“This May Be the Case That Changes the Whole Country”: Shasta County Board Chair Hopes to Challenge New California Elections Law

October 18, 3:11 pm: We have corrected this article to specify that the board must have four out of five votes to enter into litigation.

In less than a month, Shasta County Registrar of Voters, Cathy Darling Allen, will administer the county’s next election. Until last week she was preparing under the assumption that she might have to use a hand-counting process that is now antiquated in California.

Since March 28 when the board voted to conduct a manual tally of elections, Darling Allen and her staff have worked to build such a process from the ground up. But on October 4, a new California bill,  AB 969, was signed into law. The bill makes hand-counting votes illegal in California elections with more than 1,000 registered voters, including the one next month.

Shasta County Board Chair Patrick Jones says the county won’t follow that law and will instead file legal action as needed to continue forward with a hand count. 

“We were expecting this,” Jones told Shasta Scout by phone last week. “Obviously we knew the legislature once it passed there we knew the governor would sign it. Our county counsel will give us an opinion on whether it will affect us. If it does affect us because we’re not grandfathered in, then it will be put to a vote of the board.”

“A lot of us are excited about going to court to present evidence,” Jones said, “because this may be the case that changes the entire country.”

Jones said he hopes to convince his fellow board members to ask a judge to temporarily stay the law to allow the November elections to continue with a hand count. That will give the board time to take more legal action, he says, in preparation to hopefully have legal access to hand count votes in Shasta County for the March 2024 presidential primary.

But in order to pursue this path Jones will need the support of at least three of his fellow board members as entering into litigation requires at least four of the board’s five votes.

Speaking to Shasta Scout by phone late last week, Supervisor Chris Kelstrom who usually votes in lock-step with Jones, said he could not comment on AB 969 because he hadn’t yet read the bill. Pressed as to what his next steps would be, Kelstrom responded that he should speak to the county’s legal counsel about the issue. 

Supervisor Kevin Crye, who is most often the board’s swing vote, said he’s uncertain about whether the California bill legally applies to Shasta County since the decision to hand count the vote was made long before AB 969 became law which might mean, he indicated, that the Shasta County decision could be “grandfathered in.” 

The text of the bill seems to clearly contradict this idea, with the wording indicating that “an elections official shall not conduct a manual vote count” regardless, it seems, of whether the board has voted for one.  

That clear wording appears to leave the board with only one possible area of leverage, refusing to provide the elected Darling Allen with the budget to purchase electronic tabulation machines. 

But Darling Allen already has machines that can electronically count ballots. On April 6, months after dumping Dominion voting machines, the board responded to legal warnings from disability advocates by purchasing a new more limited electronic voting system by Hart InterCivic. The ability to vote with machine assistance is required under federal civil rights law to provide accessible, independent, and private voting to those with disabilities, including vision problems. 

The board also purchased ballot scanners from Hart, in response to strong advice from the California Deputy Secretary of State who said that any state-certified hand-counting process that would be developed over the coming months to make Shasta County’s hand count legal, would require the serialization of all paper ballots in order to ensure that the count could be verified as accurate later. 

Those ballot scanners also serve as ballot counters, meaning the Registrar of Voters, Darling Allen, has what she needs to follow California state law, without any newly approved budget expenditure from the board. 

This fact angers Jones who told Shasta Scout the county’s contract with Hart for electronic scanners is, he thinks, “fraudulent.” 

“Clearly what we purchased,” Jones said, “is not what we got. . . . she [Darling Allen] has the ability to tabulate with equipment that’s unauthorized.”

But Jones’ complaints about fraudulent machine acquisition appear to be contradicted by the details of the Hart contract discussed by the Board during an April 6 meeting of the Shasta County Board of Supervisors. 

On that day, during questioning from both Jones and Crye, Deputy County Clerk and Registrar of Voters Joanna Francescut explained that board members had already been told by Deputy Secretary of State Susan Lapsley that the county would be required to scan and serialize ballots before they are counted as part of the state’s chain of custody requirements and regulations. 

Doing so will require using those scanning machines, Francescut continued, in a way that’s compliant with how the Secretary of State has certified them for use.

Speaking to the board that day, Darling Allen explained that the process would include numbering the ballots. 

“We will have to number [the ballots], serialize them, and capture a digital image of them prior to them being counted by hand,” Darling Allen told the board. “It is not hard to hack a hand-counting process, right? So by capturing an image on the front end, we can be assured that if there is any funny business at the tables that will be detected.”

The Hart system also includes counting software that can use those images to electronically tabulate the vote. That software is listed as a line item in the Hart contract as Verity Count ($13,500) and the software’s function is clearly described in Hart’s written presentation to the Board.

A unanimous vote by the Board on April 6 authorized Darling Allen to execute an agreement with Hart “for all the things that are necessary” for machine voting without asking for any parts of the contract to be removed.

Asked what steps he plans to take to respond to his concerns about “fraudulent” machines, Jones said he is “working it through” with the county’s Chief Executive Officer David Rickert, and acting County Counsel Gretchen Stuhr. 

Termination of the existing contract with Hart appears to be illegal with the signing of AB 969 since the bill states that a voting system contract cannot be terminated without another system already selected to replace it that has been approved by the Secretary of State.

Crye said he’s waiting to form an opinion on the voting machine issue until after he speaks with Rickert and Stuhr. “I do know,” he explained, “that the one thing we have is jurisdiction over her budget.” 

Supervisors Tim Garman and Mary Rickert, who often vote similarly, and often in opposition to Jones, form the remaining two votes on the board.

Garman told Shasta Scout that he has no interest in challenging the new law in court, saying his priorities are clear: reopening the third floor of the jail, responding to homelessness, and improving public safety and wildfire response. 

“We need to accept it and move on,” Garman said. “We tried. We lost. And we need to accept the results.”

What’s more, Garman said, it’s not the board’s decision whether to follow the law. 

“It’s [Darling Allen’s] decision if she’s going to follow the law or not or if she’s going to challenge the law,” Garman continued, “and I trust our Registrar of Voters.”

Supervisor Mary Rickert agrees.

“All I know,” Rickert said by phone Thursday, October 5, “is that Shasta County is a subdivision of the state . . .  As a law-abiding citizen, I respect (the law) and I think voters have to respect the law. If we don’t have law and order we have chaos. That troubles me because we’ve had enough chaos in the last four years.”

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