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CD11: Court dispute continues Monday, McNerney holds small lead

By Lisa Vorderbrueggen
Friday, November 5th, 2010 at 9:10 pm in 2010 election, congressional district 11.

Democratic Rep. Jerry McNerney inched his way toward re-election as updated counts today 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 today, as Republicans sought to force Contra Costa County Registrar of Voters Steve Weir to allow their election-count 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.

Click here to read the rest of the story.

I also thought readers might be interested in the county-by-county breakdowns as of this afternoon:

ALAMEDA COUNTY (15.5 percent of District 11 voters)

  • Harmer: 42.6 percent, 11,950 votes
  • McNerney: 57.4 percent, 16,086 votes
  • GAP: 14.8 percent, or 4,136 votes, in McNerney’s favor

CONTRA COSTA (24.6 percent of District 11 voters)

  • Harmer: 50.4 percent, 24,070 votes
  • McNerney: 49.6 percent, 23,718 percent
  • GAP: 0.7 points, or 352 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 4,346 votes, in Harmer’s favor

SANTA CLARA COUNTY (5.9 percent of District 11 voters)

  • Harmer: 45.6 percent, 5,802 votes
  • McNerney: 54 percent, 6,912 votes
  • GAP: 8.7 points, or 1,110 votes, in McNerney’s favor

TOTAL

  • Harmer: 49.8 percent, of 87,780 votes
  • McNerney: 50.2 percent, or 88,328 votes
  • GAP: 0.3 percent, or 548 votes, in McNerney’s favor

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  • Jeff in CA

    The quoted statement of Bob Haueter of the NRCC is particularly galling:

    “The integrity of the election process is very important and we cannot have a single election clerk making new law,” Haueter said.

    I would dare say that Steve Weir is one of the most respected and principled election officials in the country and a leader in movement toward uniform standards in election administration.

    In the comments section of the previous blog post, Steve Weir said that he welcomes the Monday hearing and that he would not allow himself to be bullied. You go, Steve!

  • echofool

    My favorite quote today was from the LA Times article quoting Mr. Harmer: “Our objective remains to ensure that every legitimate vote is accurately counted.” These are the same words verbatim James Baker used in Florida several years ago. [Translated: "We want the ability to get our opponent's votes thrown out after our political hacks from Washington deem them to be illegitimate"]

  • Common Tater

    I’m uncomfortable with Steve Weir using this forum as his vehicle for communicating with the public. Far better would be appropriate press releases to the media or updates on the CC Elections website. I just checked that website and it’s curious that there is nothing there about this issue.

    This isn’t the “media” – it’s a moderated blog. Since this issue is going to be heard in court, that’s where it should be heard and not in the court of public opinion.

  • John W

    One question and one comment:

    Am I correct in assuming that, if the observers are permitted to examine individual signatures before deciding whether to challenge, they are also in a position to see what the registered party affiliation is for that voter, so that they could selectively challenge based on party ID?

    I disagree with Common Tater about the appropriateness of Steve using this forum to communicate what is going on. If he was expressing a preference in terms of outcome, that would be one thing. But, he is not civil service. He is an elected official, with both the right and, in my opinion, the responsibility to use any means at his disposal to explain what is going on and to defend the established procedures of his office. Frankly, if it weren’t for this blog, I wouldn’t have a clue as to the extensive effort being mounted by one side to tilt the result in this election. It is one thing to insist on accurate counting and perhaps a recount in a close election, or to raise legitimate questions of voter fraud. It is quite another to go on a fishing expedition in hopes of finding a reason to exclude ballots that are likely to be in your opponent’s favor. There may be ballots cast for any of the three candidates that could be questioned because of somebody’s evolving signature, because they wrote 2009 instead of 2010 for the date, or because they goofed and put their college address rather than home address on the return envelope. That’s not fraud. And it is wrong, wrong, wrong to look for those things on a select group of ballots (i.e., election day VBM ballots), because you think those are trending against you.

  • Common Tater

    This is exactly my point. Steve is unbiased and professional. However, as far as I know this is the ONLY source that he is providing information to. I agree that he has “responsibility to use any means at his disposal to explain what is going on.”

    Is this forum really the only means at his disposal? I suggested that it would appropriate to use the elections website and/or submit press releases on these issues.

    You stated yourself that “if it weren’t for this blog, I wouldn’t have a clue as to the extensive effort being mounted…”

    What about the folks who don’t read this blog? There must 4 or 5 dozen of them in the county.

  • steve weir

    We took party off of the envelopes for general elections several years ago.

    I have given press interviews throughout the day on Thursday and Friday when this issue surfaced. However, there is little coverage.

  • MA reader

    Re: #5 — in terms of the blog’s readership, just thought I’d chime in to say that I’m reading it in Massachusetts. Many outside of the greater Bay Area have an interest in the outcome of this house race. This blog, which anyone can find via Google, has the most extensive coverage. I’ll be reading for a while.

    ** corrected comment — please post this one instead

  • John W

    Common Tater, I agree that this blog has, to put it mildly, limited readership. But it is the only forum that allows those of us who are wonkishly and passionately interested in this important matter to go back and forth to get clarification on all the various elements involved. Steve’s participation is invaluable. Example: my question about party ID and Steve’s much appreciated quick answer. Some of us are using the updates we get here to inform family members and friends who are interested in the matter but not to the extent of continually logging onto this site. I would hope that the newspaper is crawling all over this situation and will duly report on it, because this is shaping up to be more than your garden variety “too close to call” election. As to using the CoCo election website to provide status reports, I have no opinion.

  • Ralph Hoffmann

    Common Tater, I’m confident Lisa’s writing, at this moment, an up-to-the-minute story to submit this evening for publication in the print version of The Sunday Times. Blogs are replacing press releases.

  • http://www.jerrymcnerney.org DanvilleDemocrat

    I concur that is thoroughly appropriate for Steve Weir to provide direct updates to the people by whatever means he feels appropriate. I’d bet that the number of people who regularly visit the press release section of the CoCo Elections Web site are far fewer than the readers of this blog. Therefore, this blog represents one more way for an elected official to reach the public (especially when comments to traditional news media can be edited for space/time, on a completely reasonable basis, I might add).

    As for the substantive issue of the signature check, neither side has received the training nor has the experience of the folks working in Steve Weir’s office to do these signature checks. From the press reports, it seems the opportunity to view the process has been afforded to everyone. Even if party affiliation does not appear on the ballot envelope, I would be concerned about Harmer’s operatives (since they are the only ones clamoring for the right to overrule election workers on signature verification) using lists of voters (and their corresponding party IDs) as a proxy for baseless signature challenges.

  • John W

    I have to wonder how useful challenging signatures can be to Harmer’s Army (of lawyers). I mean, barring some actual fraud, how many could they successfully challenge? And chances are fairly even that the one that gets tossed would have been a vote for Harmer. No independent authority would throw out a ballot unless the signature is an obvious mis-match just because some high-powered GOP attorney says so. Or would they? Well, maybe in Florida, circa 2000. Seems like a big waste of time.

  • Joe V.

    “Republicans[Harmer] sought to force Contra Costa County Registrar of Voters Steve Weir to allow their election-count observers to challenge the veracity of signatures on vote-by-mail envelopes.”
    From Dictionary.com
    ve·rac·i·ty Noun
    Synonyms: truthfulness, truth, verity
    1.Conformity to facts; accuracy
    o officials expressed doubts concerning the veracity of the story
    2.Habitual truthfulness
    o voters should be concerned about his veracity and character

    - How about that second sample sentence. What a coincidence. Who does have a history of poor veracity in this case?

  • steve weir

    Let me make a point here, there are sincere citizens who have been concerned with voter fraud (and/or the potential for voter fraud) who recognize the vulnerability of the vote by mail system to potential illegal activities.

    They contend that citizens should be able to challenge vote by mail ballots based upon the comparison of the signature on the envelope against that voters signature on the voter registration form.

    I do not believe that these folks, with whom I have had extensive discussions, are trying to do anything more than put a watchful eye on the process.

    I don’t think the Election Code gives them that option, and that is an issue that I hope will be settled, one way or the other with the pending court challenge. My own industry (statewide election officials) are not uniform in this application. I’d like to see some guidance on this issue.

  • ContraCostaVoter

    The problem I have with this court challenge is that, unless significant facts are not being reported in the news stories I have seen, the people (RCC) who are bringing the challenge are basing it on hypothetical possibilities rather than on actual evidence that voter validation is being mishandled. If the criterion used is whether the signature on the envelope matches that in the registration records, that is potentially a very subjective analysis. Hopefully, the courts will apply some common sense rules specifying who is allowed to make these determinations, the evidence they are mandated to consider and the procedures by which any challenges to those determinations must be brought. Having partisan ‘observers’ looking over the shoulders of the election workers and second guessing their determinations is in no way conducive to an orderly ballot counting process.

  • John W

    Re: #14

    Well said, ContraCostaVoter!

    I’ll bet some of those Rossmoor signatures aren’t exactly perfect matches to their “when registered” signatures. And those votes probably tilt in Harmer’s favor. Come to think of it, my current signature is not exactly a thing of beauty either.

  • steve weir

    John W me thinks you jest.

    We factor in changing signatures (I will post my guidelines some time tomorrow on our web site.) If a signature looks like it is deteriorating, we use Election Code Section 3000 says “This section shall be liberally construed in favor of the voter.” When checking signatures, we use this code.

    It is obvious when a signature is impacted by the aging process. When confronted with such a signature, we accept the signature and send the voter a new voter registration card to capture their signature.

    BTW, those citizens who had their penmanship via the “Palmer Method” maintain their distinct hand writing character…the bad news is that the Palmer Method yields similarities in signatures.

  • John W

    Steve,

    Who me? Jest?

    Actually, I assumed your team would, indeed, take such factors as aging into account. My comment had more to do with the casual observers who want to inject themselves into the signature checking.

    I’m not familiar with the Palmer method, as would be obvious to anybody who sees my handwriting (printing) and what passes for a signature.

  • Ralph Hoffmann

    I took penmanship via the Palmer Method some 60 years ago. This election aged me more than usual. Now I have to concentrate on Medicare Advantage and Income tax decisions, both of which are Elder Abuse.

  • Patty O’Day

    I can’t understand why the observers are not allowed to question the signatures. It is my understanding that the people actually doing the checking are temps. They are not handwriting experts. They can make mistakes. I see no reason why observers FROM BOTH SIDES can’t question a signature. It is my understanding that in the other 3 counties in CD 11, the observers are allowed to question the signatures. Why doesn’t Contra Costa follow the same rules? Why does one person (Steve Weir) get to decide this? It doesn’t seem fair.

    Also, regarding the absentee ballots turned in at the polls. I have a friend that turned in 4 absentee ballots for her family at the polls. She had the forms filled out properly and signed where they needed to sign them, but the point is that the poll worker never even looked at them. She was bringing in 4 absentee ballots and the poll worker never even looked to see if the signatures were on the envelope. He just directed her to the box and told her to put them in the box.

    This kind of sloppy poll working by temps is exactly the reason why observers should be allowed to question these signatures if they see something that they think is wrong. To be clear – My friend turned in these absentee ballots in Concord, which is not in CD 11, but the fact remains that these temps can be sloppy and make mistakes. I know, I have worked as a poll worker in the past and have seen many mistakes made.

  • John W

    Patty O’Day,

    As for your friend who turned in the four ballots, there’s a difference between accepting delivery and checking the signatures. Two entirely different steps. The signatures do get checked.

    As for the other counties, perhaps I’m mistaken, but I seem to recall Steve saying a couple of those counties do the signature checking via computer, which I assume would mean there is no opportunity for observers to participate in the signature checking process.

    As for why not have the observers checking the signatures, rather than just observing the procedure, where does it stop? If they demand it, should they be allowed to interrupt and slow down the process by inspecting the actual votes on the individual ballots? The poll workers may or may not be temps, but I’m sure they are given a consistent set of instructions and standards to use in checking the signatures. Who’s an observer? Can I just show up and say I want to start inspecting signatures? What are my qualifications? If I disagree with the official poll worker, are we going to take the ballot to Superior Court for a judge to decide?

  • jack freethy

    I was an observer in Santa Clara County watching the method of signature verification by the elections staff
    last Friday. The election staff has a hard time verifying some signatures, but I feel they were taking extra efforts because we were there. About 1 % of the ballots were rejected mostly because the envelopes were not signed at all. If Contra Costa County is similar to Santa Clara County, I cannot see that observing signature verification would be a problem. But it may be too late. My only comment, Is that I plan to make my signature more consistent from now on.

  • Patty O’Day

    The pollworkers should at least be glancing at the envelopes to make sure that the proper signatures are on there and that the person dropping off the ballot is authorized to do so. This pollworker did not.

    As for having people just observing the procedure and having no say or being allowed to question anything, why bother? What is the use? Just go there, stand there like dummies and not be able to see anything or say anything? Why even allow observers if they can’t even talk in the room?

  • RALPH HOFFMANN

    Patty, your 1st paragraph is correct regarding checking fro signatures, and checking the authorization of the person dropping off VBM ballots.
    We did in my Pct.

    Regarding your second paragraph, talking or intimidating voters by a poll watcher “Ist Verboten!”

  • John W

    I read elsewhere that they’ve worked out a compromise — allowing the observers to stand closer, with each signature on screen for 10 seconds. But observers will still be allowed only to challenge whether the verification procedures are being followed and will not be allowed to challenge individual ballots. Apparently both Steve’s office and the Harmer people have agreed to this. Both the McNerney and Harmer teams have said that the election could still end up in court somehow. Ugh!

  • steve weir

    I’m responding because this is an issue of statewide importance. With the surge in vote-by-mail in the state, this issue gains in importance. You may be on the other side the next time this issue pops up. Beware, it may be your ballot that is challenged, for spurious purposes, next time. Will you be informed by anyone of a challenge against you? (NO). Who do you want there defending your right to have your ballot counted? A partisan, or a neutral County Clerk?

    The judge did not grant the request to allow casual observers to challenge signatures. I only agreed to allow monitored close observation and a slower signature check as a test on less than 2,000 signatures. (Estimated to be 4.5 seconds per signature, expanded to 9 seconds, O.K. someone rounded up to 10 seconds.)

    Those observing can make whatever notes they wish in 10 seconds.

    My staff who checks signatures is following a written procedure (now posted on my website )

    Sorry, if you want to challenge voters, without very strong probable cause, forget it.

    I hope that all concerned are not fishing. Indiscriminate challenge to voters is a crime.

  • Ralph Hoffmann

    John W:
    What you read has been confirmed on the TV News. If this ends up in court again, the team or party taking it to court will look bad in the eyes of DTS voters.

  • Ralph Hoffmann

    Steve:
    Get a good night sleep. You and your staff have earned it.

  • hilltopper

    Lisa,

    I see that you have written in a CC Times story that McNerney’s lead is up to 804. Can you tell us where the votes that were counted have come from? (Of note, the SoS site shows a lead of 624 as of 5:06 p.m.) Once all precincts reported, I have never seen how to tell on that site where newly counted votes came from.

    BTW, thanks for the great job you are doing on this close race.

  • steve weir

    Ralph, there is precious little repose, for there are the “starbucks” gang…..overheard saying “lets challenge everything”. I’m being hounded by the nitpickers. No substance, just innuendo. I wish the good citizens of Contra Costa would avail themselves of the opportunity to observe our well thought out processes (and witness the accusations). Your presence would trounce this attack upon us.

    Well, I clearly understand, that that is my job on your behalf, and I will not be bullied. (You may have read my comments on this previously. The hounds are out.)

    I do not wish to paint that even a majority of observers are “the bullies”. However, it is not hard to spot them…come see.

    We’re seasoned, and we will do our duty to you and for you.

  • Michael Moore

    Steve and all of the other folks doing the job of counting the ballots. Stand firm and professional. You and your staff and their family’s are of the same stock that defends America from its enemies both foreign and domestic. You are all heroes. None of us out there should provide shelter to the nay sayers and haters that are assailing you minute by minute. We support you.

  • Tom Benigno

    Let’s hope that the winner of the 11th can get down to work for the people.