A voter places a completed ballot in the vote my mail ballot box for the Nov. 8 election at the Oakland Public Library on November 7, 2022.  Credit: Amir Aziz

Following revelations that the Alameda County Registrar of Voters miscounted ballots for several ranked-choice races in the November election, the Board of Supervisors voted in January to have the registrar conduct recounts of four races—including the narrowly decided Oakland mayor’s race.

But over two months later, the recounts haven’t been conducted, and the registrar of voters told the supervisors Tuesday that it’s almost assured they never will.

“We haven’t found a direction to proceed for the hand count for the three remaining races,” Registrar of Voters Tim Dupuis told the supervisors during their board meeting.

In several reports to the supervisors in recent weeks, Dupuis has said he believes there’s no legal authority that will allow him to recount ballots for the Oakland mayor’s race and two close races in San Leandro where ranked choice was also used.

At Tuesday’s meeting, Alameda County Counsel Donna Zeigler agreed, telling the supervisors the registrar doesn’t have legal authority to conduct a recount. State law, according to Zeigler, says that the registrar could only conduct a recount if he has “reasonable cause to believe that ballots [have been miscounted]” and only after he makes a finding he is unable to explain the election results.

According to Dupuis, there is no question about the outcome of the Oakland mayor’s race. The mistake that was made tabulating ranked choice ballots didn’t change the outcome, and there’s no evidence that a full recount of the 128,000 ballots would produce a different result. A full hand recount would also be very expensive, costing potentially hundreds of thousands of dollars.

Ziegler added that the Board of Supervisors can’t order Dupuis to conduct a recount. State law forbids the board from directing the elections official, in this case the registrar, to carry out duties of his that are defined by the state of California. “If there’s a specific duty or obligation vested in that official, your board can’t divest that individual of that authority to have them do a certain thing,” she said.

Had the supervisors wanted to demand a recount, they would have needed to ask the district attorney to file a petition in court to seek a judge’s order.

Registrar’s mistake fueled mistrust and months of uncertainty

In December, Dupuis issued a press release admitting his team used the wrong settings on elections software to tabulate ranked-choice votes. Dupuis was alerted to the problem by a pro-ranked choice voting advocacy group that ran the county’s ballot data through their own system and discovered the error. When the registrar re-ran the ballot data using the proper settings, it found that the winner in one race—Oakland’s D4 school board seat—had been incorrectly certified. The outcomes of all the other ranked choice races weren’t affected by the error, however.

Still, the registrar’s mistake fueled distrust in the results and boosted calls by some groups in Oakland for a recount in the mayor’s race.

Sheng Thao defeated Loren Taylor by 677 votes in a race with 128,000 ballots cast. Taylor’s supporters, including the NAACP, called for a recount in December—before the registrar’s mistakes were known—in part because of Thao’s narrow margin of victory, and because some voters may have been confused by the ranked-choice ballot. But the NAACP declined to pay for the recount, as required under state law, so the registrar never began the process.

Responding to concerns about the mistakes made by the registrar, in early January Supervisor Keith Carson drafted a proposal to have the registrar retain a qualified person to carry out a recount of the Oakland mayor’s race and other ranked choice contests. The supervisors unanimously approved the plan on Jan. 9.

Dupuis told the supervisors on March 7 that he failed to identify anyone with experience who would agree to take on the recount.

In the meantime, the outcome in Oakland’s D4 school board race had become the subject of a lawsuit in superior court. Mike Hutchinson, who would have won the race had the registrar used the correct algorithm to conduct the ranked-choice runoff, petitioned a judge in January to have the incorrect results thrown out so that he could be sworn in. On March 6, a judge sided with Hutchinson. The judge also ruled that the Registrar of Voters must pay for the recount of a small number of ballots that were at the center of the dispute in that race.

Dupuis told the supervisors Tuesday that the judge’s decision resolves any lingering questions about the OUSD D4 race.

Registrar says 2024 elections are a priority while Thao’s critics talk of a recall

Rather than pursue any more recounts or reexaminations of the flawed November election, Dupuis said his priority right now is preparing for the upcoming 2024 elections.

“We’re about two months behind but we do need to get started on it,” said Dupuis. “To do any other activities beyond that, these are the same resources I would need for a hand tally. It would be taking away the talent I need for preparation for the 2024 election.”

While Dupuis says there’s no remaining reason to doubt the outcome of the Nov. 2022 election, some county residents remain skeptical. Multiple members of the local Republican Party said during public comment at Tuesday’s supervisor’s meeting that they still believe a recount is necessary, especially for the Oakland mayor’s race, and that they would also like to see Oakland and the county scrap ranked-choice voting.

“[Ranked choice voting] is proven to be a failure,” said Jackie Cota, a member of the Alameda County Republican Party. “We hope in the interest of transparency the county acknowledges the error made in the Oakland mayoral race and moves ahead with a recount.”

Other individuals and groups like the NAACP that sought a recount in the mayor’s race have recently been floating the idea of pursuing a recall election to oust Thao, especially after the mayor’s decision to fire Police Chief LeRonne Armstrong, who was found to have mishandled two officer misconduct investigations.

Before joining The Oaklandside as News Editor, Darwin BondGraham was a freelance investigative reporter covering police and prosecutorial misconduct. He has reported on gun violence for The Guardian and was a staff writer for the East Bay Express. He holds a doctorate in sociology from UC Santa Barbara and was the co-recipient of the George Polk Award for local reporting in 2017. He is also the co-author of The Riders Come Out at Night, a book examining the Oakland Police Department's history of corruption and reform.