Thursday, January 17, 2008

Tentative decision in San Diego case favors Secretary of State

San Diego Superior Court Judge Patricia A.Y. Cowett issued a tentative ruling yesterday in the County of San Diego vs. Debra Bowen case in support of the Secretary of State.

The County of San Diego, led by registrar of voters Deborah Seiler and joined by three other counties (Kern, Riverside and San Bernardino) sued the Secretary of State for imposing new post-election manual tally requirements to verify the accuracy of vote counts as conditions for recertifying numerous voting systems in California. These requirements include a ten percent manual tally of precincts' ballots in close contests (where the semi-official results are within .5 percent), an escalation of manual tallying when discrepancies are found during the one percent manual tally process, and a tabulation of overvotes and undervotes as part of the post-election manual tally process.

San Diego and the other counties argued in their lawsuit that Secretary of State overstepped her authority in imposing these requirements; that the requirements were regulations; and that the requirements were capricious and arbitrary.

In her tentative ruling, Judge Cowett said that Secretary of State Bowen did "not directly exceed her authority. The SOS has the authority to implement specifications and regulations pursuant to Elections Code sections 19201, 19205 and 19222" and that "the court finds the requirements do not exceed the SoS's authority". She also tentatively ruled that the Secretary of State's actions were not arbitrary or capricious since they were based on a comprehensive voting system review and on conclusions of the Post Election Audit Standards Working Group. Finally, Judge Cowett tentatively ruled that the requirements do not constitute regulations because they do not apply universally to all voting systems. Indeed, there are three counties -- Lake, Madera and Sonoma - - that are using legacy DFM Mark-a-Vote systems that were not reviewed or recertified with conditions, and thus are not subject to the additional post-election manual tally requirements.

The tentative ruling is good news for election verification. Today the two sides responded to this ruling in San Diego and we will wait until Friday or Tuesday to see what the judge's final ruling will be.

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