Lawsuit asks court to order recount of Bilbray-Busby race

By: DAVE DOWNEY - Staff Writer

SAN DIEGO -- A pair of voters filed suit in San Diego Superior Court on Monday, declaring that the June 6 primary was conducted illegally and demanding that election officials recount the 158,000 ballots cast in the congressional race that pitted Republican Brian Bilbray against Democrat Francine Busby.

The contest was held to pick a temporary replacement -- through the remainder of this year -- for now-imprisoned Randy "Duke" Cunningham, the former representative who pleaded guilty in late November to taking more than $2.4 million in bribes in exchange for steering tens of millions in government contracts to local firms.

Bilbray received nearly half the votes, while Busby garnered 45 percent. On June 13, Bilbray was sworn into office as the new representative for the 50th Congressional District.

Filed on behalf of voters Barbara Gail Jacobson of San Diego and Lillian M. Ritt of Rancho Santa Fe, both of whom live in the district, the lawsuit maintains that the results cannot be trusted because poll workers took voting machines home with them before election day in violation of state guidelines. The suit asks that a court order 100 percent of ballots cast in the race be recounted by hand and establish a reasonable cost for the recount.

Secretary of state spokeswoman Nghia Nguyen said her office had not seen the suit and declined to comment on the alleged violation.

Mikel Haas, the county's registrar of voters, said, "If I believed it was a violation of anything, I wouldn't have done it. It's as simple as that."

Haas added that the general practice in California is to require those who request recounts to bear the cost, rather than bill taxpayers. Jacobson had earlier requested a recount in the Bilbray-Busby race and was told that it would cost $120,000 to $150,000 -- as much as $1 per vote. The suit suggests that figure was out of line given Orange County's recent handling of a recount at a cost of 14 cents a vote.

Haas denied that the cost was exorbitant. He said the county wanted $6,000 upfront and would have charged more as the recounting process continued. He said the $120,000 to $150,000 figure was a rough estimate and not necessarily what Jacobson would have been charged.

The suit lists Haas and Bilbray as defendants.

Bilbray said in a telephone interview Monday he was not concerned about the suit.

"They have the right to do what they want. I'm just trying to represent the people of the 50th," Bilbray said. "I don't count the votes. The county counts them."

Busby, the one who stands to gain if a recount is ordered and it changes results, said in a telephone interview that she is not involved in the recount campaign.

"I personally don't have any reason to question the outcome of the election," she said.

But Busby said she supported the goal of those who brought the suit.

"I support any citizen in their efforts to make certain that our voting processes are open, fair and transparent, and that they function in a way that all the citizens can have confidence in them and trust them," Busby said. "We all know that voting is the basis for our democracy."

Seattle election attorney Paul Lehto, who filed suit on behalf of the 50th District voters, said county voters cannot be confident of the June 6 results. Lehto said that's because the county allowed both electronic touch-screen machines and the optical-scan machines that read paper ballots to be stored in "unsecured locations, such as poll workers' car trunks and residential garages."

Haas said the practice was secure because the machines were sealed. But Lehto said the seals were not tamper-proof.

Haas said earlier that the practice goes back decades in San Diego County and helps the registrar avoid the logistical nightmare of delivering machines to 1,646 polling places early on election morning.

Lehto appeared unimpressed.

"It's not that hard to do," he said in an interview Monday. "I mean, the Postal Service manages to deliver mail to every single house every single day."

Lehto said that taking precautions is worth the effort because "all you need is one disk for about 90 seconds or two minutes" to rig the results.

"It is naive to assume that no one would ever cheat in an election," he said. "And you only need one person to throw an election, you don't need a grand conspiracy."

Velvet Revolution, an umbrella organization that represents about 100 voters rights groups, is raising money to pay for the suit.

- Contact staff writer Dave Downey at (760) 740-5442 or ddowney@nctimes.com.