Porterville farmer David Shepard lost the race for state Senate District 16 by 20 votes and has filed for recounts in Tulare, Kings, Fresno and Kern Counties
PORTERVILLE – The closest state Senate race in California is headed for a recount.
Porterville area farmer David Shepard fell just 20 votes shy of defeating current State Senator Melissa Hurtado in the race to represent the newly formed Senate District 16, which includes portions of Tulare, Kings, Fresno and Kern Counties. And while Hurtado declared victory following Kern County’s final tally on Dec. 8, Shepard announced his plan to file for a recount on Dec. 13 with the following statement posted to his social media accounts: “Yesterday afternoon, we officially filed the necessary paperwork with the county elections offices in each of the four Senate District 16 counties needed to trigger a recount. Given some procedural irregularities that our campaign has observed, I believe that a recount is necessary. This is a historically close election and it is imperative that every legally cast vote be counted.”
Shepard isn’t exaggerating how tight the race is. When the Fresno County Board of Supervisors became the last county to certify its election on Dec. 13, Shepard led by just 20 votes throughout SD 16, the closest state Senate election in more than 100 years, according to Shepard’s campaign. Shepard thinks he may find the remaining votes in Fresno and Kern Counties, where he claims there were issues with the count. The certified results show Shepard lost by nearly 10,000 votes in Kern County but won by more than 2,000 votes in Fresno County, 2,700 in Tulare County and 5,100 in Kings County.
The more recent issue was in Fresno County, where Shepard’s campaign says they personally helped correct ballots incorrectly filed out by voters through a process called “curing” that were not counted. Roughly 20 state’s, including California, use the process to correct mistakes by voters filling out their ballot, such as forgetting to sign it, leaving verification information blank or other technical issues. If the ballots are not “cured” then the elections office cannot include them in the count. Shepard’s team said they were told by the Fresno County Registrar of Voters the deadline to cure ballots had been extended but claim they were not counted because they were not cured by the original deadline on Dec. 5. Fresno County’s signature verification and unsigned ballot letters stated voters had until Dec. 5 to return letters sent to them for a current signature.
“Until this matter is further clarified from Fresno County, my resolve will remain the same,” Shepard wrote in a released statement on Dec. 10.
Fresno County Clerk and Registrar of Voters James Kus said by law, the deadline to submit the final count to the Secretary of State’s Office is two days prior to the 30-day deadline to certify the election, which was on Dec. 6. He said they cut off the count at 5 p.m. and began submitting paperwork to the state by 1 p.m. on Dec. 6. Kus said the Shepard campaign did not submit the 11 verification letters they obtained until 3 p.m. and later so they could not legally be included in the count.
Kus went on to confirm that Shepard did properly file paperwork for a recount and that Fresno County will begin their recount Tuesday, Dec. 20 at 9 a.m.
Kern Co. questioned
Kern County was the last of the four counties within SD 16 to finish processing ballots. Kings County completed its counts on Dec. 1, followed by Tulare County on Dec. 2, according to the Secretary of State’s Office. Fresno County did not finish processing ballots until Dec. 8. Shepard has been critical of Kern County’s process, such as their lack of planning and inaccurate estimates on updates to the public. Shepard claims Kern County’s only sorting machine broke down on Nov. 14 and did not come back online until more than a day later.
On Nov. 18, Shepard said Kern County reported there were 38,174 ballots remaining to be counted, a very specific number, but a few days later reported it had processed more than 45,000 ballots. On Nov. 30, Shepard said Kern County reported there were 2,776 ballots remaining to be processed and had processed 2,000 votes that day, leaving the total remaining ballots processed at 720. Yet on Dec. 2, with 720 votes outstanding, they processed over 1,900 ballots, more than double the amount reported to the general public. Shepard was leading in the polls after election night until last week as the votes slowly ticked in Hurtado’s favor as the results trickled out of Kern County. The lead was as small as 12 votes as of Dec. 6.
“This raises questions about the procedures Kern County Elections chooses to implement,” Shepard said in a Dec. 10 statement. “Given the 136,894 ballots cast, the small margin, unaccounted cured ballots, and clear procedural issues in Kern, even the slightest of errors could be consequential.”
During an election recap presented to the Kern County Board of Supervisors on Dec. 13, Kern County Auditor-Controller Mary Bedard said there was nothing wrong with the amount of time or overall accuracy of the count. She said this year’s election was complicated by a record 17 local ballot measures and a record 90% of the vote being cast by mail, both of which slowed the process compared to previous elections.
Despite the complications, Bedard pointed out that a week after the election, Kern had counted a higher percent of its votes than Sacramento County and two weeks after the election, had counted the same percent, 97% of its vote, as Fresno County, while San Luis Obispo was at just 83%.
Supervisor Phillip Peters asked Bedard to explain how an estimate could be as specific as 38,174 yet have an actual count of more than 45,000. “To be off by over 13,000 is pretty significant. I find that concerning,” he said.
She reminded the supervisors that the updates on ballot processing after election night are estimates and are not meant to be accurate numbers. The estimates are based on the average number of ballots that fit into a holding tray on shelves. If some of the trays include a lot of crumpled or folded ballots, less would fit into a tray, meaning the count in each tray could be off by 100 or so, pushing the overall estimates over by thousands. For example, after election day, Alameda County estimated their ballots at 182,120 but was actually over 290,000. In terms of ballots near the end of the count, Bedard said those estimates do not include challenged ballots, those returned without a signature or where the signature does not appear to match the one on file. The elections office then contacts the voter and requests they provide a good signature to verify its authenticity. On Nov. 30, estimated unprocessed ballots totaled 720 but the list of challenged ballots were well over 2,000.
“Campaigns were fully aware that should those ballots be cured, the number of ballots still to be processed would be higher than the estimated 720,” said Beddard, who has overseen elections in Kern County for the last 10 years.
Bedard also said Shepard’s claims that Kern County only had one voting machine was false. She said Kern County Elections operates eight tabulation machines but just one sorting machine. The behemoth sorting machine takes up a quarter of the election office’s available space for mail-in ballots and the space has not been increased for 30 years, in which time Kern County has double the number of voters.
Vote by mail ballots have to be processed through the sorter at least three times, each taking several hours, to verify if there is signature on the envelope, if the signature is a match or must be challenged and then finally into precincts. Once the ballots are extracted from envelopes, volunteers check them for tears or anything that might prevent them from going through the tabulation machines. She said the sorter was down for several hours but that staff continued to process ballots without it until it was repaired.
“While it was inconvenient and did interrupt the flow for a time, it was not a major issue as shown by the fact we were able to reach the 97% of the vote count just a few days later ahead of both Ventura and Sacramento,” Bedard said.
Handful of votes uncounted
After completing the process to certify the election to the Secretary of State, Bedard said her office did become aware of the possibility that some eligible ballots may not have been included in the tally. After a thorough investigation on Dec. 9, Kern County Elections determined that 10 eligible ballots were inadvertently omitted from the final tally, five of which were for the SD 16 race. Bedard has petitioned the courts to allow Kern County to include those ballots in a supplemental certification.
“My office has conducted an analysis of the ballots contained in this group. The analysis revealed that there are no contests in which the final result will be altered by the inclusion of these ballots,” Bedard said. “Voters have a right to be concerned about an error of this type and we are reviewing our processes to ensure that it never happens again. We are trying to be as open and transparent as we possibly can while ensuring that every eligible vote is counted.”
Peters said he would be concerned by that information as a member of the public, especially in a historically close race.
“The fact that even one vote might not get counted is alarming and the fact that five of them were in an extremely tight race, it just further erodes the confidence in elections for the public,” Peters said.
Supervisor David Couch suggested rounding all estimates to avoid giving the public the impression there is a more exact number by combining ballots which have been run through the process once but not yet processed with stacks of ballots waiting for their first run through the machine.
The board asked if there was anything the election office needed to avoid similar issues in the future. Beddard said her office has been working out of the same space for the last 300 years even though the number of votes to be counted have doubled in that time. More space could allow the county room to purchase a second sorting machine, or just more thoroughly organize the votes waiting to be processed. She said a request to add more space to the vote by mail processing center was denied by county administration in 2021.
“Our biggest problem at this point is space,” said Bedard, who is retiring at the end of this month. “Talk to the auditor-controller elect about her plans. We are very short on staffing, we’re always short on staffing, it’s stressful during election time, but just space and equipment.”