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San Francisco Chronicle

Judge voids results of Berkeley measure on medical pot

Henry K. Lee, Chronicle Staff Writer

September 28, 2007

An Alameda County judge has voided election results for a failed 2004 Berkeley medical marijuana measure, ordering it returned to the ballot next year because county election officials failed to hand over data from voting machines, attorneys in the case said Thursday.

Superior Court Judge Winifred Smith also said county officials should pay attorneys' fees and reimburse a medical marijuana group more than $22,000 for the costs it incurred during a disputed recount shortly after the November 2004 election.

In her ruling Tuesday, Smith said county officials had failed to retrieve backup data from electronic voting machines, logs of activity on the machines and other records as she had specifically ordered.

Instead, the county ignored the request and returned the devices to their manufacturer, Diebold Election Systems, after the measure's advocates had sued the county seeking access to the data, the judge said.

"Why the county did so is anybody's guess," the judge wrote. "But the result is absolutely certain: The information on those machines is lost completely."

Smith ordered the Berkeley measure returned to the ballot in November 2008 but said she first wanted to review the exact text of it. By Oct. 19, city officials must provide the court with any minor changes to the measure.

"Local election officials have been trying to reassure the public that their own oversight will protect the integrity of the ballot," said Gregory Luke, an attorney for Americans for Safe Access, a medical marijuana advocacy group that sued the county shortly after the election.

"Now we see that not only are the machines vulnerable, but some election officials cannot be counted on to protect the vote."

Richard Winnie, Alameda County counsel, said the mistakes had been made during a turbulent period in which "the method of handling electronic voting data was very much undecided."

"We've learned a lot in four years," Winnie said, including "what data should be used in a recount. Our practices are much different today."

In April, the judge ruled that the county had violated the state Constitution and election law in rejecting the plaintiffs' request for the data. The country registrar has argued in court papers that the data weren't relevant.

The plaintiffs were backers of Measure R, which would have allowed medical marijuana clubs to move into retail areas in Berkeley without public hearings and would have erased limits on the amount of cannabis that patients could have.

According to the county's certified results, the measure lost, 25,167 to 24,976. The initiative lost again in a recount.

Earlier this year, the plaintiffs visited a warehouse in Plano, Texas, to examine the Diebold machines that the county had returned to the company in the middle of litigation without preserving the data inside them.

Only 20 of the 482 machines used in the election still contained the data being sought, and copies of the votes from 96 percent of the machines had been destroyed, the judge said.

E-mail Henry K. Lee at hlee@sfchronicle.com.

This article appeared on page B - 1 of the San Francisco Chronicle

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