After 11 days into the second recount, Councilmember Manh Nguyen decided that he had enough and filed a lawsuit to overturn the election and have a redo in November. He is now trailing Lan Diep by 12 votes.
His reason for the lawsuit is " Voter Disenfranchisement". According to the lawsuit, there were many procedural errors and omissions made by the Santa Clara County ROV that the voter intent might not be honored.
Here are some of the glaring facts that were observed during the recount.
1. There was a loss of 255 votes in District 4 from the original machine count to the manual recount (as reported on Thu 7/14/16). In the original count, the total votes counted by machine was 20,334 (Manh 8661, Lan 8689). In the automatic recount, the total votes counted by hand was 20,079 (Manh 8669, Lan 8683). The tally sheets of the recount confirmed that the total ballots counted was 20,079.
2. Over 300 ballots were duplicated. The duplicate ballot was made from the original ballot since it could not be read by machine.
During the recount, the ROV staff chose not to follow their own ballot duplication procedure. The staff did not give an explanation why they did not follow their own protocol.
ROV staff was supposed to work in teams of 2, where 1 person would read off the original ballot, and the other person would mark the duplicate ballots. They were supposed to cross-check each other’s work, and each is to sign his/her initial on both the original and duplicate ballots. ROV staff did not cross-check each other’s work, and, in almost 100% of the cases, one person initialed for both on the original, and the other person initialed for both on the duplicate. In at least one case, the same person signed both initials on both original and duplicate ballots. In at least one case, there was no initial, simply the stamp and the date.
Since the ROV was careless about generating the duplicate ballots by not following procedure, series of comical errors were bound to happen. The joke of course is at the voter intent's expense.
3. 26 duplicated ballots are missing. ROV refused to use the originals, saying that the missing duplicates are already counted and included with other ballots. But the main reason, staff forgot to stamp duplicates so they could not be identified.
4. 34 original ballots were missing and only their duplicates were available. There was no way to ascertain the validity and accuracy of the duplicates; but the ROV still insisted on relying the duplicates.
5. On Fri 7/15/16, ROV declared the automatic recount done and issued an official statement with Manh Nguyen trailing Lan Diep by 14 votes.
A question was brought up to the ROV about why the tally did not add up in precinct 1416. Matt Moreles, Assistant Registrar, did not know about this irregularity.
On Mon 7/18/16, Moreles announced that staff found a stack of 37 votes left in the bin. They forgot to separate them from the A cards; hence they did not count them. Before this finding, Moreles insisted repeadly that these 37 ballots were counted by machine before.
With the new ballots, Manh Nguyen trailed Lan Diep by 12 votes.
Side note: Even after these ballots were found and counted, Precinct 1416 still had a loss of 4 ballots. The entire D4 still lost 218 ballots.
4. There were a net loss of votes in 33 out of 43 precincts. The ROV could not provide any reasons why or examples of how ballots could be missing. Their standard answer was this is the norm of the recount. This is tenuous claim at best since the ROV has not done a recount for ages and their inexperience showed again and again with their many mistakes.
The recount process has exposed many procedural flaws at the ROV. The voters should also be concerned at the nonchalant attitude of the ROV toward the voter intent. During this ordeal, a number of voters have expressed their worry whether their vote matter, especially in a close election.
The ROV needs to regain the voter's confidence because at the end of the day, the loser in the election is the voters themselves when an office in charge of protecting the integrity of the voter intent is not being held accountable for their actions.
