By Kim Zetter , July 12, 2007 | 7:12:24 PM
Categories: E-Voting

The results of a 2004 California election involving medical marijuana went up in smoke today after a local judge tentatively threw out the disputed results and sanctioned election officials for failing to hand over crucial electronic data from voting machines used in the election. The judge ruled that officials failed to preserve evidence stored on electronic voting machines involved in the election dispute before returning the machines to their manufacturer, Diebold Election Systems.

It's a small case but nonetheless an important win for voting activists who have, until now, not always found courts amenable to granting requests for data from voting machines.

The accuracy of the Diebold machines was called into question by voters in Berkeley, CA, who disputed the results of a ballot measure regarding medical marijuana that would have, in part, removed a cap on the amount of marijuana a patient could obtain. Supporters of the failed measure --which lost by only 191 votes -- asked for a recount as well as access to the digital records of the votes and the system audit logs of the Diebold touch-screen voting machines.

They got the recount -- after paying $22,600 for it -- but Alameda County election officials refused to give them access to the digital records and system logs. The plaintiffs sued for access but in the midst of that litigation, election officials returned the voting machines to Diebold, along with crucial data stored on the machines -- which has now been erased on all but 20 of the original 482 machines.

According to the plaintiffs' lawyer, Gregory Luke, the election officials repeatedly lied to the court about what data they had and feigned ignorance about how the voting machines worked so they wouldn't have to hand over data.

Photo: Gary L. Gehman

Luke says officials told the court they had preserved all the electronic data from the election when they hadn't, then told the judge they didn’t have the software or hardware needed to interpret the electronic data, although they did. Luke says they also told the judge that the machines contained no redundant memory with a backup of the votes. In fact Alameda's former registrar of voters Elaine Ginnold discussed the digital backup with me in a story I published in 2003. Ginnold described for me what the county does with the redundant memory:

Votes on machines are written to a memory chip in addition to the removable memory card. Once votes on memory cards are counted, the memory chips get counted as well.

"Their claims were entirely preposterous," Luke says.

The court seemed to agree. In April the judge ruled that officials had violated the California constitution and election law by withholding evidence and today, in addition to tentatively nullifying the election results, the judge ordered the county to repay the plaintiffs their $22,600 recount fee as well as part of their legal costs. A hearing is scheduled for tomorrow to allow the county to respond to the ruling before it's made official.

The plaintiffs will now have to go through the expense of campaining again for the measure, but Luke says his clients are happy to get a chance for a do-over.

"It's the fairest thing to allow the people of Berkeley to speak its mind about this issue and vote on it again."