SPECIAL HOLIDAY REPORT: Vote recount could be next in McClintock/Brown race

When vote totals are certified next week in the 4th Congressional District race, it might not be the end, but just the end of the beginning.

The campaigns for both Democrat Charlie Brown and Republican Tom McClintock are prepared in case the county-certified vote total draws a corresponding legal action that could take weeks to resolve.

By state elections law, counties have to finish their vote counting by Dec. 2, and formally submit it to the California Secretary of State's office by Dec. 9.

The SOS's office then must certify the vote by Dec. 13.

And depending on what the results say on Dec. 2, that's when the legal action could begin.

As of 1:34 p.m. Wednesday, McClintock had a 1,576-vote lead on Brown, with final counts in most of the 4th District's nine counties completed.

But Brown campaign manager Todd Stenhouse said his campaign estimates that there are an additional 15,000 "undervote" ballots that haven't been counted.

On those ballots, the vote tabulation machine couldn't determine whether there was a valid vote for one congressional candidate or another.

For now, Stenhouse said, Brown's campaign has sent e-mails to supporters encouraging them to check with their county voter registrar's Web sites, which often list those ballots that weren't counted for some reason, such as an undervote.

"This is really a day-to-day endeavor at this point," Stenhouse said. "Once we get the certification, we'll know where we're at."

An attorney working for the McClintock campaign said that if the certified total shows McClintock as the winner, the most likely scenario would be for Brown's campaign to ask for a recount.

McClintock campaign attorney Ben Davidian said that appeal could be made to either the nine county registrars or the Secretary of State's office. Secretary of State Debra Bowen also has some latitude, he said, to call for a recount herself.

"If they decide to do a recount, the logical thing would be to also look at the undervotes," said Davidian, a former Fair Political Practices Commission executive director.

He said that in that scenario, both campaigns will also "mine" undervotes to find ballots that would appear to be in their favor.

But if Brown's campaign asks for a recount, it won't be cheap. Davidian said the campaign would not only have to pay legal fees to an attorney, but election worker costs for the recount, transportation costs, and other expenses.

A recount in all nine counties that are all or partially within the 4th District could take weeks to complete, and Davidian predicted it could be February before it's finally done.

In the meantime, he said, it's possible McClintock could be sworn into U.S.  Congress in January and even serve part of a term, though the recount could ultimately give Brown the victory.

The larger the margin is when the counties submit their vote, Davidian said, the longer the odds that a recount will show a different result.

"I don't blame Charlie Brown for trying to explore all the legal options open to him," he added.

Stenhouse said Wednesday that it was too soon to speculate what the campaign would do after the vote is certified.

"Obviously, there are options out there for both campaigns about what they want to do," he said. "We'll do whatever's necessary to ensure a fair and accurate vote."

One other provision of a close race is also at play.

By state elections law, any race where the initial Election Day totals has a difference between the top two finishers of less than one half of one percent is subject an automatic hand tally of 10 percent of the votes.

Kate Folmar, a spokeswoman for the Secretary of State's office, said the county registrars do that hand tally concurrently with processing outstanding ballots.

If the 10-percent tally shows a substantially different result from the Election Night result, she said, elections workers count an additional 5 percent until the result is the same or all the ballots are counted.

All such variations are reported to the state along with the final certified totals, Folmar said.