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Judge rules on tally dispute - Alameda County cited over access to vote material

Alameda County elections officials violated the California Constitution and election law by refusing to provide data about Diebold touch-screen voting machines to proponents of a failed ballot initiative seeking a recount, a judge ruled.

Superior Court Judge Winifred Smith ruled last week that accuracy test results on touch-screen voting machines, internal command logs, copies of electronic ballots and records of who had access to those ballots were "relevant" to conducting a recount of an election with fully computerized voting.

If appealed and upheld, the ruling could require elections officials statewide to provide detailed records about the operation of electronic-voting machines and software as part of a recount.

Ruling Applauded

Matt Zimmerman, an electronic-voting expert at the Electronic Frontier Foundation, applauded the ruling as "an absolute, best-case scenario."

"There's certainly no motivation here for elections officials to want to voluntarily turn this over because any indication that anything went wrong implicates their administration and their selection of the machines in the first place," Zimmerman said. "We haven't had a good ruling like this to tell elections officials to follow the law."

County officials said when they made the decision not to release the information, it was the best one they could make at the time. "There is a rear-view mirror of what is relevant, but now we are dealing in an electronic age," said Alameda County Counsel Richard Winnie. "At that time it wasn't clear."

Smith's ruling is the result of a long court battle that started after Berkeley's Measure R, which sought zoning and other regulations favoring cannabis dispensaries, failed in November 2004. Alameda County elections officials led by then-Registrar of Voters Brad Clark charged a national medical-marijuana group, Americans for Safe Access, $22,000 for a recount consisting of printing out the same electronic records in the original tally.

Group Sues

The group sued after Clark denied its request for the additional records, which would have shown any discrepancies in tests of the voting machines before the election, any breakdowns on Election Day, any software changes made during or after the voting and any discrepancies in the handling of the PC cards used as electronic ballot boxes.

California election code says that challengers to an election are entitled to examine any ballots "voted and unvoted" plus any other "relevant materials." Clark determined that the requested records were not relevant for a recount of electronic ballots.

An early ruling by a judge concurred with Clark and the case was dismissed. But the state Court of Appeal reversed the decision last April and sent the matter back to Alameda County Superior Court for a determination of what "relevant" means for electronic voting.

Smith found that records on the operation of the voting machines and access to them met the broad definition of "relevant" for the purpose of a recount.

Alameda County's Winnie said county officials "acted in good faith."

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