Lou Correa Calls for a Recount! (But for WHAT KIND OF Recount?) UPDATE: Maybe a GOOD Kind!

LouCorreatheTankEngine(bigeyes)

Lou gets the recount train rolling! But where will it go?

Excitement continues!  Lou Correa has called for a recount in the First Supervisorial District election, the finals results of which certified him as losing by 43 votes to Andrew Do.  (Do is apparently being sworn in today, but under the right circumstances that might not stick.)  For a good backgrounder (with which I disagree in parts), do read As Chris Nguyen’s piece this morning at OC Political.

[NOTE: if you live in the First Supervisorial District and you want to see aggressive reform actions, be sure to read the section at the bottom of this post, in red!]

I didn’t think that Correa would do it, because of the likelihood that it could involve burning bridges with the Vietnamese community.  So this is good, right?

All I can say is: “Probably.”  It is probably good — but not necessarily that good.  You see, there is more than one kind of recount.  One means fighting to the finish and possibly unearthing serious corruption.  The other means just making a token protest and then giving up when it fails.  It’s not clear which Correa has in mind.

If Correa does what Bruce Broadwater did in the Garden Grove Mayoral race against Bao Nguyen — challenge some provisional ballots with what campaign money remains, get rebuffed, and then give up after a day — then it won’t do much.  If he does what the Measure J opponents did in December — use the recount process as a means of gathering information for a court case, then we can expect that he’s really serious.  But if he’s serious, he’s probably going to have to do a lot more than that.

All that Correa can ask the Registrar of Voters to recount directly are the provisional ballots.  In this instance, that’s good, but not great.  Neal Kelley showed in Bruce Broadwater’s recount that he will not likely reverse determinations made by his staff regarding the legitimacy of provisional ballots.  So that means that provisional ballots will have gone through two tests at this point — but neither of them will have been particularly strenuous, given the ROV’s (perfectly appropriate) bias towards including every ballot that seems that it could be legitimate.

Correa could use the recount to gather evidence needed to put provisional ballots up to a far stricter test — one that would take place in court.  But this approach, which seems to be called an “inspection,” isn’t as expensive as a recount, it’s still expensive — and it’s probably not all that likely to succeed anyway.  This “inspection” is what the Measure J opponents are doing with their lawsuit (about which there has barely been a word said publicly in the past month.)

There is another approach to take, though.  Call it “Measure J-Plus.”  It’s the same thing, but in Beast Mode.

The important thing to note here is that in a recount one gets greater access to documents held by the Registrar of Voters’ office than one would normally be provided.  For example, one can view — and, I believe, photograph — signatures on provisional ballot envelopes, which might later be used in a court case alleging fraud.

The problem is with limiting this documentation to provisional ballots.  There just aren’t that many of them — and, as Chris Nguyen notes, it is likely that Correa received more of them than Do.  (Where I disagree with Chris Nguyen is here: while Correa probably got more provisional ballots that Do, what matters is how many provisional ballots each received that are subject to disqualification for one of various reasons.

If there has been no concerted effort to commit fraud on either side, this should balance out.  If there were a concerted effort only on one side, though, then conceivably enough provisionals could be disqualified to shift the election result.  It doesn’t seem likely to me that any improper concerted effort of this sort took place regarding provisional ballots (and, if it did, it should be revealed and stopped!), but as I argued in a controversial post yesterday, lots of people seem to think that something of the sort is going on in Little Saigon, so I wouldn’t be shocked if provisionals there were far more subject to court challenge.

But doing that would mean operating only at a “Measure J opponents” level.  If there is election corruption in Little Saigon, it is far less likely to involve provisional ballots than absentee ballots — especially, perhaps, those that (due to a bill authored by Correa) are as of this election now allowed to trickle in over the three days following the election so long as they bear a postmark from Election Day or earlier.

The rules that made it effectively impossible to challenge ballots at the ROV level are relatively recent, enacted only in 2007.  I’m told that attorneys have been trying to find their way around them since then — and that the innovations of the Measure J people (which Correa would be wise to copy) are one example of this effort.

I’m not convinced — although anyone is welcome to try to convince me — that they could not be pushed further.  Even if absentee ballots can’t be challenged at the ROV’s office, they should still be able to be challenged in court — and evidence (including photos of signatures from absentee ballot envelopes, which could later be compared to voter rolls.)  At a mimimum, such an effort would deter some of the most likely pathways to future voter fraud.  And for those Democrats reading this who are currently clutching their chests because this technique could be used against Democratic areas as well as Republicans — I see that as a good thing!  I would like to believe that Democrats have nothing to hide — although I know that many Republicans believe otherwise — but if that isn’t so then I don’t want Democrats to be cheating.  The sorts of Democrats who would cheat are not the ones that I want to survive our primaries.

The question is: should Correa just be left to his own best judgment hereor should someone else demand a recount as well just in case he doesn’t choose the most aggressive path, including possible extensive (and perhaps controversial) litigation?  Any other candidate or candidate’s committee in the First District can call for a recount — which could end up being the sort of “inspection” described above — and so could any other voter in the First District.  All they might really need is a lawyer with a camera.  (I happen to know one or two.)  The deadline to file a letter requesting a recount is tomorrow, February 4, at 5:00 p.m.


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.)