More than three months have passed since the Nov. 8 election, but Oakland voters will need to wait a while longer to know who won the District 4 school board race.
Oakland Unified School District directors Mike Hutchinson and Nick Resnick met at a Superior Court hearing in downtown Oakland on Friday morning with their attorneys, Oakland City Clerk Asha Reed, and Deborah Fox, a lawyer representing the Alameda County Registrar of Voters, seeking a resolution to their ongoing legal dispute over the outcome of November’s District 4 school board race.
Resnick emerged as the winner of that race after the registrar released its final vote tally last Nov. 19, a victory that was subsequently certified by the county, and he has been participating in OUSD school board meetings in that role since last month. But on Dec. 28, the registrar released a statement saying it had made a mistake in tabulating ranked-choice votes on 235 “suspended ballots”—ballots where voters left their first, second, or third choices blank—resulting in an incorrect count. The registrar’s re-tallying of votes appeared to make Hutchinson the winner.
Hutchinson filed a petition to the Alameda County Superior Court in early January, asking the court to overturn the certified election result and name him the winner.
On Wednesday, the legal teams representing Hutchinson, Resnick, the city clerk, and the registrar of voters submitted a joint statement to the Superior Court indicating that they’d convened during the first week of February to conduct “an examination” and observe a tally of the 235 suspended ballots in question. According to the statement, that tally resulted in the same outcome previously reported independently by the registrar, indicating more votes on those ballots for Hutchinson.
At the beginning of Friday’s court hearing, Alameda County Superior Court Judge Brad Seligman announced that the next step in the process would be to set a date for a trial, where both parties can present the entirety of their evidence. But he first asked to hear from all parties—Resnick and Hutchinson’s legal teams, the city clerk, and the registrar’s legal counsel—on whether they believed the matter could be resolved without one.
Resnick’s attorney James Sutton led off, arguing that since the 235 suspended ballots only contained a skipped ranking in the first column, questions remained about how the registrar counted other ballots with blank second and third columns. Sutton said a “summary report” from the registrar detailing its entire vote-counting process would be required to reach a conclusion about the election’s outcome.
Beverly Grossman Palmer, the attorney representing Hutchinson, expressed frustration with the lack of expediency in resolving the matter and largely reiterated the argument put forward in Hutchinson’s petition: that the registrar’s previous errors in the count have been well documented and that subsequent tallies using the correct ranked-choice method have shown conclusively that Hutchinson won the contest.
“Mr. Sutton’s approach would significantly increase the delay and the depositions are completely unnecessary,” said Palmer. “I don’t think there is any basis for a drawn-out discovery process here.”
Reed agreed, saying that a trial and review of the ballots would not change the outcome of the registrar’s most recent tallies indicating that Hutchinson won the election.
“We’ve confirmed with the 235 ballots that there’s a perfect match (with what the registrar has already reported),” said Reed. An additional review, she said, “just does not advance us any closer to any kind of a question that is looming or to any kind of change in result.”
In addition to requesting more details about the registrar’s vote-counting method, Sutton expressed frustration with the county registrar, who he accused of being unresponsive to his multiple requests for more information about the vote-tallying process.
Resnick’s legal team filed multiple Public Records Act requests to the registrar asking to see all of the suspended ballots and other public records related to the District 4 school board election, in addition to sending a letter to Tim Dupuis, the registrar’s chief officer, listing their questions and concerns over how the decision was made to tabulate votes after the original count.
According to Sutton, the last time Dupuis communicated directly with Resnick or anyone on his legal team was in late December, immediately following the registrar’s admission that it had made an error in its initial vote tally. When Resnick asked Dupuis at that time if he’d lost the election, said Sutton, Dupuis said no, and promised to get back to Resnick on the matter. “He never did,” said Sutton.
“The registrar’s reluctance to talk to anyone, after promising that he would, has led to conspiracy theories that we are quashing down,” he added.
Deborah Fox, the attorney representing the registrar, said that the office is actively working to move forward with the Public Records Act requests and provide responses to Resnick’s team. Fox agreed to a deadline of next Wednesday, Feb. 15, for fulfilling the records request.
The registrar also promised to submit a summary report detailing its counting process and election findings to the court by next Friday, Feb. 17.
Before adjourning the hearing, Seligman set a trial date of March 16.
“As I understand it, we have somebody sitting on the board who can’t really vote. All those votes will be invalidated [if the election is overturned]… The people in this school district don’t have any representative right now, meaningfully,” said Seligman. “We need to move this forward.”