A state judge has found that elections officials in Alameda County violated the California Constitution and election law by refusing to provide data about Diebold touchscreen voting machinery to proponents of a failed ballot initiative seeking a recount.

If appealed and upheld, the ruling could require elections officials statewide to provide detailed records about the operation of electronic-voting machines and software as part of a recount.

Matt Zimmerman, an electronic-voting expert at the Electronic Frontier Foundation, applauded the ruling is "an absolute, best-case scenario."

"There's certainly no motivation here for elections officials to want to voluntarily turn this over because any indication that anything went wrong implicates their administration and their selection of the machines in the first place," Zimmerman said. "We haven't had a good ruling like this to tell elections officials to follow the law."

In an order filed last week, Superior Court Judge Winifred Smith concluded that accuracy test results on touchscreen voting machines, internal command logs, copies of electronic ballots and records of who had access to those ballots were "relevant" to conducting a recount of an election with fully computerized voting.

County officials said they made what they thought was the best judgment at the time.

"There is a rear-view mirror of what is relevant, but now we are dealing in an electronic age," said Alameda County Attorney Richard Winnie. "At that time it wasn't clear.


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Smith's ruling probably comes too late for proponents of Measure R, which sought zoning and other regulations favoring cannabis dispensaries. Berkeley voters defeated the November 2004 initiative by solid margins. Alameda County elections officials led by then Registrar of Voters Brad Clark charged a national medical-marijuana group, Americans for Safe Access, $22,000 for a recount consisting of printing out the same electronic records in the original tally. The group sued after Clark denied its request for the additional records, which would have shown any discrepancies in tests of the voting machines before the election, any breakdowns on Election Day, any software changes made during or after the voting and any discrepancies in the handling of the PC cards used as electronic ballot boxes. California election code says that challengers to an election are entitled to examine any ballots "voted and unvoted" plus any other "relevant materials." Clark determined that the requested records were not relevant for a recount of electronic ballots.

An early judge agreed and dismissed the case. But the state Court of Appeal reversed him last April and sent the matter back to Alameda County Superior Court for a determination of what "relevant" means for electronic voting.

Partly because computers and software perform all recording and tallying of electronic votes, Smith found that records on the operation of the voting machines and access to them met the broad definition of "relevant" for a recount.

"In a way what's interesting and wonderful about this lawsuit is, this is a right reserved by the people to supervise their elections," said Gregory Luke, a Santa Monica-based elections attorney who represented Americans for Safe Access. "All we wanted to do is to compare their data to the data that's in the machines, which is why Diebold put it in there."

But the chain-of-custody records kept by Alameda County turned out to be haphazard and incomplete, and the county sold its touchscreen voting machines back to Diebold last summer, without retaining any copies of the internal audit logs and the 2004 electronic ballot copies.

The county gave the machines containing the requested records to Diebold three months after the appeals court ruled in favor of Americans for Safe Access and against the county's denial.

Alameda County's Winnie said county officials "acted in good faith."