Lawmakers Consider Automatic Recounts in California Elections

To hear Kevin Mullin tell it, this summer's saga in the race for state controller was the first time even he -- a sitting assemblymember -- realized just how antiquated and unfair California election law is when it comes to recounting votes in razor-thin races.

"That really opened my eyes to how undemocratic our process is and how potentially chaotic," said Mullin (D-South San Francisco).

On Thursday Mullin introduced legislation to create a process for an automatic statewide recount in California -- something other states have, and something supporters say will make clear just how and when to tally votes a second time.

"It strikes me as a fundamental fairness question," Mullin said.

Mullin's newly amended Assembly Bill 2194 would require an automatic recount of all ballots in a statewide race -- including ballot measures -- if the gap between winning and losing sides is less than one-tenth of one percent of the votes that each side received. In a June primary election, the automatic recount would apply to candidates who appear to have placed second and third ... the third place vote-getter, of course, being the one who misses making the fall ballot under California's top-two primary system.

Had AB 2194 been in effect this year, the margin between Betty Yee and John Pérez of 481 votes would have easily triggered an automatic recount, as would have happened for any gap smaller than 1,756 votes.

Data compiled by the National Conference of State Legislatures shows that 20 states plus the District of Columbia have some sort of automatic recount standard. But the threshold for a recount varies. Many base it on votes cast, while some like Michigan set a hard standard of races where the margin of victory is 2,000 votes or less.

(Almost all states, as the data shows, allow a losing candidate or concerned voters to request -- and pay for -- a recount of votes. That's the existing standard in California, too.)

In multicandidate elections, the standard set in Mullin's new legislation likely means a pretty narrow gap. But in a race where there are only two candidates -- which is the system California now uses for general elections -- and in ballot measure races, the gap could actually be much larger and still trigger an automatic recount. That's because only two choices -- two candidates or "yes" and "no" in propositions -- split all the votes.

"The 2012 election had 13.2 million voters," said Karen Rhea, chief deputy registrar of voters for Kern County, looking back at California's election two years ago. "So that would have been [under the proposed legislation] 13,200 votes that would have triggered a recount."

And would enough votes really have been incorrectly counted for a gap of that size to disappear? Consider this: When Rhea and her Kern County colleagues recounted votes in the controller's race as part of a formal request filed by Pérez last month, they tallied almost 38,000 ballots a second time. The totals changed by only two votes.

Others with gaps that look small in percentage but large in raw numbers, have also come up short. Backers of a 2012 tobacco tax initiative requested a recount, and then stopped it, after election results showed their proposal losing by about 29,000 votes.

"It's important,that the [automatic recount] thresholds that are put in place acknowledge that we do a pretty good job counting ballots," Rhea said.

Recounting ballots are especially tricky when it comes to the calendar. June's recount in the controller's race was on track to bleed deep into the general election calendar when Pérez pulled the plug. A recount in November could, depending on how it's done and whether warring sides mounted legal challenges, could come close to the time a candidate is actually scheduled to assume the office he or she thinks they've won. Observers point back to the historic presidential cliffhanger in 2000, which didn't end until the middle of December.

Recounts also cost money. Mullin says a statewide recount under his proposal could cost $1.9 million, a cost the bill says -- but does not mandate -- should be borne by the state, not individual counties.

"It strikes me as a fundamental fairness question," Mullin said. "In terms of voter confidence, there is a rationale for the taxpayers -- the state government -- intervening and saying, 'We will pay for a statewide, state-funded recount.'"

Whether the Legislature can tackle in its final month the complicated questions that underlie the pretty simple premise of a recount remains to be seen. Elections officials in some counties have suggested the issue be considered in detail in 2015 and that lawmakers not rush to change the state's recount law in these final few weeks of the legislative session.

Mullin's reaction: Even incremental changes that have to be added to in 2015 are better than the existing system if November produces some kind of electoral cliffhanger. As such, his bill has an urgency clause -- which requires a supermajority vote in each house -- so that it may take effect immediately.

"I don’t want to defer action, because the only urgency, at that point, is the 2018 statewide election cycle," Mullin said. "I don't want to wait that long."