By Ken Epstein

The Alameda County Board of Supervisors this week recommended a manual recount of the Oakland mayoral race and other close ranked-choice election results in the county Nov. 8 elections but fell short of requiring a recount and making clear that the supervisors’ decision was contingent on what is allowable under California election law and regulations.

Passed unanimously Jan. 10 by board members, the resolution who authored by Supervisor Keith Carson, who said he and other board members have received “thousands” of emails and phone calls urging the recount.

“In order to enhance transparency and accountability regarding the ranked-choice voting results, I am recommending consideration of a recount count of the Nov. 8, 2022, ranked choice elections for which the outcome has been called into question, specifically the Oakland Mayoral race, Oakland Unified School Board District 4 race, and the two races in San Leandro that were decided by a very small margin of victory,” Carson’s resolution said.

Ignoring the one race that the Registrar of Voters said was tallied incorrectly, the supervisors said they would pay for recounts in all ranked-choice election that resulted in narrow victories, failing to provide any evidence of errors in the vote count.

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The resolution called for the Registrar of Voters to hire a “qualified individual with experience overseeing ranked choice voting from another county” to oversee the manual recount. The county would charge the cost of the recount to the budget of the Alameda County Registrar of Voters, a charge that would be borne by taxpayers.

Though they passed the resolution, supervisors were unsure that the actions they were recommending were legal.

“We request the registrar conduct the recount, (but) but we’re not going to order it. We’re not sure we can order it,” said Supervisor David Haubert, who represents Dublin, Livermore, and Fremont.

Supervisors noted that the votes have already been counted and certified, that the deadline for challenging results has passed and that winners have already been sworn in, asked county counsel if their actions could be legally challenged.

“Any action we take can be challenged,” county counsel said.

Alameda County’s election results were certified on Dec. 8.

The county counsel said the resolution includes the following language, which she recommended:

“The recommendations set forth in this letter will be implemented to the extent allowed and consistent with the California Elections Code, state regulations implementing the Elections Code, and all other applicable laws governing California elections, including those governing recounts the authority of the Elections Official (the Registrar of Voters).”

Supervisor Carson acknowledged the unlikelihood of obtaining a recount that would reverse election results.

“The bell has already been rung. We cannot un-ring it. We understand that,” he said.

A manual recount could take a month or longer and cost many thousands of dollars, according to the registrar.

Many of the public speakers at the board meeting, either in person or on Zoom, who supported the recount, were from Fremont, Danville, Hayward, and other cities outside Oakland. Among the supporters of the recount were Republicans who argued the election results could not be trusted, while others advocated getting rid of ranked choice voting, called for ending vote by mail, or recommended requiring people to vote in person with ID.

Some people in Oakland are saying ranked-choice voting is unfair and argue Loren Taylor should have won the election because he had the most votes first-round votes, leading Sheng 33.07% to 31.79% of the vote. However, Oakland requires a candidate to receive over 50% of the vote to win, not just a plurality. When all the ranked-choice instant runoff ballots were counted, Thao won with 50.30% to Taylor’s 49.70% the vote.

Supporters of ranked choice voting, which has been utilized in Oakland since 2010, say that it allows for a more diverse and less well-funded candidates to run for office and that it provides for an instant runoff, rather than a separate run-off election which has a participation rate of about 40% fewer voters and is therefore less democratic.

However, while questioning election results, the supervisors did not speak to or seek to correct the error in the one race that had been identified by the Registrar of Voters as being tabulated incorrectly, which recorded Nick Resnick as the winner of the Oakland District 4 school board race, rather than Mike Hutchinson, who was the real winner.

Seeking to remedy the error, Hutchinson has had to hire a lawyer at his expense. A recount in this race would not address the error, which was not a mistake in the count, but a tabulating error caused by incorrect setting in the ranked choice algorithm. A recount would not benefit Hutchinson, who was the ranked choice winner, but could potentially benefit Resnick, who was the losing candidate but has been seated as the District 4 school board representative.

The software error, which was admitted by the Alameda County Registrar of Voters, involved a wrong software setting that affected a small subset of votes in which voters did not vote for a number one candidate but voted for second and third-place candidates. When corrected, this error only changed the winner of one race.

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