.  (I suspect that it can’t.)  If OC works like other jurisdictions that have seen recounts, though, provisional ballots can still be located.

Let’s review some of what we’ve discussed this month: by and large, the seven kinds of ballots that are counted are:

  • machine-counted ballots cast at the polls, including (1) non-VBM (formerly “absentee”) voters and (2) VBM voters who surrender their ballots and vote in the polling booths
  • VBM ballots, including those (3) that arrived early enough to have been counted before Election Day and released five minutes after the polls closed, (4) that came in later than the above, but still by 8:00 p.m. on Election Day, and (5) that were returned at the polls
  • (6) paper ballots cast at the polls by people who prefer not to use voting machines
  • (7) provisional ballots cast at the polls by those whose eligibility to vote remains under question for some reason

As a reminder, and this is part of why I memorialized the first flush of results in this post, Bao started out Election Night well-ahead in the absentee ballots in category (3), thanks apparently to the exceptional VBM campaign that has been typical of the Vietnamese community:

Completed Precincts: 0 of 87
Vote Count Percentage
BAO NGUYEN 5,875 45.3%
ALBERT AYALA 1,776 13.7%

By the end of the day (technically early the next morning), though, with categories (1) and (2) also counted, Bao had fallen behind:

Completed Precincts: 87 of 87
Vote Count Percentage
BAO NGUYEN 8,659 41.5%
ALBERT AYALA 3,203 15.3%

(Note that these in-person votes, unlike most of the early absentees, were cast after Broadwater’s outrageous attack on Bao as a communist sympathizer came out about two weeks before Election Day.)

The steady ascent of Bao over the last week of counting suggests that it was a systemic factor at work rather than, say, just uncovering one really good batch of ballots.  What was that factor?  All that remained to be counted at that point were categories (4) through (7).  People who VBM ballots arrived late — in the mail or by hand — may be part of the same population as the early absentees that when for Bao by over four points, but they’re also the ones where the Vietnamese early voting machine wasn’t operating so well, as evidenced that they came in so late.  It’s unlikely that paper ballots made a systemic difference.  Random luck on any given day could have worked against Bao as easily as it could have benefited him.  Provisionals could have made a difference, but the experience of Jay Humphrey’s failure to pull ahead at the end in Costa Mesa casts doubt on how many of them counted.  So what was it, then?

Remember up when I was listing the types of ballots, and I wrote “by and large“?  This was why.  Within each of the seven types of ballots, you can theoretically have two subcategories: (A) undamaged ballots and (B) damaged ballots.  Damaged ballots cast through the voting machines would be quite rare, so this will generally be absentee ballots — although it can include some paper and provisional ballots.  So, remember when that extra 3000 or so ballots showed up near the end of the count?  Those were largely damaged VBM ballots from categories (3), (4), and (5) — which we’ll now call (3B), (4B), and (5B).  It would not be surprising if Vietnamese absentee voters, both plentiful and operating in a different language, had a disparate share of “damaged ballots” — given that such “damage” can come from failures to follow voting instructions.  (They surely did a lot better than I would do if casting a ballot in Vietnamese.)

The effect of damaged ballots flowing into the stream of late-counted ballots explains both why Bao pulled ahead and why Humprhey did not.  While Bao led Broadwater in the first release of VBM ballots, Righeimer led Humphrey significantly in that same initial count.  Humphrey beat Righeimer badly on Election Day itself.  But that first count was the one that had most in common with the count of the last few days of tallying.

Damaged ballots have to be retained, to allow for verification that the votes were transferred faithfully from the originals to the replacement ballots that could be machine counted.  That is an area where human error is more possible than elsewhere.  So, one would expect that the focus of a recount would be on category (7), provisional ballots, and  (3B), (4B), and (5B) — damaged VBM ballots.  Possibly, it could involve looking at envelopes for undamaged VBMs as well, but problems there might not be remediable.

In other words, we may be about to get a much closer look at the ins-and-outs of casting ballots in the Vietnamese community than we have ever seen before.  Conceivably, an exploration of provisional ballots could involve calling voters into court (if it gets that far) to testify that the signature on an envelope — in some cases, by people who don’t speak English — was actually theirs.  That’s a daunting thing for a native speaker who is not deeply embedded in their ethnic community to do.  Will they show up to testify?  Broadwater may benefit if they don’t.  And that, in turn, means that pressure could be brought to bear on them — not necessarily by Broadwater or his campaign himself, but by one or another political faction within the Vietnamese community — not to show.

Broadwater’s best chance to win might well be not only in people not showing up to confirm their signatures, but in demonstrating the probability of voter fraud — generally believed to be quite rare, but rarely in such a good position to be discovered as this — regarding either absentees, provisionals, or both.  His pursuing the sort of aggressive ballot disqualification strategy that one might normally employ in a recount could lead to significant damage to the Vietnamese community if it leads to dragging individual voters into the spotlight — as this is the sort of thing that may discourage future voting.  If any improprieties were revealed, that damage would become severe.  It will be interesting to see how aggressively he instructs his attorneys to fight against members of his city’s key ethnic voting constituency.

Bao with Books

UPDATE:  Pedroza’s blog reported yesterday that the recount is over;  Bao Nguyen is mayor – a spectacular bright spot in this year’s mostly dismal midterms.  The Orange Juice will be reporting from his victory party at the Garden Grove Ramada, this Sunday at noon!

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)