Money & Politics | Daily Report

Harris photo Steve Rhodes/FlickrSteve Cooley and Kamala Harris

It was the tightest California state election in 20 years – a contest that seesawed back and forth for more than three weeks after the polls closed.

In the end, Democrat Kamala Harris edged out Republican Steve Cooley in the 2010 vote for state attorney general – and Cooley, after thinking it over, declined to spend the time and money to try and overturn the race via a recount.

The story of the attorney general's race illustrates just how close a modern election must be before a campaign demands a statewide recount, even though the law seemingly provides an opportunity to stall the results indefinitely while ballots are re-examined.

The race wasn’t supposed to be a squeaker. Harris was district attorney of liberal San Francisco and an opponent of the death penalty. Cooley was district attorney of Los Angeles, a law-and-order prosecutor who said he would be tough on crime. Many wrote off Harris’ chances to become California’s top cop.

But Harris proved an attractive candidate, especially on Cooley’s home turf in Southern California. The night the polls closed, the race was too close for the secretary of state to call.

Nevertheless, a confident Cooley strode to the microphone at his election night party at the Beverly Hilton Hotel and said, "I’m declaring victory."

But as counting resumed the following day, the Republican fell behind his Democratic rival by about 9,000 votes. After that, results began yo-yoing.

By the weekend, Cooley was back in the lead, ahead by 22,800 votes, according to news accounts. But more than 2 million votes remained uncounted, most of them vote-by-mail ballots. On Nov. 8, Cooley’s lead surged to 44,000 votes, then dropped to only 19,000 as more votes were tallied, the San Bernardino Sun reported.

By then, election law experts for both candidates began considering the possibility of a recount.

On Nov. 12, Harris pulled back into the lead, ahead by 3,600 votes with 500,000 still uncounted, according to a running tally the Los Angeles Times maintained.

As the count continued, nerves began to fray.

Cooley’s lawyers accused the Los Angeles election office of not following proper procedures in determining whether voters were legally registered before counting their votes.

Harris’ camp fired back that Cooley was attempting to disqualify “as many provisional ballots as possible,” as the Fresno Bee summarized the dispute.

The count remained extraordinarily close, but Harris never lost the lead. On Nov. 24, 22 days after the election, Cooley conceded. In the end, Harris’ victory margin was 74,157 votes out of 8.8 million cast, or 0.8 percent.

It was “nowhere near” close enough to consider a recount, said Charles Bell, the Sacramento election lawyer who advised Cooley. Bell said he doesn’t begin thinking about a recount if the margin exceeds 0.1 percent.

“I thought it was worth looking at if you were within 2,000 to 3,000 votes,” he said. “Then, the constraints would have been resource constraints.”

Cooley had enough volunteers to staff election offices for a statewide recount, he said, but money would have been an issue.

Recounts in local races typically cost $3,000 or $4,000 per day, but the price tag is going up, as counties also bill campaigns for computer experts, security and other expenses.

Harris’ campaign was getting estimates of $500,000 just to recount Los Angeles County.

The other factor that discourages recounts: Because of electoral reforms imposed after the debacle in Florida in the race between Bush and Gore, there are a lot fewer votes that might flip via a recount.

That 2000 Florida contest became famous for its disputes over “hanging chads,” bits of paper on voters’ ballot punch cards that caused vote-counting machines to miscount.

In the post-Florida reforms, punch card systems were banned; the new systems have far fewer ballots in which a voter’s intention is subject to dispute.

As a result, modern recounts focus mainly on provisional ballots – ones submitted at the polls by voters who didn’t get a requested mail-in ballot, or who claim they were wrongly dropped from the rolls – and on ballots that were improperly marked, says James Sutton, lawyer for the Harris campaign.

“One thing in play in a recount is people who screwed up on how they marked their ballots – I’m always shocked by what people do,” Sutton said.

“You or I go in and want to vote for Joe Smith and inadvertently mark Mary Jones – we might know we can go up and ask for a new ballot.

“But a lot of people just cross it out and initial it or circle it.

“Those stray marks on a ballot – the machine typically counts them wrong or doesn’t count them at all.”

Another issue that makes campaigns leery of recalls: There are no guarantees that votes will flip your candidate's way.

“Recounts don’t change much,” says legislative historian Tony Quinn. He recalled a recount last year after the Democratic primary in the 38^th state Senate District in Southern California. Former Assemblyman Juan Vargas edged out Chula Vista Assemblywoman Mary Salas by 22 votes, or 0.2 percent.

Salas demanded a recount, but abandoned it after three days. Vargas had picked up 12 additional votes as a result of the recount.