Countersuit Filed Against County of Sacramento for Overcharge of Recount Cigarette Tax Proposition
Suit Claims County Refused to Count Ballots and Imposed Arbitrary Costs for Recount
A supporter of Proposition 29 (a 2012 statewide ballot measure to increase the cigarette tax that failed by 0.2 percent), Heilig requested a recount of the ballot measure and was asked by the County to cover the estimated costs of the recount pursuant to state law. After Heilig paid the County of Sacramento more than $17,000 for a two-day recount, the county months later demanded an additional payment of nearly $7,500. Heilig is represented by Michael Sweet and Jack Praetzellis of Fox Rothschild LLP.
Dr. John Maa, a San Francisco surgeon who was a proponent of Proposition 29 and the original requestor of the statewide recount, worked with Heilig in supervising the Sacramento County recount. Dr. Maa stated “the right to vote implies that the entire electoral process – including recounts – will be fair and transparent. This countersuit aims to protect election integrity by ensuring that votes properly cast are counted, and that a voter who requests a recount does not have arbitrary costs imposed on him or her. The right to vote is the most fundamental of Constitutional rights. Legislation or an administrative order is clearly needed to control recount costs and keep the doors of democracy open for voters and candidates.”
Proposition 29 was narrowly defeated, losing by less than 0.25 percent of the total ballots cast, a margin that would have triggered an automatic taxpayer funded recount in many other U.S. States. Per Elections Code Section 15620, et seq., Heilig and Maa pursued a recount within four California counties, including Sacramento County, with the understanding that the counties would charge for the cost of recounts “pursuant to in an equitable, fair, and regular manner.” More than $250,000 was spent on this first statewide recount, which would pave the way for the Proposition 37 recount in 2012, and the Controller’s race recount in 2014.
Sacramento County demanded $13,965 on the first day of the recount, and requested payment of $3,064 for each subsequent day of the recount. Upon paying more than $17,000 to Sacramento County, the audit was undertaken to understand why the Sacramento Statement of the Vote included voter turnouts well over 100% (near 140% in some), mathematical errors and other discrepancies.
Secretary of State Debra Bowen certified the Prop 29 election, however the final Sacramento Statement of the Vote suggested that 180,000 ballots remained to be counted in Sacramento County. Approximately two months later, Sacramento County invoiced an additional $35,650 for the recount, without explanation. A revised invoice was later sent to Heilig, seeking $7,496 rather than the initial $35,650.
The countersuit alleges the total invoice results in approximately $1.97 per vote cost for the recount, while recounts in other counties cost $0.29 to $1.18 per ballot. In addition, the countersuit alleges that the County of Sacramento treated similarly situated voters requesting a recount in a different manner. Specifically, a voter required a recount of the Rancho Cordova City Council vote that lasted three days and involved two recount boards. The final recount cost was approximately $24,000, and a refund was paid to the requestor for overpayment.
The countersuit also alleges that Sacramento County failed to count 407 properly submitted absentee ballots from the November 2012 Presidential election months after the election, and that the Registrar of Voters for the County of Sacramento refuses to count the ballots and instead has plans to destroy them on September 6, 2014.