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Silicon Valley Readies for Low-Simitian House Race Recount — but How Does It Work?

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TK Nguyen does quality control for flattened mail-in ballots at the Santa Clara Registrar of Voters on Feb. 19, 2020. (Beth LaBerge/KQED)

A closely watched congressional race in Santa Clara and San Mateo counties has already seen weeks of deadlocked ballot counting.

Then, there was a historically tied finish.

And now, this race is taking yet another wild twist: On Monday, election officials started the process of recounting ballots.

The new count could break the precarious tie for second place between Assemblymember Evan Low and Santa Clara County Supervisor Joe Simitian, who finished behind fellow Democrat Sam Liccardo, the former mayor of San José, in the March primary. If the results stand, all three candidates will advance to the general election in November.

The recount has been accompanied by political mystery, clashes between the campaigns and their allies and a whole host of procedural questions. Here’s what we know about how the recount in the 16th Congressional District will work.

Jump straight to:

Why is this recount happening?

Unlike roughly two dozen states, California does not have a law triggering recounts in close races for federal or state offices. Santa Clara has an automatic recount law on the books, but it only applies to local races, not a federal contest like this.

Instead, recounts are triggered by a request from a voter in the district. Two voters, Dan Stegink and Jonathan Padilla, asked for this recount — but Stegink ultimately withdrew his request, and only Padilla put down the necessary deposit to fund the process (more on that later).

Padilla previously worked for Liccardo and has supported his campaign, leading to criticisms that his pursuit of a new count was motivated by a desire to narrow the field of candidates to advantage Liccardo.

All three campaigns said they have no involvement in the recount requests. Read more about the backstory of this recount.

Under what circumstances is a recount allowed?

Any voter can request a recount — for any office in California.

For statewide offices (such as attorney general or insurance commissioner) or statewide ballot measures where the margin between candidates is within 1,000 votes or 0.00015%, the governor can order a state-funded, manual recount of every vote cast.

How long will the recount take? 

The recount will only cover votes in the 16th Congressional District, which includes Palo Alto, Mountain View, and parts of San José.

The recount could be completed within five days, according to Michael Borja, associate communications officer at the Santa Clara County Registrar of Voters.

“The very first action item would be to retrieve the ballots from storage and retrieve the complete precincts that are requested,” Borja said.

On Monday, Santa Clara County election workers began retrieving the ballots for precincts within the 16th Congressional District. That initial processing will take at least a day, with the counting likely beginning in earnest on Tuesday.

The recount process was set to begin parallel in San Mateo County, but as of Monday morning, election officials said no payment had been received.

How much will the recount cost?

Santa Clara County officials estimate a daily cost of $16,800 for this machine recount, leading to an estimated total cost of $84,200 to count every relevant ballot in the county. In San Mateo, officials pegged the cost of a machine review at $4,550 per day.

In his request, Padilla also requested a review of disqualified ballots, envelopes and other materials and system logs.

“Those will incur additional cost on top of the costs for the [new] tally,” Borja said.

Who is paying for the recount? 

Padilla will have to place a daily deposit to cover the costs of that day’s recount work. If he fails to make the daily payment, Padilla’s recount request will end — although he has suggested that he is, in fact, ready to make the daily payments necessary to carry out a recount.

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Can the recount requesters get their money back? 

Maybe. A recount requester must specify which candidate they are requesting the recount on behalf of. If the results change in that candidate’s favor, the county assumes the cost of the recount and refunds the requester. That means local taxpayers could be on the hook, depending on the recount’s result.

Padilla listed Evan Low as the candidate he is requesting a recount on behalf of, although Low’s campaign was not involved and opposed the request. If Low moves ahead of Simitian after a recount, Padilla could get his money back, according to election officials in both counties.

Lawyers for Low dispute that reading of the state’s law on recount refunds, however. In a Friday letter to the county registrars, they argued that Low is already in the general election as a result of the tied vote. Therefore, Padilla should not be refunded if Low moves ahead of Simitian.

Do the requesters have to make any disclosures about the source of their funds? 

Not during the daily recount deposit process. Any involvement from outside political groups, such as super PACs operating separately from the campaigns, could be revealed in campaign finance disclosures filed in the coming weeks and months.

Once the recount begins, are requesters required to pay for the entire count? 

No. Requesters can choose to stop paying at any point, which could end the count. However, this would void any change in results revealed during the recount up to that point. For a change in the final result to be certified, every precinct in the district needs to be counted.

“You can stop, but the process stops at that time, and there are no changes,” said Jim Irizarry, assistant chief elections officer in San Mateo County.

What is the process for actually counting the ballots? 

The machine recount process is very similar to how ballots are initially counted after polls close.

“We have these tabulation machines in a secure facility,” Borja said. “After retrieving the ballots, the ballots will be put into the machines for counting … and the machines are pretty much scanning the ballots.”

Ballots that the machine has trouble counting will get moved to an adjudication process. These can include ballots in which the voter used red ink or marked their choice in a way the machine could not decipher.

“With the adjudication process, there are two people looking at the same ballot on two screens,” Borja said. “They have to both agree on what the voter’s intent was.”

The election workers reviewing the ballots can ask for help from a supervisor, and observers can also challenge an initial determination and ask for an appeal to a more senior elections official.

The requester, in this case Padilla, determines the order of the ballots counted on each day — meaning that they can ask election officials to start with a precinct in Campbell, followed by one in Los Gatos, for example.

What happens to ballots that were not counted in the initial tally, such as those with signature issues? 

This is perhaps the biggest outstanding question heading into the recount.

In every election, vote counters flag ballots that have issues preventing them from being processed. Typically, those are ballots in which the voter forgot to sign their envelope or wrote a signature that doesn’t match the signature on the voter’s file.

Election officials contacted voters with these issues in hopes of “curing” their ballots, but the deadline for voters to respond and remedy the issues was back on April 2. In Santa Clara County, 115 ballots were left uncured by the deadline.

On paper, those ballots are ineligible to be tallied in the recount. But Padilla is asking for a review of “unvoted ballots” and “all materials used to verify voter signatures.”

It’s possible that Padilla or his attorneys could challenge the decision to place a ballot in the “cure” pile — a move that could lead to additional review by the top elections officer or even legal action.

And as we’ve seen in the past, it’s not unheard of for local or state elections to ultimately be decided by a relatively small number of votes.

How can the public follow along with the outcome of this recount? 

Irizarry said San Mateo officials will publicize the vote tally at the end of every day of recounting ballots. In Santa Clara, however, Borja said the recount results would only be made public at the end of the entire process.

So, true clarity on one of the wildest primary elections in California history may not happen until later in April.

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