CD11 is a nail-biter





Early this morning, Rep. Jerry McNerney had squeaked out a 121-vote lead over GOP nominee David Harmer in the 11th Congressional District, but no one is celebrating or packing up their campaign offices yet.

Thousands of votes remain uncounted in the four counties within District 11, and Contra Costa and San Joaquin election officials, the largest voter contingent within the district, say they don’t expect to post their next round of updated vote counts until late this week and next week. (UPDATE: Contra Costa says it will have one round of updates on Friday, and another next week. Other counties have similar plans.) Nov. 12.

Why are there uncounted votes?

Election officials typically stop counting vote-by-mail ballots a day or two before Election Day in order to prepare for precinct operations. When the Election Day tallies are done, they process the vote-by-mail ballots that arrived in the mail over the weekend, Monday and Tuesday plus the VBMs dropped off at the polls on Election Day.

With the growing numbers of VBM voters and their tendency to drop them off at the polls, it drives up processing time. VBM ballots must be checked for valid signatures, stripped from their envelopes, manually rolled to remove the tri-fold creases and hand-fed into scanners. It takes a lot longer to count VBM ballots than the ballots filled out at precincts, which are fed directly into optical scanners.

I talked with Harmer and McNerney today and both sides have reasons for optimism.

For McNerney, it was clear that Election Day voters broke in the Democrat’s direction. Harmer was leading by 3 or more percentage points after the first wave of early vote-by-mail ballot counts were posted.

That gap slowly closed as Election Day counts emerged.  If the trend continues as election official count the remaining ballots, McNerney’s lead could expand and he could keep his seat. Democrats poured wads of cash into anti-Harmer ads in the 11th District in the final week, which probably spurred their voters to show up at the polls.

On the other hand, Harmer did well among early VBM voters, and it is possible that he could recover his equilibrium among the later VBM voters, particularly in San Joaquin County. Harmer held a 5 percentage point lead in San Joaquin, where 53.9 percent of District 11 voters live.

Here’s a county-by-county breakdown of the votes as of this morning, keeping in mind that all four counties still have significant numbers of uncounted ballots:

ALAMEDA COUNTY (15.5 percent of District 11 voters)

  • Harmer: 42.7 percent, 11,679 votes
  • McNerney: 57.3 percent, 15,688 votes
  • GAP: 14.6 percent, or 4,009 votes, in McNerney’s favor

CONTRA COSTA (24.6 percent of District 11 voters)

  • Harmer: 50.4 percent, 19.871 votes
  • McNerney: 49.6 percent, 19,539 percent
  • GAP: 0.8 points, or 332 votes, in Harmer’s favor

SAN JOAQUIN COUNTY (53.9 percent of District 11 voters)

  • Harmer: 52.5 percent, 45,958 votes
  • McNerney: 47.5 percent, 41,612 votes
  • GAP: 5 points, or 4,436 votes, in Harmer’s favor

SANTA CLARA COUNTY (5.9 percent of District 11 voters)

  • Harmer: 46 percent, 4,495 votes
  • McNerney: 54 percent, 5,285 votes
  • GAP: 8.1 points, or 790 votes, in McNerney’s favor

The other big question folks are asking about District 11 is whether or not there will be a recount.

It depends.

Contrary to what people seem to think, California has no automatic recount trigger mechanism.

Any voter may request a recount within five calendar days after the certification of the final election results but he or she must pay for it.  A county election officer may also conduct a recount  at taxpayer’s expense if the official has reason to believe that a mechanical error or some other processing mistake has led to incorrect results.

Typically, a voter requests a recount on behalf of a candidate, who 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.

If the count is close, it’s possible that the candidate on the losing side of the final number will seek a recount.

Some folks confuse a this type of 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, says East Bay election officials.

If you are curious about California Election Code provisions for recounts, click here and read Chapter 9 starting with Section 15600.

Lisa Vorderbrueggen

  • Steve Bloom

    Is there any substantial basis for thinking late VBM results would resemble early VBMs rather than votes cast on election day? My impression is that there’s quite a bit of experience showing the opposite.

    The same issue arises in the AG race.

  • hilltopper

    Great report Lisa.

  • steve weir

    First, Contra Costa will produce an update on Friday, Nov. 5th. We hope to update that total again on Wednesday, Nov. 10th.

    Second, late vote by mail ballots act more like election day totals than the early vote-by-mail ballots. Why is this important? Well, in Contra Costa, Harmer won in the vote-by-mail results, but McNerney won in the election day results.

    The Harmer folks will argue that the vote-by-mail ballots will favor their candidate because they won in that category. The McNerney folks will argue that the trend was moving their way towards election day and that they will see victory when the “later” vote by mail ballots are tallies.

    As a Registrar, there’s only one poll that counts and that is the actual tally.

    This is a close race, we have others in the County. My job is to do my job, and not be pressured by outside forces to make a mistake. Yes, we all want to know the results, but California law gives us 28 days to certify the election, and we traditionally take all of that time, so that when we sign the certification of election, it is our very best effort. There is a well tested and prescribed order in which we count ballots. We will stay with that protocol.

    So, with four counties and tens of thousands of ballots yet to count, stay tuned!

    Steve Weir, Contra Costa Registrar of Voters

  • PollWorker

    Steve and Lisa,
    Were both/either of you surprised with the number of VBM ballots delivered at the polls on Election Day?
    In some precincts it seemed that there was a very high % of drop off VBM ballots. In fact, I know that some precincts had full blue ballot bins with at least 100 VBM submitted.
    I wonder if this is becoming a trend or if the high % of Ballot Day VMB was just a coincidence of increased postage, .61 cents, or if voters were just undecided in voting until the few days?
    Steve, I also wonder if this ‘trend’ will continue in future elections and if the DTS % increased compared to last week’s report.

  • When I read that Harmer wanted to more or less get rid of public schools he went into my “Moving to Canada if this person gets elected” list. I will definitely be watching this play out. Thanks for the info!

  • John W

    Given the growing volume of election day VBM, it’s understandable that it takes time. Still, doesn’t Oregon have all VBM, with complete counts available election night or the next day? It seems like there must be a better way. Otherwise, this problem could keep getting worse.

  • Lisa Vorderbrueggen

    PollWorker: I wasn’t surprised, exactly. In retrospect, it makes sense, due to the high-pitched campaigning that took place in the final week in some of the contested races. Voters who might not otherwise have bothered were motivated by something they heard, whether it was a radio ad or a call from campaign office.

    The other piece of this that I failed to mention is the required checks within the elections offices to ensure that people didn’t vote twice. Say a person mailed a ballot but wasn’t sure it made it in time, so he goes to the polls and fills out a provisional ballot to cover his bases. That also takes time.

  • Lisa Vorderbrueggen

    John W.
    Good question. I’m not sure how Oregon counts its ballots. I moved out of Oregon before it switched to all-mail ballots.

  • Helen Wells

    Camille, the info about Harmer wanting to get rid of public schools is a blatant lie that many bought into. His children go to public schools, his wife is a substitute teacher, and David has helped raise $$$ for the school district where their children go to school. He has coached their soccer team, etc. So please do your own investigating instead of believing right off the bat those attack ads from McNerney that were falsehoods, distortions, and outright lies.

  • Camille, check the facts by going to the website HarmerForCongress.com before moving to Canada!

  • steve weir

    The actual percent of vote-by-mail (VBM) ballots turned in at the polls and delivered via US Postal service on Election Day, Nov. 2010 looks like it will be less than 20% of the total VBM ballots cast.

    For the June,2010 Election, E Day VBM’s were 20.6% of the total, for Nov. 2008, E Day VBM’s were 19% of the total.

    Oregon, and 38 of the 39 Counties in Washington State that have selected the all mail option, are conducting one election. Those of us who have about 50% of our vote cast by mail and 50% at the polls are conducting two separate and distinct elections at the same time.

    If I were all mail, or all precinct voting, I would be able to assign my staff to concentrate on just one process, and we would be done much faster.

  • John W

    Steve Weir, thanks for that explanation. Going all one way or the other probably would upset lots of folks. We do love our choices. Lisa, that might be an interesting topic for the question of the week on the Sunday opinion page.

  • John W

    Re: #9

    Sorry, Helen Wells, but Mr. Harmer is a long-standing proponent of school privatization, through vouchers or other means, as evidenced by what he wrote in the Chronicle and by his work with CATO and Heritage. For him to say otherwise now is right up there with Mitt Romney’s amazing flip-flops in 2008. Do I think he will make that a big cause if he wins the CD 11 seat? No, he’s too politically smart for that. The fact that he is able to get his kids a very high quality K-12 education in the high achieving SRVUSD undermines his previous generalizations about public schools but doesn’t erase the record of his underlying political philosophy about public education and other issues. The fact that he helps out in school fund-raising drives is commendable, but many, many parents in the district who aren’t running for public office do the same. Kudos to him for soccer coaching, but Mustang Soccer has nothing to do with the public schools. Parents with kids in the soccer leagues are strongly encouraged to help out in various ways, and many do. So, his wife earns income as a substitue teacher in the district! What’s that prove?

  • Tom Benigno

    We hope to have a winner soon.

  • Lisa Vorderbrueggen

    Mr. Benigno:

    You and I have a very unpleasant history, so this is your one and only warning. If you want to continue to post on my blog, keep your comments limited to the political subjects at hand and keep your language squeaky clean. If you post any comments directed at me personally, I will strip them off this blog and permanently ban your future posts.

    This is not the opening to a debate or a discussion on this subject, nor is this blog a democracy. I control this blog, and I will not tolerate the type of personal invective you have directed toward me in the past.

  • PollWorker

    Thanks Steve for the update. The 2008 E Day VBM’s must have been pretty massive. Hopefully we can have similar numbers in 2012…do you think when all votes have been tallied we will hit 55% turnout…that is still a low turnout 🙁

  • Ralph Hoffmann

    In Precinct 465, where I worked as a Clerk, we seemed to have a high number of younger voters, including many VBM’s who either had moved from another County, or forgot to bring their ballot, and so had to vote Provisionally. This will further slow the counting process.

  • steve weir

    O.K., kids, fun time. I believe that a citizen cannot challenge a voter (or more importantly, a vote-by-mail voter) without the extraordinary burden of proof to challenge such a voter. Election Codes state as much.

    I am being taken to court tomorrow because I do not allow the “casual” citizen to challenge you. Believe me, Cal. Elect. Code requires the challenger a major burden of proof to challenge a voter at the polls, and likewise, a voter who votes by mail (and is not present to defend themselves). Games on. I refuse to allow a casual citizen to challenge your signature without evidence. Why, because you are not present (like at the polls) to defend yourself.

    Stay tuned, your rights, under current law, are being challenged for political gain…

  • steve weir

    poll worker (THANKS). VBM looks like it can be 58 to 60 % of the total vote cast.

    I do an analysis of returns and perhaps, the MAYOR will post my stats. (if you have followed my career, I’m into providing stats on elections.

  • John W

    It’s only speculation of course, but I’ll bet I know which team’s “ordinary citizen” might be trying to disenfranchise legitimate voters. I hope whichever side stands to lose from such skullduggery is doing what is necessary to “assist” Steve in preventing it.

    PS: My ballot is legit, ugly signature notwithstanding!

  • Jason B.

    Re: No. 18 by Steve Weir, what is the case name and case number at Contra Costa County Superior Court?

  • Ralph Hoffmann

    1. It’s a felony to vote more than once in an election, although I’ve never heard of anyone in CA going to prison for doing so.
    2. The purpose of voting provisionally, as I remember being taught, is to permit any person to cast a vote, with their qualifications to be checked by the Election Office later. It takes much more time to vote provisionally, and of course checking provisional voter qualifications after the election takes time, further slowing results in a close election.

  • Tom Benigno

    The three candidates at the 11th district forum in Tracy had a very mixed range of topics. It seemed that Mr. Christensen did bring up some issues that seemed to stump Mr.Harmer & Mr. Mc Nerney, which may have caused the race to be tighter than expected.

    After all, the thought of a third party candidate was not expected, but some of Mr. Harmers Tea Party members applauded Mr. Christensen’s answers. Let’s make sure that the event had another side to it.

  • hilltopper

    Re # 18.

    Thanks for fighting for the rights of all voters to have their votes counted. I vote by mail and have often wondered if someone has or might challenge my signature, without any fair basis. At a minimum, a voter needs the opportunity to respond.

  • steve weir

    Ellis Vs. Weir in Dept 60.

    This is a TRO hearing.

  • John W

    I do believe the self-described “constitutional attorney,” running on the notion of “taking back our country” and “restoring the constitution,” is working hard to destroy my constitutional rights by taking back my vote. Florida2.0

  • Tom Benigno

    The two party system is finished.

  • steve weir

    Poll Worker, thanks for being the bastion between democracy and (gosh only knows).

    Turn out is tricky, the SOS won’t speculate.

    we might be at 64.6% which would be the highest voter turn out for a Gubernatorial General over the past 28 years.

  • Tom Benigno

    Steve Weir and his crew at the Alameda registrar’s office did a great job, this year.

  • Olya K.

    Hope they finish with the counting soon and also make sure that there is nothing fishy with the mailed in votes… I am from Russia, and this is exactly how every election is rigged there (and this is such a well-known fact that people are very discouraged to vote – everyone knows ahead of time who will win, so what’s the point to even bother!)… Nothing new to me because I have seen first hand how corrupt officials act, but for some reason people here get offended if you question the process and the integrity of some ballots… People aren’t perfect anywhere, even in California…

  • Nitegama

    Interesting factor that this last spring i received a vbm ballot and i do not recall every requesting one, (i for one enjoy going to the voting booth) When I inquired, was advised that in order to change my status would have to reregister..(san Joaquin County) Of course i forgot, so had to drop off ballot at my polling place. But just wondering if others received vbm ballots as a “surprise”

  • Nitegama

    Also interesting that these so called financial conservatives are always so ready to cost taxpayers more in court costs with their little temper tantrums..as far as I am concerned Harmer who does not live in the district should not have been on the ballot in the first place..he is the only puppet Chamber, Koch Bros, and Rove could find to challenge a very honest man (even though i would like to see McNerney a little more progressive) lol

  • Tom Benigno

    Someone should concede and save the tax payers a lot of money. The results would be the same.

  • Patty O’Day

    Tom Benigno Says:
    November 6th, 2010 at 10:25 am

    “Steve Weir and his crew at the Alameda registrar’s office did a great job, this year.

    Wow! Steve Weir is running Alameda County as well??

  • John W

    Re: #33

    There have been cases where municipal races ended in perfect ties, even after recount, and they decided by coin flip. This one could end up like the 2008 Franken/Coleman U.S. Senate race in Minnesota, with nobody seated for months.

  • Tom Benigno

    A new comment: Being the 11th district has four counties, it seems that Alameda does the best job. The San Joaquin County is the worst county, for details.