To my great surprise, California’s Election Code does not require an automatic recount in the case of close elections; it requires a recount of 1% of the precincts, and nothing more. The Secretary of State has remedied that with a series of emergency regulations (which were upheld by the state Supreme Court in some cases this summer). But there is still a problem.
The plan, described in detail here, says that when an election contest is within “the margin of victory”, there shall be a hand recount of 10% of the precincts; and, if that recount causes a shift in votes equal to or greater than 1/10 of the margin of victory, it is to be followed by an escalating recount encompassing more and more precincts until either everything has been counted or the total variance is back under 1/10 of the margin of victory.
The problem lies with the definition of ‘margin of victory’ used by the Secretary of State’s regulations:
(a) After each election, the elections official shall determine the margin of victory in each contest based upon the semifinal official canvas results, as defined in Elections Code section 353.5
(1) For single-winner elections, the margin of victory is the difference between the percentage of votes won by the candidate with the number of votes needed to win the seat and the percentage of votes won by the candidate with the next lowest number of votes.
(2) For multi-winner elections, the margin of victory is the difference between the percentaage of votes needed to win a seat and the percentage of votes won by the candidate with the next lowest number of votes ….
(3) For ballot measure contests, including recall contests, the margin of victory is the difference between the percentages of votes for and against the ballot measure.
(b) For any contest in which the margin of victory is less than one half of one percent (.5%), the elections official shall conduct a manual tally …
This looks perfectly reasonable and, had I read it before the election, I would probably have said that it was the correct procedure. But it turns out that it misses something important: some ballot measures require a supermajority to pass. For such measures, the correct definition of ‘margin of victory’ is not the difference between the votes cast for and the votes cast against; it is the difference between the votes cast for and the minimum number of votes sufficient to provide the required supermajority.
That distinction would have mattered in this election; Santa Clara County Measure B, the “bring BART to San Jose” tax measure, has passed with 66.78% of the vote. But it needed 66.67% of the vote to pass. The opponents of the measure were not entitled to an automatic recount under the Secretary of State’s regulations … but it seems fairly clear that had the regulations been drafted correctly, they would have been.
I am writing a letter of complaint to Secretary of State Bowen. I don’t think this was deliberate; it looks to me like an honest oversight. But it should be rectified before the next election.