County presidential primary vote fight spills into courtroom

An ongoing fight over the way results from last June's primary election are verified made its way to court Wednesday afternoon (July 6), with plaintiff Ray Lutz and his Citizens Oversight Projects group taking on county registrar Michael Vu, who is set to certify last month's results over the objections of Lutz and others.

Citizens Oversight counsel Alan Geraci argued that elections across the country have regularly been "riddled with problems," including voter suppression or miscounts. He pointed out that ballots cast electronically are potentially at risk by hackers or poll workers with malicious intent. Geraci also cited a "record number of provisional ballots cast" in the primary as a cause to invalidate the count by Vu's office, which he charged was illegal.

Under state law, a manual tally comprising 1 percent of cast ballots must be taken in order to safeguard against errors in tabulating other ballots by machine. Citizens Oversight charges that Vu excluded late-arriving mail ballots and "provisional" ballots — allegedly provided to thousands of independent voters attempting to vote in the Democratic open primary by mistake — when collecting the 1 percent sample to analyze. In total, mail and provisional ballots made up approximately 300,000 of the 700,000 ballots cast on June 7, with about 68,000 of those being strictly of the provisional sort.

The provisional ballots from independents, Citizens Oversight argues, were likely in large part cast by supporters of Democratic presidential candidate Bernie Sanders — possibly enough of them went uncounted to flip the county's election results from presumptive nominee Hillary Clinton to Sanders, though Lutz has previously insisted his challenge was not lodged primarily in support of Sanders.

County counsel Timothy Barry, meanwhile, argued to judge Joel Wohlfeil that Citizens Oversight's argument failed to meet "an extremely heavy burden of proof" that harm would come if thousands of additional ballots had to be included in the random sample, creating extra costs for the registrar's office.

"Every ballot is counted," Barry assured the court, noting that other counties within California had used similar vote-counting practices. Barry said that several other counties had declined to submit supporting commentary following a "threatening" email sent by Lutz on July 4 warning them not to certify their own results until his suit was heard in San Diego.

Geraci called the alleged financial hardship to the registrar's office "hogwash."

"If you think the way the law is written is too much a burden on your budget, take it up with the secretary of state," Geraci advised.

Wohlfeil, citing a significant case backlog for his department and the court system in general, declined to rule on the matter at the hearing's conclusion, instead saying more time was needed to study the matter. In the meantime, Vu's office has already certified the presidential election results and is expected to do likewise for other races within the coming days.

Barry noted, however, that there would be an opportunity for citizens to request a recount following the certification.