A special report from campaign counsel Catharine Baker

To guard against fraudulent votes or improper counting, the Harmer campaign established a comprehensive ballot-integrity operation. As the volunteer attorney who oversaw it, I want to share some of what our volunteers observed on Election Day and during the post-election canvass.

Election Day

On Election Day, trained volunteer poll watchers monitored targeted polling stations throughout the district from the time they opened to the late hours after they closed. At most of the polling places we observed, few ballot integrity issues arose. But several polling places experienced serious and persistent problems involving vote-by-mail ballots ("VBMs," or absentee ballots) delivered at the polls. At several polling locations, poll workers consistently failed to check that the VBMs had the proper, legally required voter signatures before placing those ballots in the ballot boxes. Poll workers at several polling stations also consistently failed to ensure that individuals delivering multiple VBMs had signed the required certification identifying themselves and attesting that they met the legal requirements for delivering another person's ballot.

Post-Election Counting

From the minute the registrars' offices opened on November 3 until the final ballot was counted weeks later, volunteer observers monitored every stage of the canvass process in each of the four counties. The most significant issue was the verification of signatures on VBMs and provisional ballots cast on Election Day. Verification is the process by which registrar staff determined whether these ballots contained the signatures required by law. A comparison of the verification process in the different CD-11 counties is telling.

Alameda County

In Alameda County, a registrar staff person working alone at a computer terminal took typically one or two seconds to compare four VBM signatures at a time to the voters' registration signatures. If the reviewer determined that the signature on a VBM contained just one characteristic similar to the registration signature, the ballot was approved and counted. If the reviewer determined the signatures did not match, the reviewer or another staff person would later review the signatures again. A similar process was followed for provisional ballots.

Observers were allowed to monitor the review of VBMs and provisional ballots while standing a foot or two behind the staff person. Yet observers were prohibited from challenging or even questioning whether VBM or provisional ballots contained the signatures required by law.

As a result, when we observed the following in Alameda County, we were prohibited from challenging whether the ballots should be counted:

Mismatched signatures. There were VBM and provisional ballot signatures that either clearly did not match the registration signatures or for which the match was so questionable that another staff member should have reviewed them before the ballot was approved.
Missing registration card signatures. Staff approved VBM and provisional ballots for which no registration signature was on file for comparison. The voter was simply sent a notice to return a signature card in the future.
Missing voter signatures. Some VBMs that did not have the signature of the voter on them were counted nonetheless if they had the signature of another voter registered at the same street address. This also happened in Santa Clara County. Registrar supervisors in Alameda County deny such ballots were approved by staff, but our observers repeatedly witnessed otherwise.

Contra Costa County

A similar signature verification process was in place in Contra Costa County, but there, for much of the review, volunteers were only able to observe signature verification from behind a glass wall several feet away from staff, making it impossible to see clearly the signatures being compared.

San Joaquin County

In San Joaquin County, two staff (not just one) working in consultation with each other compared one set (not four sets) of VBM signatures at a time while a representative from each campaign observed from directly behind them. Staff were required to find three points of similarity (not just one) between ballot and registration signatures before approving a ballot. The signatures remained visible to both staff and campaign observers for as long as any one of them needed time to compare the signatures. If any one registrar staff member or campaign observer felt a challenge to a signature was appropriate, the ballot was set aside and reconsidered later by additional staff, including the registrar himself, in the presence of the campaign observers. The registrar made the final determinations on challenges when the staff and campaign observers could not agree, which rarely happened.

Santa Clara County

A similar process was in place in Santa Clara County, although there, our volunteers witnessed staff approving ballots that lacked the voter's signature, as in Alameda County.

Even with the challenge process, Santa Clara and San Joaquin Counties completed their canvassing within the time required under California law.

Why These Observations Matter

In my view, David Harmer lost this election primarily because of VBM and provisional ballots cast at the polls on Election Day, and the problems we observed with these ballots are serious. Signatures are required by law on VBMs to ensure that the voter whose VBM is cast is the one who completed that ballot and that the person who turns in another voter's VBM is authorized to do so. If poll workers do not ensure that the required signatures are on the VBMs delivered at the polls, we voters lose an important line of defense against voter fraud.

Furthermore, if private citizens, be they campaign volunteers or just concerned individuals, are unable to question or challenge government determinations about ballot verification during the canvass, we the voters lose yet another line of defense against voter fraud and improperly counted votes.

Warmest regards,

Catharine Baker

Catharine Baker is an attorney with Morrison & Foerster LLP's San Francisco office, where she practices general commercial litigation. She took a leave of absence to volunteer full-time on David Harmer's congressional campaign as pro bono counsel and manager of special projects. Catharine received her B.A. in political science from the University of Chicago and her J.D. from U.C. Berkeley, after which she clerked for a Reagan judicial appointee in the Central District of California. Prior to attending law school, Catharine was the Senior Legislative Aide to Congressman Sonny Bono in Washington, DC. She is a former Abraham Lincoln Fellow with the Claremont Institute for Statesmanship and Public Policy. Catharine is a native Californian who lives in Dublin with her husband and 7-year-old twins.