Challenged ballots and a potential recount. Here’s how the Congressional District 16 race could play out

For weeks, the political drama surrounding the stunningly close congressional District 16 race in California has captivated onlookers with its razor-thin margins and the almost daily swing in the leading candidate for the coveted second spot on the November ballot.

Three weeks after Election Day, questions linger about the remaining primary ballots and how a potential recount might play out in the district that includes parts of Santa Clara and San Mateo counties.

Outgoing Santa Clara County Supervisor Joe Simitian and state Assemblymember Evan Low are battling for the second spot on the general election ballot in the race to replace retiring U.S. Rep. Anna Eshoo. Former San Jose Mayor Sam Liccardo, who leads both candidates by roughly 8,000 votes, already has secured a spot.

With every mail-in ballot tallied, all that remains is several hundred ballots that were challenged during the count.

As of Tuesday, Santa Clara County had 207 such ballots in District 16, the registrar of voters office said. San Mateo County did not respond to multiple requests about how many remaining challenged ballots fall into the congressional district, but its website listed 525 challenged ballots countywide Tuesday.

So what are challenged ballots, and how will they play a role in a race where the two candidates are separated by two votes?

A ballot can be challenged for several reasons but often are flagged when signatures don’t match those on file with the registrar’s office. Santa Clara County estimates about 4,000 to 5,000 ballots are challenged in primary elections, and 6,000 to 7,000 in general elections. Of those, about 40% to 60% are typically fixed in a process called “curing,” in which the county sends voters with challenged ballots three notifications and allows them to verify their signatures through fax, mail or in person, Santa Clara County Registrar of Voters spokesperson Michael Borja said.

In California, campaigns also can reach out to voters directly to help them fix their challenged ballots. Borja said it costs $132 to purchase the initial roster of challenged ballots and $66 for every update. He confirmed that both Simitian’s and Low’s campaigns have purchased the databases.

Matthew Alvarez, a partner at Rutan and Tucker who specializes in election law, said an abundance of data regarding where candidates did well gives campaigns a good sense of which way the challenged ballots swing.

“You get those names, you run it through your data, and you see where those voters are, where they live,” Alvarez said. “If they’re in a precinct that went 60% for Evan, than statistically Evan’s going to assume it’s one of his voters.”

Voters have until April 2 to remedy their ballots. The election will be certified on April 12.

With the race so close and so few votes left to count, Alvarez said it’s likely to head to a recount — dragging out the suspense of the eventual second place finisher. Recounts typically are sought when there’s a 0.05% margin or less between two candidates, he said.

Twenty-three states and Washington, D.C., have an automatic recount trigger, according to the National Conference of State Legislatures. California isn’t one of them.

After election results are certified early next month, Low or Simitian would have five days to request a recount, and the candidate requesting it must pay for it, Alvarez said.

Borja said the cost of a recount in District 16 would vary depending on whether a manual or machine recount was requested. He said a manual recount would take approximately 10 days and cost $32,000 per day for a total of $320,000, while re-scanning the ballots would take about five days at a cost of $16,840 per day for a total of $84,200. San Mateo County did not respond to a request for a recount estimate.

Alvarez said the requester likely will ask for a manual recount.

“That’s where you notice stuff,” he said. For example, “that’s where you notice that someone tried to erase Evan’s name, but the machine counted it as a vote for Evan.”

Once a recount starts, Alvarez said it must continue daily until the entire district is counted. That means if a candidate runs out of funds to keep the recount going, the count is over and void. If a new winner is named after the recount, then the counties will reimburse the candidate who requested it.

As of the last reporting deadline on Feb. 14, Simitian’s campaign had $588,745 in the bank, while Low had $345,371. Candidates are allowed to set up recount committees to raise additional funds, though they are subject to contribution limits.

If the recount ends in a tie, California election law dictates that both Simitian and Low would advance to the general election alongside Liccardo, Alvarez said.

“It would be a rematch of the primary, and then someone could win a congressional seat with just a plurality and not a majority of the vote,” he said.