In what appears to be a landmark case, the Alameda Superior Court tentatively ruled this afternoon that the County acted irresponsibly in their handling of electronic votes from Berkeley's November 2004 elections. In that election, Measure R -- which would have eliminated restrictions on the amounts of marijuana Berkeley patients and caregivers could possess - lost by a narrow margin of 191 votes. Immediately, Measure R's proponents called for a recount. The county complied, and manually recounted the city's paper ballots. However, roughly half of the city's ballots had been cast on Diebold electronic voting machines, and for these votes the county simply returned the same results that the machines had tallied on November 2.
But, as numerous computer whizzes have shown, electronic voting systems are susceptible to hacking and database corruption. So a simple reprint of the electronic vote tally is not really a "recount". Rather, as the plaintiffs in Americans for Safe Access vs. County of Alameda [Case Number RG04192053] argued, only an examination of the machines that logged these votes and the data they contain would constitute a true recount.
One tiny problem: the data is gone. Only 20 of the 482 voting machines used in the election still contain any copies of the Measure R votes. The rest were overwritten and destroyed for use in subsequent elections.
In the tentative ruling, Judge Winifred Y. Smith found that the county failed "to fulfill its obligation to preserve the information that was reasonable [sic] available to them at the time of the recount." Smith will issue a final ruling tomorrow morning, after the court hears oral arguments from both sides.
If the tentative ruling is affirmed, Measure R's November 2004 results will be nullified, and the measure will reappear on the ballot in the next general election.