Mystery, sniping and challenged ballots — all swirl around the extraordinary recount in the Congressional District 16 race as it drags into its third week.
Who will emerge the victor — if anyone — between Assemblymember Evan Low and Santa Clara County Supervisor Joe Simitian who are in a dead heat for second place?
There may be no hanging chads in this ballot counting, but the much awaited outcome is still very much unknown.
On April 15, Santa Clara and San Mateo counties began the ambitious task of recounting the more than 182,000 votes cast in the March primary race to replace retiring U.S. Rep. Anna Eshoo. Since then, nearly 175,000 ballots have been pulled out of storage boxes and rescanned by machines. As of Friday afternoon, Low had a one vote lead on Simitian.
The political veterans ended the primary with 30,249 votes each behind former San Jose Mayor Sam Liccardo. While there was no trigger for an automatic recount in this race to break the stunning tie, Jonathan Padilla, a 2020 and 2024 Biden delegate and former Liccardo staffer requested it and has been paying for it through a Super PAC called Count the Vote.
In Santa Clara County — where more than three-quarters of the vote was cast — the counting has slowed to a trickle in recent days. By Tuesday afternoon, the seventh day of the recount, the county had counted 175 of 199 precincts. The next day, only nine new precincts were reported and on Thursday only three were added. Friday saw even fewer precincts with just two being added to the total tally.
The slowdown has frustrated Padilla’s attorney, Matthew Alvarez of Rutan and Tucker, who told The Mercury News that the remaining precincts have been taking so long because county workers “are struggling to find all the ballots that they need to be counting.”
“It’s their incompetence that’s costing us money,” Alvarez said, referring to the $12,000 a day they’re spending on the recount in Santa Clara County. “It’s their inability to keep track of ballots by precinct and make sure the same amount of ballots are counted in the original count as the recount that is making this last longer and keeping the prices up.”
Santa Clara County Registrar of Voters spokesperson Michael Borja disagreed with the claim that ballots had been misplaced. He said that when ballots arrive, they are organized into precincts, but since not all ballots come in together there are separate boxes for each precinct.
“One complete precinct could be spread out in different boxes,” he said of why it’s taking some time. “We’re tracking down all the precinct batches and making them whole.”
Kim Alexander, the president of nonpartisan election watchdog group California Voter Foundation, said that “the difficulty in conducting recounts is an unintended consequence of the Voter’s Choice Act.”
Half of California counties, and 80% of voters now can cast their vote anywhere in the county, vote early or by mail instead of only at their local polling place, she said.
“It is a convenience, but it makes it difficult to conduct a recount in a simple way after an election,” Alexander said.
Some ballots challenged by Padilla’s attorneys that were rejected by the county could also drag the process out even longer.
Last week, Alvarez challenged 24 ballots in Santa Clara County that were excluded in the original count. This week, seven of them were counted: one involved a signature matching issue that was remedied and six were conditional ballots improperly given to people already registered to vote.
But 16 were also rejected. The debate centered on a check box on the conditional ballot form, which is given to people registering to vote on Election Day. The 16 individuals failed to check the box where they swear they are a U.S. citizen, so they were never counted. Alvarez, however, argued that the voters also signed the line on the bottom of the ballot, attesting under penalty of perjury that they are at least 18 years old and a citizen.
The argument wasn’t good enough for the county, leading Alvarez on Friday to send a strongly worded letter to election officials asking them to reconsider. In the letter, Alvarez said the county has “unceremoniously chosen” to “silence voters in a crucial primary election based on tortured, bureaucratic nonsense.”
“These voters told you — under penalty of perjury — that they are citizens, but in one fell swoop, you have decided to strip them of their voting rights, all while calling them non-Americans and liars,” Alvarez said. “This is no government for the people.”
In an email, Assistant Registrar of Voters Matt Moreles said that the county is committed to conducting the recount with “integrity and security and that all lawful votes are included in the recount.”
Moreles said the county consulted with the Secretary of State’s general counsel’s office in the decision. He also pointed to the California National Voter Registration Act Manual, which says that if someone trying to register to vote fails to check the citizenship box then “the application cannot be accepted” and election officials “must attempt to contact the applicant to seek this information.”
“The Secretary of State’s general counsel’s office confirmed that this guidance to county elections officials applies to these sixteen ballots, and that the ballots cannot be counted,” Moreles wrote. “The guidance is based on federal law requirements in the NVRA and the Help America Vote Act for affirming citizenship during voter registration, which is the controlling law despite any potential differences with state law.”
Santa Clara County Executive James Williams also criticized what he called “hyperbolic language” by Alvarez that he said is “insulting to the dedicated civil servants at the ROV whose mission is to ensure the integrity of our election system and that every citizen who wishes to vote can do so consistent with the law.”
“While critiques and disagreements are to be expected in such a close election, we must never normalize the kind of corrosive attacks on our election officials and system that we are hearing across the country,” Williams said in a statement.
The California Voter Foundation’s Alexander said that while some states require identification to cast a ballot, “California relies on voters’ sworn attestation that they are a U.S. citizen. Voters sign the voter registration application under penalty of perjury.”
She added that it isn’t the job of election officials to check citizenship status and that California lawmakers haven’t given them that responsibility either.
How the 16 ballots will work out is yet to be seen, but from Alexander’s view, election disputes “routinely end up in court and are left to a judge to decide.” In this situation, she said that is likely to happen.
Padilla had choice words about both the delay and the challenged ballots.
“After telling multiple people in recent days that they couldn’t find lost ballots, it’s amazing they’re now claiming they never lost any,” he said in a statement. “As bad as that is, it’s nowhere near as shameful as Santa Clara County refusing to count 16 clearly legal votes.”
In San Mateo County the machine recount was completed on Wednesday. Their recount of 40,070 ballots “perfectly squared with our final results…no changes were found,” said Jim Irizarry, the county’s Assistant Chief Elections Officer.
But the results aren’t final yet. Election officials are waiting for information on 17 ballots that were challenged by Padilla’s attorneys and not included in the original count.
“We are in the process of a very detailed investigation on each ballot,” Irizarry said.
The 17 San Mateo County ballots either didn’t have postmark dates on them — signaling whether they were sent on or before Election Day — or the date was illegible. The county is waiting on the U.S. Postal Service to confirm the dates on the ballots and don’t expect to have an answer until next week.
