California has a long history of excruciatingly close state elections – contests for high office decided by a couple of percentage points or less.
But in 160 years of electoral photo finishes, nobody has ever demanded a recount of the votes in a statewide race, historians say.
We’re just lucky, say strategists who were deployed for a prospective recount in California’s latest nail biter, Democrat Kamala Harris’ razor-thin victory in the attorney general’s race in November over Republican Steve Cooley.
In gearing up, Harris’ team noted a loophole in California’s recount law that they say a losing campaign could leverage to stall the final result in a tight race for as long as a year.
If the loophole were exploited in a presidential race in which California’s electoral votes were pivotal – a scenario like Florida in 2000 – the result could be slow-motion political chaos, they say.
“There have been a number of extremely close presidential races in California history,” said Averell "Ace" Smith, the strategist who researched the recount law for Harris. “If there is another one, California could be in a state of electoral disaster for up to a year.”
At issue is a strategy of serial recounts that Harris’ team believes would be permissible under the state elections code.
A veteran Republican elections law expert disputes its interpretation, but a spokeswoman for Secretary of State Debra Bowen agreed with the Harris team’s reading of the law.
Smith calls the recount strategy “pinballing.”
As written, California law allows any voter to ask for a recount in any election, and limit the request to a single county. When that first recount is complete, any voter has 24 hours to request another one, the law says.
Thus, according to this interpretation, a candidate who trails in a tight statewide race could ask for a single-county recount. If that recount didn’t change the outcome, the candidate could ask for a recount in another county – and then another.
The process seemingly could go on, one county at a time, until the candidate found enough electoral mistakes to flip the results – or until recounts were completed in all 58 California counties. Of course, if the recount succeeded in changing the result, the opposing campaign could request recounts of its own, starting up the process again.
The only real constraint is money. Whoever asks for a recount must pay for it, and a recount in a single county can cost as much as $500,000.
Given that recounting a single county’s votes can take a week, delays would be substantial.
James Sutton, a San Francisco elections law expert who advised the Harris campaign, said the election code doesn’t set deadlines for completing a statewide recount. “It says the registrars shall do the recount expeditiously, but there’s no statutory time constraint,” Sutton said. “So in theory, if you do a true pinball, it could last for a year.”
Charles Bell, the Sacramento lawyer who advised the Cooley campaign on election law issues, said he was familiar with the 24-hour request provision of the law. But he said he does not believe it permits recounts in counties that weren’t subject to the original recount request.
“I have always interpreted that to mean precincts within the same county for which the original request applied and that weren’t recounted pursuant to the original request,” he wrote in an e-mail.
But experts in the secretary of state’s office read the law to permit the sort of serial recount strategy described by the Harris strategists, according to e-mails from spokeswoman Shannan Velayas.
A pinball strategy would most likely be employed in a future presidential contest, Smith said; that’s where the political stakes are highest, and where campaigns would have the money to pursue it.
Historically, presidential campaigns have made for the closest California races of all. Of 40 presidential elections in the Golden State, two were decided by between 1 and 2 percentage points and nine more were decided by less than 1 point, records show.
The tightest of all was in 1912, when former President Teddy Roosevelt took California by 174 votes, 0.03 percent, but lost the national election to Democrat Woodrow Wilson.
By contrast, when the 2000 presidential race came down to results from Florida, Republican George W. Bush wound up edging Democrat Al Gore in that state by 0.01 percent of the vote.
Before the Florida contest was over, the campaigns had gone to court amidst charges of electoral improprieties and snafus. In the end, the U.S. Supreme Court declared Bush the winner.
If control of the White House someday comes down to the results from California, the losing presidential campaign might well be able to use the pinball recount strategy to stall the final national result past Inauguration Day. That could mean the president would be chosen by the House of Representatives and not by the Electoral College.
By then, of course, the dispute would also be fought out in court.
“If it gets to the point where they’ve pinballed it, and we’ve done 14 counties and it’s February, somebody would sue,” said Sutton, the San Francisco lawyer.
Powerful competing interests would be in play – voters have a fundamental right to have their ballots counted properly, but the nation has an abiding need for an orderly transfer of presidential power. In the Florida case, the high court said the nation’s need for an orderly succession trumped individual voting rights, Sutton noted.
The pinball strategy would play out differently in a recount for governor or other state office.
State law requires the secretary of state to certify a winner of every state office by Dec. 3. If a recount reverses the certified result, the incumbent would be turned out of office and the new winner seated in his place. That’s never happened in a statewide race. But in 1980, a Republican was declared the winner of a tight Assembly race in Stockton and sworn into office. The following month he was unseated when a recount tilted the race to Democrat Pat Johnston, according to news accounts.
It’s not so simple to fix the potential problem of pinballing, the strategists said. County election officers rightly value correct results, and not speed, in vote counting. And they might well resist a statute that set a hard deadline for completing recounts, fearing that if they are rushed they might make errors.
Smith says the best fix would be to take the politics out of recounts by requiring them by law in extremely tight races, and having the state – not campaigns – foot the bill.