CD11: Harmer taking Contra Costa to court





Congressional District 11 GOP nominee David Harmer will seek a court order in Superior Court in Martinez this afternoon to stop the vote-by-mail signature verification process in Contra Costa County.

Harmer, who ran against incumbent Democratic Rep. Jerry McNerney on Tuesday, says his team should be allowed to challenge the signatures on vote-by-mail ballots.

Contra Costa Election Clerk Steve Weir disagrees. He says the county’s written procedures and guidelines clearly state that observers may challenge the process of counting ballots but not individual signatures.

Challenges to a specific voter’s right to cast a ballot must be made through a pollworker at the polls or through a challenge of a voter who has requested a vote-by-mail ballot, Weir said.  This allows the voter to respond to a challenge of his or her right to cast a ballot.

“While Harmer has claimed irregularities, not one instance has been presented to us,” Weir said.

Harmer spokeswoman Melissa Subbotin disagreed and said the other three counties in District 11 allow challenges of signatures on submitted vote-by-mail ballots.

“We just want to ensure that the signature review process is done openly, fairly and transparently,” she said. “Neither side is being afforded the opportunity to review and observe the signature review process.”

The backdrop of this legal dispute is the outcome of the 11th District election.

McNerney leads by 568 votes, an incredibly tight 0.3 percentage point advantage. The votes were breaking the Democrat’s way on Election Day, which means McNerney has little incentive to challenge the counting of ballots that arrived in election offices on Monday and Tuesday.

Harmer, on the other hand, could benefit if signatures on late arriving ballots are deemed invalid and thrown out, ensuring that potential votes for his opponent never show up on the tally.

Stay tuned.

Lisa Vorderbrueggen

  • Jerry Dees

    Steve, Thank you for engaging in this forum. It isn’t a topic that lends itself well to sound bytes and a quick understanding. Your commitment to providing depth and breadth is really appreciated.

    Here is one of the questions I referenced in #36.

    I tried reading the Elections Code with your procedures in mind. I ran into some problems reconciling the two. Some of these problems are probably attributable to me never reading either of them before this last Friday. I wonder if you can shed some light on how the following procedure fits the Code.

    Your procedure is to not let the observers close enough to read or compare the absentee envelope signatures and the signatures on file.

    EC 15104 (d) “. . . voter observers shall be allowed sufficiently close access to enable them to observe the vote by mail ballot return envelopes and the signatures thereon and challenge whether those individuals handling vote by mail ballots are following established procedures, including all of the following:
    (1) Verifying signatures and addresses on the vote by mail ballot return envelopes by comparing them to voter registration information.”

    EC 2194 (c) (2) “An elections official shall permit a person to view the signature of a voter for the purpose of determining whether the signature matches a signature on an affidavit of registration or a petition, but shall not permit a signature to be copied.”

    Thank you for all your help.

  • Voter Fraud is alive adn well in CA

    What I see:
    Voter fraud is alive and well in CA. We have an SEIU candidate beholden to the unions with SEIU members counting ballots, comparing signatures AND in Santa Clara, they are “cleaning” ballots which constituted a pen at every desk and an ink eraser used to rub over every ballot. In some cases these workers rubbed pretty hard on top of votes. Would that be votes they did not like so the counting machine wouldn’t pick it up?

    Thier other process of “enhancing” the vote is illegal as well. Let me see… what is the description of “enhancing” by the SEIU members? If I see a possible vote mark that looked remotley like someone wanted or tried to make a voter mark, I use the marker pen and vote on that ballot for the person.

    Erasers erase pencil as well. Did you know when they come across a pencil vote, they will darken it with pen? Would if thier “cleaning” ballots process erases the pencil mark? Well then you can take that pen and make the ballot mark reappear anywhere on the ballot you want!

    Why are the county employees whom are also SEIU union purple shirt members allowed to handle the ballots? Why are county employees who are SEIU union mebers allowed to pick who works at the polling places?

    Why are SEIU members allowed to be hired as temporary workers in the ballot counting process?

  • John W

    Re: #52 Voter Fraud is Alive and Well in CA

    Them’s some pretty serious specific accusations and innuendoes. Have you heard of defamation laws? The internet isn’t as anonymous as you think. By the way, I believe Steve Weir previously indicated he doesn’t have any SEIU people.

  • steve weir

    First, Jeopardy is coming on and I need to have that diversion.

    Fraud. Pardon me, but, this is close race syndrome, BS.

    I’m seeing it with the Starbucks strategy, “challenge everything”…


    Put up or……

  • steve weir

    Jerry, EC 2194, which deals specifically with the confidentiality of voter registration information (signature, and others) allows the close observation of signatures ” EC 2194 (2) “An elections official shall permit a person to view the signature of a voter for the purpose of determining whether the signature matches a signature on an affidavit of registration…”

    Do you think this allows you to challenge a signature? I respectfully assert the answer is NO. This allows you to see our process, which involves the viewing of confidential signatures, while we are processing our check.

    I have to state again, the nexus is not with WC 15504. (b). As per my previous post; Look at EC 15105 and EC 15106. You do NOT have the right to challenge signatures of individual absentee voters, and the Judge agreed with my position today.

    Once again, I ask, would you review these section and give me your opinion on what you think they mean?

  • Velma Hampson

    Why does this man Harmer think I should be disenfranchised? Why does he want any voter disenfranchised? Is it because he is a republican who wants as few votes counted as possible? For challenging my vote and any other vote by mail ballots, I want his apology NOW. And since he wants to disenfranchise vote by mail voters perhaps he needs to spend a little less time defending banks and running for office and a little more time studying our rights. And even if he should happen to win this election, a man who tries to steal my vote from me will NEVER represent me.

    Thank you, Mr. Weir for standing up for those of us who vote by mail.

  • Jerry Dees

    Steve, I agree whole-heartedly with your “close-race syndrome” analysis. 90% of what I’ve read in this blog about possible or attempted voter fraud, ignores the realities of the protections that are built into the system. You better than anyone would know the weaknesses and strengths of the system.

    I have time tonight and I’ll attempt to answer or respond to all your questions from #55 in the order you presented them.

    I read EC 2194 to contain exceptions to the voter information confidentiality rules that allow you (the CCC Registrar of Voters) to let observers (and others) see the signature and other voter info. I have never thought that it allows or even speaks of challenges to signatures or your process. I see it as corroborating authorization to EC 15104 (d) allowing observers to be close enough to compare the ballot envelope signature with the voter signature on file. I believe the parties in court today were “nudged” in this direction by the judge and agreed to this approach on the remaining 1700 ballots that hadn’t been signature verified yet.

    I’m thinking challenges are covered in EC 15104-15108, with additional sections referenced or applicable.

    You mentioned for the second time “the nexus is not with WC 15504. (b).”, but I’m not sure what your are referencing here. While the section # is found in the election code, I can’t find any subparagraphs, nor does the content seem to match your point. I think the Water Code is referenced as WC, but don’t have access to this to confirm its applicability. I apologize, but I’ve exhausted my limited resources. If you could provide a copy, I’d be happy to reply.

    I’ve read 15105 & 15106 and can’t find anything that creates a problem for me believing that the Elections Code authorizes observers to view and challenge VBM signatures that don’t match the voter’s signature on file. I’ve inserted these two sections as the following two paragraphs, just in case I have an outdated version. If you could let me know what you see in them that leads to observers not being able to challenge voter signatures that don’t match, I’d be happy to share my opinion of what they mean.

    15105. Prior to processing and opening the identification envelopes of vote by mail voters, the elections official shall make available a list of vote by mail voters for public inspection, from which
    challenges may be presented. Challenges may be made for the same reasons as those made against a voter voting at a polling place. In addition, a challenge may be entered on the grounds that the ballot was not received within the time provided by this code or that a person is imprisoned for a conviction of a felony. All challenges shall be made prior to the opening of the identification envelope of the challenged vote by mail voter.

    15106. Except as otherwise provided, the processing of vote by mail ballot return envelopes, the processing and counting of vote by mail ballots, and the disposition of challenges of vote by mail ballots
    shall be according to the laws now in force pertaining to the election for which they are cast. Because the voter is not present, the challenger shall have the burden of establishing extraordinary proof of the validity of the challenge at the time the challenge is

    When you wrote, “You do NOT have the right to challenge signatures of individual absentee voters, and the Judge agreed with my position today”, I was wondering when and in what manner the judge agreed to that position.

    Like the many writers and readers of this blog, I do sincerely appreciate your participation here. I frequently finish a newspaper article with more questions than answers. I may disagree on a portion of the issues you and I discuss, but I understand your position and passion much better. If it’s OK for reasonable men to disagree, and since I’m not always reasonable, disagreeing with me is frequently a good thing – it helps me grow.

  • Bruce, San Jose

    And no one is suspicious that last minute ballots just seem to always show up in favor of the Democrat?

  • John W

    Re #58

    Suspicious in what way? It’s not like you can go to Kinkos and produce fake VBM ballots that would get by the registrar. If there is any room for funny business, it would be provisional ballots, which is why extra care is taken with those.

    Fact is, Democratic candidates in every other office have won by comfortable margins in Contra Costa (AD 15 and the statewide offices). So, in a way, it’s surprising (oooh, maybe even “suspicious”) Harmer has a slight lead in the county.

    In today’s newspaper story, the GOP attorney has already speculated about (a) having a voter demand a recount — presumbably with funds provided by the GOP; (b) going to court if the recount isn’t satisfactory; and (c) charging irregularities and turning it over the the Republican-controlled House of Representatives to seat Harmer.

    I don’t think all this noise is about signature verification at all. Looks like it’s about creating a pretext to, at the very least, prevent McNerney from being seated for months even if he is declared the winner — as was done with Al Franken and the Senate seat in Minnesota. Turning it over to the House would be extreme, to put it mildly, and would stir a firestorm of protest. But anything’s possible. As the GOP has been saying, they want to “take back our country.”

  • Eric S

    Re #58

    Bruce, see my comment at #50. And although I can’t claim that my experience is a representative sample, the chatter I heard at the McNerney campaign offices was that very few of us were seeing Harmer volunteers in the streets. It seems that Harmer spent most of his money on media advertising; he didn’t have that many devoted volunteers doing the hard work in the last few days of getting his voters to the polls or encouraging them to mail in their ballots.

  • John W

    Eric S,

    My hat’s off to you and your fellow volunteers for such a remarkable get-out-the-vote effort. I share your respect for McNerney for the very same reasons you mentioned in #50, but I can’t claim to have invested any of the sweat equity you did.

    If Harmer loses, he can also thank David Christensen, the AIP candidate, for siphoning off quite a few votes.

  • Patty O’Day


    Sorry Eric, but the chatter you were hearing at the McNerney office was apparently very incorrect. I was one of the volunteers working at the Harmer HQ, and trust me, we had lots and lots of volunteers. Of course, there are never enough, are there? We were hearing chatter from moveon.org saying that McNerney was begging for volunteers. Funny how that “chatter” works, huh.

    John W – I am stunned to hear that you have not invested any “sweat equity” in the campaign, especially since you always have so much to say, on every single issue. I think they call that arm chair quarterbacking.

    Even though I strongly disagree with the candidate that Eric was working for, I respect the fact that Eric got off his fanny and worked for the candidate that he supported. I know that John W. is not the only person on this blog that also has a lot to say with no action.

  • Elwood

    “especially since you always have so much to say, on every single issue”

    Ya think?

  • John W

    Patty O’Day #62 — Jeesh, try to pay somebody a compliment for their good work and get blasted in return! Guess, I should have just said kudos to Eric and not opened myself up to your self-righteous comment. Like others, I’ve done my bit before and, with luck, will do more in the future.

  • steve weir

    Someone once memorialized the saying (Chicago, 1968?) “The whole world is watching”.

    At the Primary, February, 2008 election, we all now know about the Obama surge. Hilary Clinton won the VBM balloting. However, Obama surged to win the election day vote. He was not able to overcome the VBM effort of Clinton. This is a fact.

    So, Clinton carried Contra Costa, despite the “Obama” surge.

    What is obvious is that when a vote is cast makes a difference.

    Harmer won big in the early vote by mail results Contra Costa.

    Harmer was ahead in the early VBM totals. McNerney led in the election day totals. To no one’s surprise, we know that early VBM are different from the dynamics of election day numbers. (Let me tell you, regardless of persuasion, every one of the professional observers of the 11th CD contest, knows this issue of trends.) The early VBM ballots trended for Harmer, and the later ballots cast, both at the polls and the later VBM were trending towards McNerney. This is not a surprise, it is a fact.

    Early VBM ballots have one dymanic, and if election day trends are shifting in one direction, the
    VBM ballots cast later in the election cycle tend to move closer to the candidate who is doing well on election day. (If your candidate did well in the early VBM, and did well on election day, there is a very strong correlation with that candidate winning outright.)

    What does all of this mean? Quite simply, if you are going to try and predict the outcome of the election based upon the early VBM ballots, you have engaged in a weak analytical endeavor.

    It is the totality of an election (read, every vote counted) that constitutes the victor.

    Having said that, we have yet to complete the canvass. Every Registrar must account for every legitimate vote cast. We have gone to legally reasonable ends to insure that the public has had the opportunity to observe our procedures.

    The 11th CD is not the only close race in this election. Let me tell you about one race that is NOT close. A certain Mayoral race in a certain County Seat has generated attention, not because it is close, it is not. The apparent successful candidate holds a three to one advantage over the challenger. Regardless, the “runner up” continues to claim victory, absence electoral trickery. Claim: three precincts arrived with their vote card bag was broken. Remedy, any such mis-match is re-tallied. (We have your actual voted ballot and that serves as the base result in any contest.)

    For any of you who have taken the opportunity to observe the Contra Costa count, you might notice a large number of observers (from both sides) who are here from places afar. In addition, we have enjoyed a larger number of observers from our Bay Area and many from Contra Costa.

    Win-lose-or-draw, I would hope that those who have taken the time to observe our procedures will acknowledge our strengths in protecting your right to vote (even though, you are not present to protect your rights).

    As of this writing, it seem that a vast majority of the vote has been tallied. However, we are not finished; allow us the time to complete the canvass. As a seasoned veteran, I can tell you that it takes as long to process the last 5% of the vote as it has taken to process the first 95%.

    Thanks for allowing me to post on this blog. Respectfully, virtually no part of this post would make it in the traditional media reporting.

  • Elwood

    Good job, Steve!

    Stand up for what you know to be right!

  • Laura Sanborn

    Thank you for the thorough explanation Steve. Your professionalism continues to shine through.