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The recount: The City Clerk’s denial and a second recount request

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Photo: FLLewis/Media City G -- Director of Protect California Ballots Judy Alter spoke during public comment at the city council meeting Burbank April 26, 2011

Photo: FLLewis/Media City G -- Director of Protect California Ballots Judy Alter spoke during public comment at the city council meeting Burbank April 26, 2011

The Burbank City Council’s big reorganization meeting is set for this morning at 10 a.m. Last Tuesday, at the city council meeting there was a showdown over the recount request for  the April 12 city council run-off election. The city won the major and decisive points in this showdown.

 Meanwhile, as preparations move ahead for the swearing-in of re-elected Council Member Gary Bric and newly elected Council Member Emily Gabel-Luddy — a second recount request is causing some buzz in B-town.

Photo: FLLewis/Media City G -- Burbank resident Kevin Muldoon spoke in support of the city council run-off recount at the city council meeting Tuesday, April 26, 2011

Photo: FLLewis/Media City G -- Burbank resident Kevin Muldoon spoke in support of the city council run-off recount at the city council meeting Tuesday, April 26, 2011

First the showdown. Burbank resident Kevin Muldoon joined Judy Alter, director of election watchdog group, Protect California Ballots, in speaking out in favor of the recount request.( Disclosure: I am involved in the first as well as the second recount request along with Alter, Muldoon and his wife, Linda).

Photo: FLLewis/Media City G -- City Clerk Margarita Campos answered questions for reporters at city hall in Burbank April 12, 2011

Photo: FLLewis/Media City G -- City Clerk Margarita Campos answered questions for reporters at city hall in Burbank April 12, 2011

In a rare departure from the norm, Burbank City Clerk, Margarita Campos, spoke for more than 10 minutes about the recount and why it was being denied, following the public comments.

Major Point:  Is it legal to substitute a voter for another, if the first voter withdraws from the recount request process? Not under the circumstances present in the first recount request. Ms. Campos read a response from Lowell Finley, Chief Counsel of the Secretary of State, in which he suggested Alter “… may not have fully understood the information I gave her over the phone.”

Basically, I was not able to replace George Marciniw in the original recount request nor could Kevin and Linda Muldoon add their names to it. I have asked Alter for a clarification on what she was told, but I have yet to receive a response.

Minus: Protest period, when a recount  request can be submitted, is five days after the ballot results have been certified according to the California Election Code. The Burbank City Clerk certified the General Municipal Election results on April 15, 2011. And here’s where the city officials took the low road and went for a loophole.  The City Clerk’s Office counted the weekend. Campos claims they did this because the code “… does not request that we preclude Saturdays and Sundays.”

By taking this view, the Burbank City Clerk’s Office robbed voters of two days to submit a recount request. This loophole stole an opportunity for an independent and public review of the city’s controversial mail-in ballot system. How can voters ask questions about the procedure or even hand in the recount request on a Saturday or Sunday — when the CITY CLERK’S OFFICE IS CLOSED ON THE WEEKEND? This reduces the number of days to complete the filing of the recount request to only three days. This decision violated the spirit and intent of the law. What are they trying to hide in that city hall basement?

This loophole needs to be closed. The law has to spell out five business days to stop this cheat from happening again.

Minus: Ms. Campos said “… the ballot count and the canvassing are open to the public.”  She added “… the one percent mandated tally is also a public process..” No e-mails were sent out to the city hall e-mail list for the public or the media about this access. Did this kind of notification come in the voter mail-in package? Obscure posting of this kind of notification is another cheat that denies voters their full rights.

By the way, on election night April 12, Campos escorted me down to the  city hall basement. I was allowed to stay only long enough to take two photos and then I was  hustled back upstairs. I was not allowed to stay and observe the handling of those mail in ballots as part of a “public process.”

Minus:  “The deposit question — that was my error. This is a new process for me,” Campos stated. The original recount request indicates Campos tried to charge $4,500 for the recount — all up front. Finally, she agreed to a deposit of $450.  It appears Alter and Marciniw lost valuable time haggling with Campos over the deposit and the cost of the recount.

By law, the deposit is required at the beginning of each day of the recount.

Point: Campos admits mistakes. The City Clerk has the advantage in that her mistakes can be brushed off with an “I apologize.”  For the recount request voters, mistakes and an untimely withdrawal made it easy for city officials to deny the request. Not fair, but this is hardball politics in Burbank.

Second recount request:  Filed last Friday, April 29, 2011. It will be interesting to see if this request gets any serious consideration from Burbank city officials.

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5 Responses to The recount: The City Clerk’s denial and a second recount request

  1. Jim C. Monday, May 2, 2011 at 8:14 pm #

    Fronnie,

    I have to laugh at Campos’ interpretation of Finley’s advice. He only knows what they’ve told him about the situation. The problem for them is that the request hadn’t been withdrawn when you three added on to it. In fact, Marciniw had specifically requested your participation and that it be held open until you could get down there, and the city complied.

    Also, by waiting until the evening of the council meeting to announce their rejection, the city deprived you three add-ons of any legal opportunity to file an injunction against them and get a hold-off on the council’s validation, pending a resolution of the recount issue. This of course was intentional.

    Their exclusionary calendar day interpretation is based upon court days, where weekends are included in the count and the only exemption is court holidays. But there is nothing in the BMC either that MANDATES a calendar day interpretation for this process. The council could have easily interpreted it the other way if they’d wanted to and ordered the recount to proceed. So could have Campos. They’re the boss, not Barlow.

    It’s interesting too that you were not allowed to view the counting process. This raises warning flags for sure. My theory is that from now on, for a number of bad reasons, this all-mail ballot system will result in nothing but extremely close elections where the victors will end up being the big-business establishment picks.

  2. Fronnie Monday, May 2, 2011 at 9:18 pm #

    Jim,

    We don’t really know exactly what Lowell Finley told Judy Alter to give her the impression that I could replace George Marciniw in the first recount request.

    In the response read by Margarita Campos at last Tuesday’s city council meeting, Finley reportedly said “I stated any voter may within 24 hours after a recount requested by another voter is terminated request a recount of ballots not recounted as a result of the original request.”

    My understanding of this is that Marciniw’s withdrawl kills the first recount. The three voters could have submitted a new recount request for Measure U ballots, which were not asked for in the first recount. The Burbank mail-in ballot system could still have been reviewed under this Measure U recount request.

    Then again, this response from Finley sounds like the recount was terminated while in progress. In the Burbank recount situation, it had not started.

  3. DixieFlyer Monday, May 2, 2011 at 10:50 pm #

    In following the above logic, since Zero ballots were recounted, all could have been recounted.

  4. Jim C. Tuesday, May 3, 2011 at 2:45 am #

    Yeah, if that’s what Finley told people, then even if the original request was terminated they still had signed up within the allowable 24 hours. So ought-oh– is that what Campos really cited? It works against her claim.

    The 24-hour law that Finley is talking about actually concerns a recount that’s already taking place. At this point, anyone can add to it and have other ballots counted or mechanical issues addressed. Myabe it can be (or has been) applied to other timeliness cases…?

    My big point in court would be that the city waived their right to reject the request because they had agreeably held it open before dropping Marciniw and then accepted the new names. Per his request. Their own BMC “protest” process does not forbid this, nor does it disallow a business-day countdown.

    The state’s does, but that’s not what Burbank is citing here as controlling law. Another ought-oh.

    I’d also make the point that there was a compelling public interest in having a recount over this close a vote, and that the city had failed to notify anyone “in a timely fashion” that they had rejected the petition. In fact, they waited over five days to do so, thus robbing voters of adequate redress prior to the council’s action.

    Next time I’m near UCLA I’m going to Shepardize these Election Codes to see if there’s any cases that revolve around this issue. Knowing Burbank’s zeal to play expensive games of hardball, I much doubt it. Most cities refuse to deal in this much bad faith towards their residents.

  5. Fronnie Tuesday, May 3, 2011 at 3:54 am #

    Dixie & Jim,

    I wonder about the zero ballots counted as well. Also in his letter, Marciniw stated that Judy Alter wanted to continue with the recount. It was a two-party recount request from the beginning — and only one party withdrew.

    Jim, I agree the Burbank city officials have made a lot of bad faith decisions in dealing with this recount request. These officials have a “them against us” attitude toward the residents they are supposed to be supporting.

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