Smoke Me, Tax Me, King Me, or How to Make Sense of a California Recount

The words "I demand a recount!" may rattle around in our collective pop consciousness like a TV jingle, but they're not uttered very often in earnest, at least not in the same breath as the word "proposition."

It's possible, in fact, that until a Bay-area surgeon demanded a recount for Prop 29, the cigarette tax initiative that was pinched out in the June primary, no certified result from a statewide ballot measure contest had ever been challenged in California.

A recount is so far from standard operating procedure that my asking a few clarifying questions about the process prompted a short flurry of calls between state and local elections officials as they rushed to compare notes.

"One of the people I spoke with was an elections official with 30 years of experience, and she couldn't remember another recount," said Cathy Darling Allen, who helped me find and check several of the facts for this piece. Allen is the president of the California Association of Clerks and Elections Officials and the current Shasta County Registrar of Voters.

If even the people charged with administering our elections need a refresher on how to handle a recount, then imagine the rest of us. The first thing I pictured was a small army of volunteers across the state tallying each ballot by hand, with stacks and stacks (and stacks and stacks) of the things surrounding them like paper pillars. Not so -- at least, not necessarily so.

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It turns out a recount done in just one county can flip the outcome of an entire statewide contest. It doesn't even have to be a manual tally. The same machines that counted the ballots the first time can be used again. And anyone who doesn't like how the first recount is going can call for another somewhere else.

The process could conceivably continue for months, with each side picking up some votes in this county, losing some in that (and all this, by law, at their own expense). Seeing the rules played out in real life, a recount begins to look less like factual verification and more like a series of strategic maneuvers in one granddaddy game of checkers.

But none of the moves will make sense if you don't know the rules, and no game is fun to watch if you don't understand the action. So here's how it works.

First, a voter makes the request. Anyone registered to vote in California may call for a recount on one or on multiple contests within five days of the end of the official vote canvass (28 days after the election). He or she must submit the request in writing and specify exactly which precincts or counties should be included. Count any less than every ballot in a given county, however, and the results there will be invalid. A recount, then, is a game played on a checkerboard of 58 squares -- one for each county in California.

Next, the county assembles a team of counters. Elections officials can use their discretion in determining whether to create one or more counting teams, depending on how big and difficult the task may be. Each team, called a recount board, consists of four members of the voting public. The precise nature of the job will depend on the type of recount.

Then the requester pays a deposit. Every day, elections officials estimate the cost of running a recount. The recount cannot begin or continue without receipt of that money each day (so maybe it's more like a coin-operated video game version of checkers).

The recount begins.The requester has a number of options in calling a recount. He or she may ask for a machine count using the same technology that produced the initial results (it will be tested first for accuracy) or may call for a manual tally using either the voter-marked paper ballots or audit paper trail receipts from touch-screen devices. The recount boards proceed one precinct at a time until all precincts called for by the requester have been counted.

THE DEVIL'S IN THE DETAILS

Most, if not all, counties use some kind of electronic or mechanical vote tabulating system for their initial count. Manual tallies are used primarily to verify that the machines have not made any errors, and even then only a one-percent tally is required by law in California (or 10 percent in very close races). As such, a recount can be carried out using the same machines, or the requester can ask for a full manual tally. Either way, a recount board tackles one precinct at a time.

In a machine tally, the requester can ask that the machine simply be used to run the tabulation again or, in the case of touch-screen voting systems, can ask for a manual count of paper audit trail copies that were generated at the time of the vote. Before and after the recount, the machine is run through a test to ensure its accuracy.

In a manual tally, members of the recount board are assigned specific roles and help to cross-check each other. One person is assigned to reading and calling out each vote, while two others separately mark it down. The reader is checked by a fourth person who is watching to make sure he or she read the ballot properly. Each recorder is a check on the other. If they do not get the same number, the team has to count the precinct again.

To get a sense of the time and cost required for any recount (but especially for a full manual tally), consider that counties have, by law, 28 days to certify an election the first time around, and many use all or nearly all of that time. Counting -- especially on the order of the thousands or millions of ballots produced in an election -- will invariably result in some discrepancies. And those discrepancies have to be checked and decisions made about how to resolve them. Maybe a ballot was marked too lightly for the scanner, or officials rejected a ballot that someone feels should have been counted. The recount board helps to make those decisions. So do observers from the media and the community. Corrections are made. The count continues.

And lest you discount the counters, remember that even just the counting is hard.

"Remember when you're a kid and you counted pennies -- you had them in a penny bank. It would take you three counts before you came up with the same answer. At the end of the day, there's kind of that element in the vote, too," said Shaun Bowler, an expert on ballot initiatives at the University of California, Riverside. Bowler was at a loss to think of another ballot measure that's been subject to a recount in the state. That makes Prop 29 a real test case for the state.

Finally, results of the recount are made public. At the end of a recount (at the end of each day, in fact) the results are posted in public view, very likely online. If, and only if, every ballot in a county has been counted, then that elections official will submit the results to the Secretary of State. Once all counties involved in the recount (which are identified by the original and any subsequent requesters) have turned in their results, the Secretary of State has five days to determine if the new count has changed the statewide outcome.

If the outcome has changed, the county elections officials will re-certify their results, making the recount the official count. What was lost is now won, or what was won is now lost. As an added prize, the requester gets a full refund of all money paid to keep the recount going.

If, however, the outcome of the contest did not change, the original count stands, and the requester gets no money back.

More recounts. As long as the recount is still under way, or up to 24 hours after it is complete, the pieces are still in play. The game is not over. The requester can continue to add precincts and counties to the recount, but so too can an opponent. As long as there are multiple recounts under way, there are pieces in play, and the Secretary of State cannot make the final call on whether the statewide outcome has changed.

With the rules in place, the action can unfold. Of course, in the beginning it may look more like a practice game, with a lone player sitting at a checkerboard, challenging himself. And in a sense, given some of the confusion and uncertainty about the rules, that may be exactly what the Prop 29 recount represents -- a practice game.

Prop 29, which would have slapped a new $1 tax on every pack of cigarettes in order to help fund cancer research, went down by a razor-thin margin. Out of more than 5 million votes cast, it lost by a mere half percent, or just under 30,000 votes, according to data made available by the Secretary of State.

Professor, surgeon, concerned voter Dr. John Maa -- who supported Prop 29 from early on and even appeared in a political ad -- first asked the Secretary of State for an official recount in Los Angeles County. A representative from L.A. County Registrar Dean Logan's office estimated that Maa spent between $140,000 and $180,000 to keep the process going, but Maa called it quits before even a tenth of the votes had been tallied. He told me by phone that a complete recount of the county would have cost him something on the order of $900,000.

Official county reports indicate that Maa netted an additional 218 Yes votes -- not even close to the 30,000 he would need to close the gap and reverse the election. And because he did not count every ballot in L.A. County, none of those extra votes can be certified and added to the total.

Maa made the first move, but no pieces were captured. In one sense, it was a smart move. Like the early plays in any good strategy game, that first recount may have helped Maa gain a better sense of the game he was about to play and just what he was up against. Sacrificing a little money revealed that L.A. County was probably not the place to capture new votes, at least not without adding more counties to the recount and therefore adding to his total bill.

Indeed, Maa told me he has been conducting his own informal audit of the election results from the June primary. Based on data he received from the Secretary of State's office, he has been following his own leads based on the biggest discrepancies he seems to have uncovered.

Maa's next move -- to Placer County -- had similar results. Not too many votes were likely to be gained, and he pulled out early.

But Maa's latest move is a recount in Orange County, where he claimed to have found a discrepancy of 55,000 votes. He has promised this recount will be more thorough than the rest.

"The recount board [in Orange County] I believe is $600 a day. We're prepared to take the necessary steps to answer the question [of why there is that 55,000-vote discrepancy]," Maa said. "We're going to start in chronological order and hand recount the entire county."

By now, watching a lone voter spending huge sums of cash without officially gaining a single vote, one might begin to wonder whether Maa is fooling himself, or whether he doesn't, after all, have some other motive.

In a press release he appears to have written himself, Maa revealed that, in fact, his efforts have led him to an additional cause.

In addition to explaining the 55,000-vote discrepancy, he issued three recommendations to improve the elections procedures in California, based on flaws he said he had uncovered during the recounts. "The goal of the recount is to understand the reason for this difference between the Orange County election night report, the reports made by the Registrar during the canvass, and the final Secretary of State certification of the vote. Ultimately, the recount has already succeeded, by illuminating the path to strengthening future elections in California and across America."

Altruism in the game of Checkers? Is that even legal?

Whether Maa gains the votes he needs, or an opponent emerges to pick up some additional No votes in other counties, or if even Maa's attempts to highlight and bring changes to problems in the electoral system begin to pay off, the game is still afoot.

Top Photo: Curtis Gregory Perry/Flickr/Creative Commons License

About the Author

Web Editor for SoCal Connected, KCET's award-winning television newsmagazine. He has worked in just about every medium, with stories appearing on TV, radio, Web, and print. He is also the editor of the Online Journalism Review at ...
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So "a Bay Area surgeon" just suddenly decided to spend on the order of a quarter million dollars out of his own pocket to see if he could overturn a vote and arrange to funnel $800,000,000.00 a year into the pockets of the antismoking organizations? (That's Eight Hundred MILLION a YEAR for any numerically challenged out there...)

How nice of him. Of course the wealthy and powerful interests who'd eventually be getting those billions upon billions of dollars aren't helping him out in any way, right? I'm sure kcet and the other news organizations in California have investigated this and made sure it's all on the up and up, right?

They very well MAY have: I have no information to the contrary. But when this kind of mega-money is in play, I hope SOMEone is watching things VERY carefully. And if the vote IS reversed, and the 85% of nonsmoking Californians manages to tax the 15% of smoking Californians... just wait till we have a national vote where the 85% of non-Californians slaps an extra 25% sales tax on Californians to help balance the national budget. Just as fair, right? The Californians certainly wouldn't have a leg to stand on in complaining.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

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All the reports I've seen indicate that an increasing the regressive tax on tobacco products would lead to more untaxed cigarettes, untaxable e-cig usage and tobacco user migration out of California. The results would be less revenue over all.


Returning Veterans will be paying an inordinate share of this. But for what? ...more quitlines to sell cessation products that don't work in the present population? I don't think their 800 Quitline numbers work on the battlefield. And for what was spent on the Prop 29 recount, they could have put nice beefed up ventilation systems (and a brand new flagpole) in all the Veterans posts in California.