Borenstein: In tied Bay Area congressional race voters deserve a recount

The state Legislature has completely failed in its duty to protect the integrity of results in extremely close elections.

The political machinations we are witnessing in the stunning tied race for a South Bay congressional seat highlight why California’s election recount rules are nuts.

This should not be happening. The state Legislature has completely failed in its duty to protect the integrity of results in extremely close elections. Maybe this will spur them to action. Probably not.

For those just tuning in: In the District 16 race to replace retiring U.S. Rep. Anna Eshoo, final results show that former San Jose Mayor Sam Liccardo finished first in the March 5 primary with 38,489 votes, or 21.1% of the ballots cast.

The question for weeks had been who would capture second place and go on to the November general election runoff. Then we learned Wednesday about this amazing tie, with state Assemblyman Evan Low and Santa Clara County Supervisor Joe Simitian each receiving 30,249 votes, or 16.6% of the ballots cast.

This tie is unprecedented for a congressional race under California’s 13-year experiment with an open primary, in which normally the top two finishers, regardless of party, move on to the general election.

Unprecedented but not unanticipated.

It turns out that under state election law if there’s a tie for second place, both candidates advance to the general election runoff. But creating a three-way race undermines the key objective of a top-two head-to-head race in which someone must get a majority to win.

Instead, someone in this congressional race could win with a plurality as small as just over a third of the vote. Voters and the candidates deserve better. They deserve a recount of the March 5 results.

Chances are that retabulating the ballots would show it’s not actually a tie, and that only one of the candidates should advance to the general election.

With a primary election of this size, in which 11 candidates split 182,135 votes, chances are great that a recount — especially a hand recount — would find a ballot here or there that had been miscounted.

With a race this close, a recount should be automatic. In 23 states and Washington, D.C., recounts are automatically triggered if results are within a certain margin. But not California.

Our state has a recount provision in exceptionally close races, but it only applies to statewide races and is at the option of the governor — a formula ripe for political abuse.

In the South Bay congressional election, if candidates want a recount, they’ll have to pay for it — potentially as much as about $400,000 for a hand recount in this case. And, according to the Santa Clara County elections office, they have until 5 p.m. Tuesday, five days after Santa Clara and San Mateo counties certified their results, to decide.

That’s morally wrong. The integrity of our election results should not depend on a candidate’s ability or willingness to pay for a recount. Counting the vote is a government function; our government should spend the money to ensure it’s right.

Political strategy

The political strategizing this tie sets off is remarkable to think about. It’s possible that some or all of the three candidates will commission quick polling over this weekend to measure how they would be affected by the size of the field — two or three candidates — in a runoff.

Before the startling news of the tie, the question was whether Low or Simitian, whomever finished third by an expected razor-thin margin, would request a recount. But with the tie, and based on their statements Thursday, both seem grateful just to have reached the runoff.

My guess is that the person to watch now is Liccardo; he seems to have the most to gain by another tabulation of the ballots. Liccardo is the most moderate of the three and could risk his primary lead in a three-way runoff. It seems to be in his best interest to narrow the field to two — in other words to pay for a recount.

Conversely, Low seems to have the most to gain from preserving the tie. As the only gay or Asian candidate in the race and as the youngest and most progressive, he has a lot of ways to differentiate himself in a three-way race against two older White males who could divide more-moderate voters. And that could be especially true in the November election, when turnout will probably be much higher and possibly more left-leaning than the primary.

But whether to have a recount should not depend on the political calculus of any candidate. It should be a given in a race this close. This should not be about strategy, it should be about getting the count right.

Fix long overdue

For a decade now, most recently in 2022, we have editorialized on the need to fix the state’s recount law so that outcomes do not depend on a candidate’s wealth or perceived political advantage.

But that call has gone unheeded. It’s startling that liberal California lawmakers, who pride themselves on ballot access and integrity, continue to ignore this issue.

The concern, however, has not gone unnoticed at the local level. Santa Clara County, an outlier in the state, has an automatic recount policy for local races within the county in which the margin of victory is either less than 0.25% or less than 25 votes.

It’s a reasonable threshold, one that was implemented at, ironically, Simitian’s urging, but one that does not apply to congressional races over which the county does not have authority to set the rules.

The Santa Clara County recounts have presented stark examples of why they are needed statewide. In a 2016 San Jose City Council race, the automatic recount narrowed the margin of victory from 36 votes to 12. In the 2018 race for three seats on the San Jose-based Orchard School District board, the automatic recount changed the winner of the third seat.

In this congressional race, it’s unlikely that any candidate interested in a recount will show his hand until Tuesday in hopes that another candidate will step up first and plunk down the first installment payment.

But the bigger issue here is that we should never have reached this point. This is not a responsible approach to elections. Government leaders should care enough about the integrity of our ballot counting to ensure it’s precisely accurate. Recounts should be funded by the state.