Re-Vote Likely After E-Vote Error

A California judge is likely to order a Berkeley city initiative back on the ballot because of local officials' mishandling of electronic voting machine data, a public-interest lawyer arguing the case said Friday.

In a preliminary ruling Thursday, Judge Winifred Smith of the Alameda County Superior Court indicated she would nullify the defeat of a medical marijuana proposal in Berkeley in 2004 and order the measure put back on the ballot in a later election. A hearing on Friday morning in advance of a final ruling brought out nothing that indicated Smith would deviate from her preliminary decision, said attorney Gregory Luke, who is representing Americans for Safe Access. The medical-marijuana advocacy group is suing the county, assisted by the technology rights group Electronic Frontier Foundation.

The case points to the dangers of electronic voting systems, which make it harder to ensure fair elections, Luke said. Electronic voting machines have been widely adopted in the U.S. since the disputed presidential election of 2000. Laws in California and some other states now require paper records of all votes, but the California law wasn't in place for the Berkeley election.

Both sides argued their cases before Smith on Friday in a last-ditch hearing on the proposed sanctions, according to Luke. The hearing brought out nothing new that suggested Smith would change direction, he said.

Americans for Free Access sought a recount of the vote on Measure R, which would have established procedures for opening marijuana dispensaries in Berkeley. It lost by fewer than 200 votes. A recount wasn't possible because the city didn't share the necessary voting records, in violation of election laws, Judge Smith ruled in April. In May, the county agreed to share some data.

The county reused voting machines from Diebold Election Systems Inc. without saving sufficient data to carry out a recount or review the election process, Luke said. Officials failed to save key evidence even after the suit was pending, he said. Data from the vote in question has only been found on 20 of the hundreds of machines used in the election, according to Luke.

In addition to ordering another vote on Measure R, Judge Smith's preliminary ruling called for the county to pay the US$22,604 cost of the recount, as well as attorney's fees and the cost of a trip to Diebold offices in Texas.

Ordering a new vote is a rare move for a court, Luke said.

"This is a very severe sanction. ... and it's warranted," he said Friday.

Luke expects a final ruling in the case within two weeks. The county could appeal to a higher court if the ruling goes against it, he said. Attorneys for the county were not immediately available for comment.

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