On April 12, a California Superior Court in Alameda County ruled that when voters exercise their statutory right to a recount, elections officials must produce information from “inside” electronic vote-counting machines. The case was filed in November 2004, after Alameda County was asked to recount the vote on a ballot measure, Berkeley’s Measure R. Alameda County used Diebold electronic touchscreen machines for voters at the polls (voters who voted by mail used paper ballots). Supporters of Measure R, which had narrowly been defeated, asked to see back-up data that is stored inside the machines. They also asked to see the audit logs generated by the vote-counting system that show whether the system functioned properly. Finally, they asked to examine the results of “Logic & Accuracy” testing that had been performed on the machines before and after the election. The county had denied all three requests.

The judge said that the plain meaning of the word “recount” required the county to produce all the requested records. The court also cited the California Constitution (Article II, sec. 2.5), which protects the right to have a valid vote counted. Finally, the court cited Bush v Gore, and said that since the absentee mail votes could be recounted, that the voters who voted at the polls were treated differently, and the differential violates equal protection. Since the machines no longer contain the requested data, another hearing will be held on May 4 to determine whether the county should be sanctioned for not preserving the records. The case is Americans for Safe Access v County of Alameda, RG04-192053. It took this long to get a decision because initially the Superior Court had denied relief, but the State Court of Appeals last year had remanded the case back to the lower court with instructions to hear it over again.