Democratic Rep. Jerry McNerney inched his way toward re-election as updated counts Friday showed him with a slim 548-vote lead over opponent and GOP nominee David Harmer.
But the outcome is still a long way from settled.
The gap represents a tiny 0.3 percentage points of the 176,108 votes counted in the 11th Congressional District, which remains one of nine House races nationwide still too close to call. The four county elections offices within the 11th District are plowing through the uncounted mail-in and provisional ballots but thousands of votes remain to be processed.
The fiercely contested race also had its first day in court Friday, as Republicans sought to force Contra Costa County Registrar of Voters Steve Weir to allow their election clout observers to challenge the veracity of signatures on vote-by-mail envelopes.
A Contra Costa County judicial commissioner declined to sign a temporary restraining order that would have stopped the signature verification process but kicked the dispute into Superior Court, where it is set for a full hearing Monday morning.
Weir said state law specifically allows pollworkers to challenge a voter's right to cast a ballot and those who present proof before the election that an individual who was issued a vote-by-mail ballot is ineligible to vote. Election count observers, he said, are permitted only to question whether workers are following established procedures.
Every voter whose eligibility comes into question has the right to answer the allegation, Weir said, and allowing casual observers to challenge a voter after the fact is "not going to happen," Weir said. "If a judge orders it, then we'll have to see what we do next."
GOP attorney Charles Bell argued that observation alone cannot ensure election accuracy. He told the court that Weir has failed to provide adequate access to the signature-verification process and observers should have the right to challenge a signature that doesn't appear to match the original signature in the county's voter registration database.
The delay renders the issue nearly moot in Contra Costa County, where Weir says his staff has completed the signature-gathering analysis on all but 1,200 to 1,700 of the 190,000 vote-by-mail ballots his office has received.
But Republicans will pursue a court case on the grounds that Weir's interpretation could set a bad precedent, said Bob Haueter of the National Republican Congressional Committee, who has been sent to the Bay Area to monitor the outcome of this race. Haueter says other elections officials allow far greater access and permit challenges.
"The integrity of the election process is very important and we cannot have a single election clerk making new law," Haueter said.
The courtroom drama could be a harbinger of a protracted battle over the 11th District.
It's a common adage but in an uber-tight race, every vote does really count.
McNerney's narrow lead emerged just after 3 a.m. Wednesday after a long evening of watching Harmer on the top of the count. But the votes were clearly breaking the Democrat's way on Election Day, which means McNerney has little incentive to throw up roadblocks to the count of late-arriving ballots. His attorney, in fact, told the court that the Democrats have no concerns about Weir's operation.
Harmer, on the other hand, could benefit if signatures on ballots are deemed invalid and thrown out, ensuring that potential votes for his opponent never show up on the tally.
McNerney was winning by a 15 to 9 percentage point advantage, respectively, in Alameda and Santa Clara counties, while Harmer is up 5 points in San Joaquin County. They are more closely matched in Contra Costa, although Harmer has a small lead there.
Both sides are girding up for a fight.
Two representatives of the staffs of the House Administration Committee, one from each party, arrived in town this week. The National Republican Congressional Committee has sent Haueter, who was in court on Friday.
Contrary to popular misconception, California has no automatic recount trigger mechanism.
Once elections officials certify the final results, any registered voter may request a recount within five calendar days although he or she must agree to pay for it.
Typically, a voter requests a recount on behalf of a candidate, whose campaign foots the bill. Alameda County, for example, requires a $5,000 deposit and can charge up to $1,500 a day depending on the type of recount requested. A hand recount costs more than a simple re-scan of ballots.
A county election officer may also conduct a recount at taxpayer expense if the official has reason to believe that a mechanical error or some other processing mistake has led to incorrect results.
Some folks confuse a voter-requested recount with the mandatory, 1 percent audit of election returns required of every county election office by the state.
But these audits consist of a reconciliation of machine counts with paper ballots on 1 percent of the county's entire rate of return. It is not race-specific.
If the audit reveals discrepancies, the county elections office may boost the audit to 5 or 10 percent of returns in order to find the source of the problem, but that rarely happens, say East Bay election officials.