The California Legislature decided to do something a bit wonky this week and amended an unrelated bill to include a change to the Elections Code in regards to a manual “hand count” of ballots after an election.
This change has caught a lot of people off guard, and the reaction has been a bit negative.
However, I wanted to clear things up a bit for people unfamiliar with the law and the controversy around it. While the change to this bill was last minute, the drafted language has been floating around for almost a year.
Ultimately, it should be understood that this bill doesn’t change the current law related to manual tally; it overrides a recent misinterpretation of the law by a judge in San Diego and makes the law easier to read.
What does the law require?
The law requires that votes counted using a machine on Election Day, such as with an optical scanner, need to be subject to a 1% precinct manual hand re-count. The measure was implemented by the Legislature as extra “assurance” that machine counts are accurate and free from fraud. (Note: this is just one of many redundant measures in place to ensure that counts are accurate and free from fraud.)
This means that at least 1% of the precincts that have ballots cast on Election Day or sent in via mail before Election Day have those ballots recounted by hand.
What did the judge in San Diego think the law required?
The judge insisted that the law meant that every ballot counted after an election, including every vote-by-mail ballot and every provisional ballot, needed to be a part of this 1% manual tally.
Why did he think that?
The plain language of the statute leaves vague which ballots needed to be included in the 1% tally.
To help bring clarity to the law, the judge also looked at a bill analysis from the last major change of this law in 2006. However, in the judge’s order, he quoted language that was based on an earlier version of the bill that was not ultimately passed into law. This was likely an error on the judge’s part that affected his ruling.
Was the judge wrong to think that all ballots should be included under the law?
Yes. While the law seems vague and could be interpreted to mean that every ballot should be included in the 1% recount, a quick look at the legislative history for the statute makes clear that 1) the inclusion of provisional ballots was specifically and intentionally left out of the law, 2) the State did not intend to fund the extra costs or endure the extra delay in including every ballot, and 3) when the law was changed in 2006 to explicitly include vote-by-mail ballots, the previous law had been interpreted to exclude such ballots.
Does that mean we shouldn’t hand-count all the ballots?
Not necessarily. There are a lot of people who don’t trust the machines to count things. And trust in an election is important.
However, we need to find more efficient and effective ways to vote and count votes, to increase turnout and ease-of-voting, and reduce costs associated with counting so that the funding can go to improvements in outreach and education efforts.
Our goals should not include increasing use of redundant, slow, and costly methods, but instead we should be working on ways to make the public more familiar with and accepting of new technologies.
We should be working towards internet voting. If we’re moving in the other direction, that’s a very bad thing.