A state judge has rejected demands by local voting rights groups to have the Alameda County Registrar of Voters publicly disclose records related to mistakes in the 2020 election that resulted in more than 100 voters’ ballots not being counted.
Judge Frank Roesch said in his Aug. 31 decision that the county’s Registrar of Voters, Tim Dupuis, did not need to provide original documents and data.
“It appears to the court,” Judge Roesch wrote in his order, that the “documents are useless to derive any information after the … names and addresses of the individual voters are redacted.” Roesch came to his decision after reviewing the documents himself.
The ACLU of Northern California and Asian Americans Advancing Justice-Asian Law Caucus filed a lawsuit against the Registrar of Voters earlier this year seeking records related to the mistakes that led to the non-counting of ballots. The biggest example of lost ballots happened when more than 100 voters were allowed to leave the Oakland Mills College voting center with ballots in hand instead of scanning them into the registrar’s system where they could be counted. The confusion stemmed from poor instructions given to poll workers by the registrar’s staff before and during the election.
Although no one has alleged that any of the 2020 election outcomes were affected by the small number of lost ballots, the two voting rights organizations said they filed the public records lawsuit to see whether the registrar has a proper understanding of what caused the problem, and to see what exact steps the office needs to take to ensure it won’t happen again.
“The incorrect instructions provided to voters were likely a result of the ROV’s poor training and inadequate support of poll workers,” the petition stated.
Three weeks after Election Day, Dupuis filed a petition with the Alameda County Superior Court to allow him to count 32 additional ballots it had received from voters who had been incorrectly instructed to take their ballots home. But an estimated 70 or more remained uncounted.
There were other mistakes made during the 2020 election. At other county locations, the Registrar failed to put up facsimile ballots in languages other than English, or to provide printed copies of them if requested, as required by law, the ACLU Northern California and Asian Law Caucus wrote in their lawsuit. The registrar also allegedly failed to install the proper number of ballot drop boxes, with less than half of all drop boxes available on Oct. 7, 2020, when early voting began.
“The public’s trust in elections relies heavily on transparency about how local election officials administer and conduct elections,” the groups wrote in their lawsuit. “Given the severity of the widely reported problems at Mills College, the public interest is served by greater transparency around how and why the errors occurred in the first place.”
Some of the specific documents the petitioners sought included any “information about the training and support the ROV had offered poll workers during the election,” as well as what choices he made at the time to fix the problem. The groups also wanted access to raw data so they could basically audit the registrar’s work.
“If we can compare those numbers, then we can verify, “OK, this does match up, or it doesn’t match up” with the numbers that have been stated publicly,” Brittany Stonesifer, a lawyer for the ACLU Northern California and the petitioners’ lead litigator, said.
The Registrar of Voters did not respond to requests for an interview for this story.
Mistakes during an accessible election complicated by an unprecedented pandemic
The Registrar said that switching from the old precinct model of voting, where numerous small voting locations opened up on the day of the election, to the new voting center model, where fewer but much larger locations are opened up many days in advance of an election, caused confusion. The fact that this had to happen in the middle of the pandemic made things more difficult for county elections staff.
“The pandemic hit right as we were finishing the primary [in 2020], and to layer [high turnout] on top of it makes this one of the most historic November elections we’ve seen in this county,” said Dupuis in 2021. “Something of this scale always has opportunities for improvement.”
As early voting was underway in late October and early November, two poll workers revealed their supervisor erroneously told them that ballots were voting receipts that voters could take home. Instead, the ballots needed to be scanned at the center in order to be counted. When they called the Registrar of Voters’ hotline, the poll workers were given the same bad information.
The situation was made public when the poll workers contacted the local advocacy organization Oakland Rising, which was one of several groups monitoring the 2020 election. They also reached out to us with their story.
The ACLU and Asian Americans Advancing Justice-Asian Law Caucus initially sought records from the registrar through a public records act request. The Registrar did provide some written responses and documents about the mistakes that led to some ballots not being counted. But both organizations said these responses were not complete and only produced after repeated inquiries. After several more attempts to obtain records that were rejected by the registrar the groups filed their lawsuit.
The groups and one of the poll workers who exposed the problems said they are disappointed in Judge Roesch’s decision.
Stonesifer said that Roesch “didn’t seem to fully understand” why the public needed the records to “verify the ROV’s conclusions regarding the scope of the problem at Mills College.”
“It is a disappointing outcome, to be sure, but we’re glad we were at least able to gain some level of insight through this process about what happened in Alameda during the November 2020 election,” she said.
“I am disgusted by how readily the Registrar cast blame on the volunteers at my site when the training we received was so utterly inadequate and the Registrar representatives answering our calls were so dismissive and misinformed,” said Claire Calderón, one of the poll workers who handled the ballots and became a whistleblower. She said she is not confident similar issues won’t happen again.
A lack of detailed information about the 2020 election problems
Some of the information that the voting rights groups said could help the public better understand what happened wasn’t turned over by the registrar or was provided as summary responses to questions.
For example, instead of providing the original lists (with some redactions allowed) showing which voters used the Mills College center and the vote tally sheets for each day the mistakes were made, the registrar responded by creating a new record that summarized the total numbers.
The voting rights groups also faulted the registrar’s office for what they described as a slow pace of handing over records and answering questions.
More than a month after the election, the registrar had not provided any documents explaining how voting center supervisors were supposed to communicate with poll workers, according to the lawsuit. Instead, Dupuis’ office provided an email response saying there was one captain, 10 judges and seven clerks at Mills College during voting. Weeks later, his office produced only general information about their training process.
The ACLU Northern California and the Asian Americans Advancing Justice-Asian Law Caucus are considering whether or not to appeal Roesch’s decision.
Julia Marks, an attorney from the AAAJ-ALC, said their organization will be looking closely for any problems this year. They will also update their Know Your Voting Rights materials, including voting information in several languages including Chinese, Tagalog, Hmong, Khmer, Lao, Korean, Vietnamese, and Punjabi.
The registrar said in a hearing in front of the Alameda County Board of Supervisors last year that his poll workers will add signs at voting centers making it clear that people can ask for non-English ballots, and signs that will remind voters the “printout is their ballot” that must be turned in to poll workers. Digital voting machines will also remind voters to deposit printed ballots into a central trolley that staff will collect for counting. These changes will be part of new voting technology available at all 100 county voting locations, including the ability to print out new ballots for people specific to their district.