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Unfortunately, we must report that we have suffered a highly flawed decisiondenying the writ we sought to complete the recount at reasonable costat the trial court level in our Measure A litigation.

After a year and a half, this is a greatly disappointing outcome.  If you would like to participate in a debriefing on this trial court outcome, including the discussion as to whether we should appeal and other options, please join our Measure A Recount Debrief Zoom session on Sept. 1st at 6:00 p.m.:

Topic: LBRC Meas. A Recount Trial Debrief

Time: Sep 1, 2021 6:00 PM Pacific Time (US and Canada)
 

Join Zoom Meeting
https://us02web.zoom.us/j/86591682966

 

Meeting ID: 865 9168 2966
One tap mobile
+16699009128,,86591682966# US

* if this link doesn't work for any reason, check for an updated link at LBReformCoalition.org/Zoom/

The disappointment is compounded by the nature of Judge Beckloff's ruling.  Both his demeanor during our trial hearing and, more importantly, the text of his decisionwhich we received yesterdayconveyed a total lack of regard for the moderately complex but deeply argued components of our case.

In a sense, we argued that if the left hand of County government took an arbitrary action forcing the right hand to produce an extreme outcome, then the entire process was arbitrary and unfair.  In this case, the County Registrar is required under state law to pass along the cost of a recount to us, the requestor.  However, it was also the County Registrar who unnecessarily chose to insert a vast, downright titanic, new cost into the process, for the first time ever:  ballot sorting.

In designing the new voting system (VSAP), Registrar Dean Logan chose to eliminate the automatic ballot sorting component of the old system and instead leave the task undone prior to a recount. 

As a result, we were the first ever recount requestors asked to foot the bill for over 1,500 hours (just an estimate) of County worker time to sift out about 100,000 Long Beach ballots from 2.2 million unsorted LA County ballots before our recount could even begin.

The precedent set by the judge's decision, should it stand, is truly appalling.  It means that the 'paper trail' for electronic voting systems, which rely on purely AI software based tabulation, is no longer accessible and has become essentially meaningless.

Our judge, however, utterly failed to appreciate that danger. 

Indeed, there were elements of the judge's reasoning which made one question whether in fact he had thoroughly read our briefs.

Here are a few examples:
  • The judge indicated a failure to invoke the term 'arbitrary and capricious' when in fact versions of it were used 11 times in our Opening Trial Brief and the concept that the Registrar acted in an arbitrary fashion to inflate recount costs is obviously fundamental to every aspect of our case.
  • The judge appeared completely unaware that the County Registrar's revised cost estimates were based on a misleading accounting trick that made them appear to be an apples to apples comparison with prior year recount cost estimates.  In fact, the Registrar intentionally mislabeled the massive new project of ballot sorting, a cost burden he made ours, under the prior accounting rubric of "recount boards".  In fact no recount boards (tables of four county workers each, recounting ballots) could begin until the 100k Long Beach ballots were sorted from the 2.2 million LA County ballots.  The judge's apparent lack of awareness of that fact, explained in detail in our briefs, was astonishing.
  • The judge accepted the statement in Registrar Logan's declaration that "storage and organization of in person ballots by vote centers is a result of the VCA [Cal. Voter's Choice Act, which discontinued local polling places and created the vote center model...not VSAP [the County's new voting system]."  That statement was flat out false, and Logan knows it is false.  We proved that it is false.  The Voter's Choice Act did not direct County Registrars with regard to the manner in which they store ballots received, either by mail or on election day, after they are returned to the County offices.  Logan made a choice to discontinue ballot sorting by precinct, which had always occurred for vote-by-mail ballots, artificially creating an enormous hurdle to accomplishing a recount.
  • During oral arguments, our attorneys pointed out that should the County's logic prevail there would essentially be no limit on the costs the County could arbitrarily pass along as an obstacle to the public exercising its right to a recount.  It could be a million or two million dollars.  In response the judge said we did not draw him a bright line between costs that are too high versus acceptable.  In fact, it does not require a terribly close reading of our briefs to see that we drew the clearest line possible:  We asked the court to order that the exorbitant, new, arbitrary costs of sorting millions of ballots by hand not suddenly become our burden.  All the costs formerly paid by recount requestors actually to recount ballots were perfectly acceptable to us.
  • The judge also had trouble seeing that the right to a recount was part of the set of constitutionally guaranteed voting rights.  We cited Bush v. Gore, which makes clear that in the case of a close election, a proper recount is a voting right because an inaccurate count could potentially disenfranchise the very voters composing the true margin of victory.  This seems like straightforward logic, but our jurist fixated on the perceived difference between the right to a recount and the right to vote.  Yet what good is one's right to vote without an accurate count of the votes after the election?
  • The judge insisted in his order that the County does not profit monetarily from foisting the cost of the massive project of hand ballot sorting onto the recount requestor, completely ignoring the fact that government officials have interests beyond the potential to turn a profit.  In this case, the interest was in Registrar Logan shielding himself from the embarrassment of a certified election result being reversed.  And more importantly, from his point of view, he wanted to shield the County's $300 million investment in VSAP, which he oversaw, from scrutiny and any public sense that that investment was executed either with complete incompetence or, worse, the intention of preventing the hand counting of ballots.

We meet with our attorneys next week for in depth discussions of Judge Beckloff's decision and the potential for appeal. 

And we look forward to discussing their analysis and considerations for appeal with you at our upcoming Zoom session on Sept. 1st at 6:00 p.m.

For those interested in the details, please see our annotated version of the judge's final ruling here*:
* Please note that these are LBRC Exec. Dir. Ian Patton's personal reactions to the text of the decision, not those of our attorneys, with whom we will soon be in further consultation.

 
Update 8/13/21:

Today we had our trial hearing before Judge Beckloff in LA Superior Court.  Unfortunately the judge issued a tentative ruling just prior to the hearing which was not favorable.  However, we are constrained in commenting upon it until the judge issues his final ruling.

We hope and expect that the elaboration of our case during oral arguments was effective.  We will know soon, when we receive the final written ruling, likely sometime next week if not later today.

If we did not succeed in convincing Judge Beckloff, it would be most unfortunate for reasons, as we have learned over the course of this process, much further reaching than just a Long Beach ballot measure.  It would set a precedent for purely software-based tabulation of election results, which cannot be reviewed even in the case of a machine result where the margin was just one one hundredth of one percent, or 16 votes out of approximately 100,000. 

In the case of Measure A, that vote tabulation has already changed due to a partial, albeit flawed digital images recount performed last year.  The flaws in that illegal method of recounting ballotsperformed in desperation by the County Registrar, due to his inability to offer a reasonable hand count processwere purely related to inefficiencies and cost.  What it did prove was that a scanning machine/software-produced 16-vote margin out of 100,000 cannot be relied upon. 

Only a proper, officially-administered. full hand count can confirm the exact result of an election as close as Measure A. 

We deserve to have full transparency in the administration of vote tabulationespecially in these politically fraught times.  The best way to lower the temperature of political rhetoric when it comes to elections is simply to have an open process of paper ballot counting, as occurs in other jurisdictions in the country.
Update: 

Trial Postponed (Again) to Friday, August 13th; Zoom Debrief Meeting Tonight CANCELLED

Today both sides in our case appeared before Judge Mitchell Beckloff expecting to have our trial hearing.  That did not occur, and it is now rescheduled for 9:30 a.m. on Friday, August 13, 2021.

Normally Judge Beckloff issues a tentative written ruling, based purely on the trial briefs, first thing on the morning of trial.  Essentially, the attorneys already know the judge's thinking and can tailor their oral arguments before him to the tentative ruling.  After arguments are made (which is 'the trial', or in other words, a bench trial, no jury), the judge will either adopt his tentative ruling as final or revise it and eventually issue the final written ruling.

Today Judge Beckloff explained that he had technical/computer difficulties which led to the erasure of the file with his tentative ruling.  He apologized, said this had never happened before, and offered either to issue the tentative ruling orally, in truncated form, or to continue the matter for a week and a half and follow the normal procedure.  Both our attorneys and County Counsel opted for the latter.  The judge also noted that the previous continuance was due to his being sick then, and he again apologized, stating that he also rarely gets sick.

As a result, we continue to await the outcome of our case.  The judge did not tip his hand as to what his tentative ruling would have said, whether it was favorable or unfavorable toward either side.

We expect to reschedule the Post-Trial Zoom Debrief to the evening of Friday, Aug. 13, but we will confirm the details in an email closer to the new trial date.
The Measure A Recount is set to go to trial, after an earlier continuance, tomorrow morning at 9:30 a.m. in Los Angeles Superior Court.

Tomorrow evening, we will discuss the outcome via Zoom session for all supporters.
ZOOM INFO:
Update:

The new date (rescheduled due to the court's last minute unavailability this week) for the trial hearing on our recount lawsuitmutually agreed upon by the judge, County Counsel, and our counselis Wednesday, August 4, 2021.

It will be at 9:30 in the morning in Dept. 86 (Downtown LA Stanley Mosk Courthouse), but we do not yet have confirmation whether the proceeding will be conducted online or in person.  We will keep you updated.

Thanks again for your continued support!
Just a quick update.

We received a last minute notice from the judge in our case today that he (or rather the "the court") would be unavailable for our trial tomorrow and so he has continued it to a near-future date.  We expect the judge and attorneys from both sides to agree on a precise new date soon.

We will keep you posted.  We also informed the Press-Telegram, which published an excellent front page story on our case (see previous update below, with full text) today, in anticipation of the trial.

And we also wanted you to know that last week's fundraiser was a BIG SUCCESS!  We are still processing all the contributions and finishing the accounting, but it looks like we have surpassed our goal of $10,000. 

THANK YOU for once again rising to the challenge and supporting our mission of reforming the political system in Long Beach and putting honesty back into local government! 

Little did we know, when our founding board started LBRC three years ago, that this mission would take us into a fight with a dishonest County Registrar, as well.  You just never know where things will lead!


A lawsuit over the scrapped effort to recount the results of Long Beach’s Measure A election last March — which could determine how LA County handles future recount elections — is set to head to trial.

The ballot measure, which passed by 16 votes out of nearly 100,000 votes cast, indefinitely extended the 10-year, 10.25% city sales tax that voters passed in 2016.

The Long Beach Reform Coalition, a group that opposed the measure and argued throughout the campaign that the city had not been a good steward of the money it received from the tax already, sought a recount of the election given its razor-thin margin. But the process, members of the group have said, was far more expensive and less transparent than the Los Angeles County Registrar-Recorder/County Clerk’s office initially claimed.

A spokesperson for the Registrar-Recorder said the office cannot comment on pending litigation, but attorneys for Los Angeles County Registrar-Recorder/County Clerk Dean Logan wrote in recent court filings that every aspect of the recount process was conducted lawfully.

The recount in question began April 8, 2020, but Ian Patton — a representative of the Long Beach Reform Coalition who officially requested it — had to cancel the effort after less than a week because of the high costs. The organization has claimed the county’s process has effectively barred the public from being able to have full confidence in the election results.

So the Long Beach Reform Coalition sued Logan last May, seeking a full, manual recount of the election at the initial estimated costs and for the county to change its ballot-sorting and -counting process moving forward.

The lawsuit will go to trial on Wednesday, July 7.

The Long Beach Reform Coalition’s argument centers on how the recount process changed thanks to new voting equipment and processes that LA County debuted in the March 2020 elections.

Under California state law, there is no provision requiring an automatic recount, even in races as close as Long Beach’s Measure A election. So a recount for the tight race could only be called by the county clerk’s office, if there were reasonable cause to believe ballots had been miscounted, or if a voter requested it within five days of the certification.

Logan declined to initiate the recount himself, because he said there was not reasonable cause to believe ballots had been miscounted. So Patton requested it — and, the law says, he must bear the cost of the labor and equipment required for the county to complete the process, and pay daily deposits. If the recount ultimately overturned the result of the election, the money would have been refunded.

By the time the recount began last April, the group had raised about $50,000, and Patton was confident the coalition could fund a full recount — but he didn’t know at the time that the cost estimates in the county’s own election handbook were outdated.

Unlike the prior voting procedures, ballots were not organized by precinct for the March elections because of the county’s new voting system, meaning the process of retrieving ballots would be much more time- and labor-intensive. And county officials later told Patton the cost of that extra time and labor would be passed on to the requester of the recount.

All told, Patton would eventually learn, the cost of the process would likely top $200,000.

“The Registrar wants us to pay upwards of $200,000 or more (itself just a guesstimate on his office’s part) to sort out his ballots,” Patton said in a Thursday email. “We feel that is clearly a County responsibility, because the County implemented a new voting system with no mechanism for ballot sorting.

“Recounts must be conducted by precinct, according to state law, and so the question of who pays the titanic bill for the overwhelming physical labor required to sort out that absurd mountain of millions of mixed up ballots,” he added, “is what’s at issue in this case.”

While Logan’s office declined to comment on the case, it’s clear from court documents that have been filed so far that the Registrar-Recorder’s position is that the process for the nixed Measure A recount was entirely lawful.

Though recount costs were lower with the county’s prior voting system, Logan’s attorneys wrote in a court filing earlier this month, those lower costs were “an incidental benefit recount requesters presumably used to enjoy but are not entitled to under law.”

Instead, his lawyers wrote, the Registrar-Recorder’s duty is to prevent the taxpayers from shouldering the financial burden of recounts.

“No fundamental voting or equal protection right has been infringed, and the Registrar’s practices are neither severe nor discriminatory,” the June 7 filing said. “Indeed, the Registrar’s ministerial duty requires him to recoup costs from the recount requester to avoid a gift of public funds.”

While the lawsuit seeks a full Measure A recount at the initial lower estimates, it also hopes to curtail the high costs of recounts going forward by requiring the Registrar-Recorder’s office to organize voted ballots and sort them by precinct as a normal practice for every election, at the county’s expense, along with other mandates.

But Logan’s attorneys argued that his office’s duty to ensure requesters — and not the public — pay for recounts extends to all labor associated with the process, including sorting ballots.

“The Registrar’s actions are not arbitrary or capricious, as recount procedures and the manner by which cost estimates are determined have remained the same, and there are no legal requirements that voting models or systems consider recount costs,” the court filing said. “The Registrar’s ministerial duty thus compels him to estimate and charge Petitioners for all costs, including the retrieval and organization of ballots into precincts, which costs would not have been incurred but for the recount.”

It seems the future of election recounts in LA County — and the costs associated with them — could hinge on the lawsuit and how the judge will weigh the two arguments next month.

 
Dear Long Beach Reformer:
 
It’s been a long, excruciating pandemic for all of us, but economically no one has had it worse than Long Beach’s small business restaurants, bars, stores, and other retailers, both the owners and their employees.
 
Unfortunately, after having barely survived—that is to say, if they have survived—our Long Beach small businesses still face insult on top of injury.  They still face one of the highest sales taxes in America in Long Beach, thanks to that 16 vote margin (out of nearly one hundred thousand votes cast), certified in last year’s primary election, in favor of Measure A.
 
After the machine vote count last year, we asked for a standard manual recount and were ready to pay thousands of dollars typical for such a request (perhaps $20k-$30k, as published in the County recount manual).  Outrageously, LA County Registrar Dean Logan chose instead to change the cost at the last minute, due to the new VSAP voting system’s design failures and his own disinterest in having an election he ran overturned, and instead to present us a price tag of well over $200,000 for a simple hand recount.
 
We attempted to give Logan the opportunity to be reasonable, initiated the recount process, and had recounted about 7,000 votes before it became clear Logan effectively would never allow a transparent, viable recount process for a reasonable cost.  Nonetheless, in just those nearly 7,000 votes recounted, systematic errors were uncovered and four votes changed.  We also challenged numerous excluded ballots, with our challenges never ruled upon.
 
As a result, we had no choice but to go to court.  We hired Fred Woocher, Esq. of Strumwasser & Woocher, the most well known and well-regarded election attorney in California.  Our case finally comes to trial this July 7th.
 
Please join us on Thursday, July 1st at 6 p.m. at the renovated Phil Trani’s for a fundraiser in support of our litigation and future efforts. 

And remember to keep your fingers crossed for our upcoming trial and the hoped-for completion of the recount!
 
Or donate now:
  • by sending a check (please include email address for our communications and street address & occupation/employer on memo line for P.A.C. reporting) to Long Beach Reform Coalition, 407 E. 3rd Street, Long Beach, CA 90802
  • or online at LBReformCoalition.org/donate.
UPDATE 4/6/21:

Is there anything good about the fact that going to court is always a seemingly interminable process?

Turns out, there is:  Our litigation on Long Beach's Measure A (sales tax) electioninitiated back when we were all a year younger and had only been dealing with COVID for a mere handful of weeksjust might outlive the pandemic!

That would be a very good thing if we win, because our objective is a court ordered restart to the recount.  When we first initiated the recount in April 2020, following the March 3, 2020 primary election, COVID made it an almost impossible task. 

Beyond the foundational issue, that the County had spent $300 million and ten years developing a new "high tech" voting system without including a process to hand recount physical paper ballots, at that time the Office of the County Registrar/Recorder was also severely undermanned at its headquarters and had never dealt with pandemic-related physical limitations before.

The result was a comedy of errors, wherein Registrar Dean Logan failed to carryout his responsibilities regarding proper execution of a recount, under state law and the state's Code of Regulations.  We were left no choice but litigation, and now that litigation has an updated end point:

On July 7, 2021 we finally go to trial on our petition for writ of mandate to restart and complete our recount, properly, and at a reasonable cost.

All the ballots from the March 2020 election are under lock and key, just waiting for that to happen.  As a reminder, the certified results showed a margin of 16 votes out of approximately one hundred thousand, just a hundredth of a percentage point over 50%, for the Yes vote.

If we succeed in overturning that margin with a renewed recount, we will save desperate, dying Long Beach retailers, restaurants, and bars, those who've somehow managed to hold on, from the final blow which may wipe them out completely:  the continuation of Long Beach's nearly highest-in-the-nation sales tax forever, rather than it beginning to sunset.

In the meantime, as we await our trial date, the process of discovery in this case continues, with our attorneys taking a deposition of Tim McNamara, Assistant Registrar-Recorder/County Clerk for Election Operations, this Thursday.

Up to this point, the discovery phase of the case has already revealed some key findings:
  • In the past, recount charges were just a fraction of the figure we were told to pay (they expected us to pay, up front, well over $200,000) to hand recount ballots.  This is because, under the old system, the County maintained special machines to sort vote-by-mail ballots as they were received at the Registrar's office (polling place ballots were sorted this way by default).  That meant ballots were essentially ready to go for a hand recount at any time after the regular machine count. (These days, the 'machine count' is actually just a software algorithm processing scanned digital images of physical ballots.)
  • Under the new $300 million system (called VSAP, or Voting Solutions for All People), the County failed to design a sorting functionality into the process.  As a result, the new "high tech" voting system requires County staff to physically sift through millions of ballots to find just those needed for a recount in a particular jurisdiction, such as Long Beach.  (Because County Registrar Dean Logan would prefer the public and the Board of Supervisors not realize he made such a colossal mistake, despite having had ten years to guide the development of the new system, he placed the burden of paying for all that staff time on us, hoping we would just walk away.  Of course, he must not have known anything about LBRC, as we would never just walk away from such a corruption of the democratic process.)
  • Indeed, not only did the County fail to plan for recounts in any way while developing the new system, it completely failed to provide the public or its staff any updated guidelines, protocols, or procedures for carrying out a recount under VSAP, such as it was.
  • The County has admitted that, had it included a sorting functionality in VSAP, recount costs would be "lower".  (Given the documentation of past recounts they were forced to yield to us, that fact had become obvious and unavoidable.)  In fact, the costs would have been orders of magnitude lower.
  • When asked to admit whether or not our recount was the most expensive in County history for a jurisdiction of our size, County Counsel, tellingly, refused to answer.

We will keep you updated as to the course of this litigation.  As always, your continued financial support for our all-volunteer efforts is vital and always appreciated.

Do you remember this headline from last year?


Let's hope our next headline is "Long Beach Reform Coalition Wins Lawsuit; Recount Restarted"!

For more background, see our earlier posts on this litigation:

08/19/2020 - Measure A Recount Update; The Fight Against Abuse of Tax Dollars to Campaign for Ballot Measures

06/26/2020 - Anti-Measure A Recount Update #11: LA Co. Files its 'Answer' to Our Suit, Forgoing a Demurrer
In Other News

For information on our complaint regarding the Long Beach Police Department's "Superspreader Event" last November, which became international news and is set to be considered by the Long Beach Citizens Police Complaint Commission (CPCC) during closed session this Thursday at 5:30 p.m., please see:

12/19/2020 - The LBPD Superspreader Event

To submit comments prior to that closed CPCC hearing, please e-comment at the City's web site or send by email to Patrick.Weithers@longbeach.gov.
DONATE TO RECOUNT FUND
Please send donations by check to:

Long Beach Reform Coalition PAC
407 E. 3rd Street
Long Beach, CA 90802

* As with all political action fund contributions, please include full name, street address, phone number, and occupation / employer (or 'retired', 'homemaker', 'not employed', 'self-employed', etc.) with checks.

or donate online at:
LBReformCoalition.org/donate
LBReformCoaliton.org
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