Loophole could allow double voting in California Primary Election

Contra Costa County - There is a loophole that potentially allows California voters to cast two ballots and some local elections officials say that they are powerless to stop it.

Hundreds of voters have attempted to vote more than once because the state’s automated system sends a new vote-by-mail ballot if personal information or party preference changes.

The issue has gone largely unaddressed for nearly four years, opening the door to potential voter fraud. The California Secretary of State has ignored calls to fix the flaw, leaving the responsibility up to counties to police thousands of votes.

“I do not trust this state and the voting practices,” Alameda County resident Rene McClure said. “I was anticipating it and it happened.”

Like many California voters, McClure wanted the ease of voting from her home but Alameda County Elections sent her a second vote-by-mail ballot after she applied for a California Real I.D., changed the spelling of her name and changed her political party preference.

“They’re counting me as two people,” she said.

Election safeguards are supposed to stop or flag the original ballot, but it’s hard to catch because the state gives voters the choice to vote-by-mail or at the polls and switch between the two. It’s increasingly murky during a primary election when nonpartisan voters are allowed to obtain a partisan ballot, if they ask for one.

“The unintended consequence of that is there are a lot of ballots floating around out there,” Contra Costa County’s assistant registrar Scott Konopasek said. 

Those extra ballots allow someone to mail-in one of their ballots and then surrender the blank ballot at the polls and cast a second vote on Election Day. Poll workers can see who received a vote-by-mail ballot but have no idea if it has been counted or if a voter received more than one.

In the 2016 primary, Contra Costa County crosschecked Election Day voters with mail-in ballots and discovered 113 cases of double voting. Public records requests show Santa Clara County found 76 and Marin County about 19 votes counted twice. Other counties were either slow to respond or found similar problems long after Election Day was over.

“However remote the possibility is, it is possible. And because you know it’s possible, you have to check.” Konopasek said. “It’s a vulnerability that could easily be closed.”

County elections officials pushed for a fix after the 2016 election, suggesting anyone who brings a mail-in ballot to the polls on Election Day vote provisionally. That means those votes would be set aside, checked, their eligibility verified, and then counted after Election Day.

However, Secretary of State Alex Padilla said that it’s against the law and told KTVU he stands behind the open process.

“The first one that comes back is the one that gets counted,” Padilla said. “That same voter tries to return another ballot by mail or in person, that second one’s not going to get counted, only the first.”

But that’s not entirely true. KTVU found some slip through the cracks without an easy way for poll workers to verify if a vote-by-mail ballot has been received and counted.

That has raised questions about election integrity and the overall process by groups like the Public Interest Legal Foundation, a conservative nonprofit law firm aimed at improving elections.

“Every which-way you try to automate something in an election system or what you believe is making it easier to vote, you’re creating more opportunity for mistakes and fraud to occur,” spokesman Logan Churchwell said. “Anyone that says that the system works fine, they’re essentially saying that voter fraud is the cost of doing democracy and that’s unacceptable in the year 2020.”

After KTVU aired the original story, a couple from Pleasant Hill explained they had changed their party preference and then received seven ballots in the mail between the two of them. While they only plan to submit one ballot each, it made them wonder how different ballots were being triggered.

"I was getting pretty angry when I got the second incorrect ballot," Michael Tworek said. "I'm going on a trip this weekend so my frustration was am I going to lose my opportunity to vote?"

It's not a partisan issue but a matter of fairness and election security. While the samll number of double votes probably won't affect a presidential candidate, it could affect local races or issues.

Some Bay Area counties including Napa, San Mateo and Santa Clara are part of the new Voters Choice Act program which requires real-time computer access and can determine who has already voted. But in most counties, the vulnerability remains.

After repeat questions by local elections officials to the state, Padilla’s office sent a letter this month telling county elections officials to handle any issues themselves and figure out a way to electronically mark or separate out voters who request multiple ballots.

Some counties argue it’s just too costly, too difficult or creates more room for error. Instead, they’re left being reactive and trying to expose double voting long after the election is over and then turn violators over to prosecutors.

“If they know it’s going on and they let it happen, that’s wrong,” McClure said. “If they are aware of this problem existing, then they need to take care of it – not brush it under the rug.”

This story was updated on February 25, 2020

Brooks Jarosz is an investigative reporter for KTVU. Email Brooks at brooks.jarosz@foxtv.com and follow himon Twitter @BrooksKTVU