Democrats in Tied San Jose Congressional Election Try to Stop the Recount

Six weeks after voters went to the polls on March 5, the candidates in congressional district 16 remain unknown. And now the leading Democrats have turned on each other with election-denying language and efforts to shut down recounts that would make a red-hatted MAGA guy blush.

In the wake of Anna Eshoo’s retirement after 34 years, the deep blue district became an irresistible target for local Democratic politicians. Eleven candidates ran and the three leading candidates have been former San Jose Mayor Sam Liccardo, Santa Clara County Supervisor Joe Simitian, and State Assemblymember Evan Low. And that’s how it came to rest—Liccardo came in first by about 8,300 votes (21.1%). And the other two came in second and — here’s where it gets hairy — tied for second. Out of over 182,135 votes cast—including 60,000 between the second- and third-place finishers—after the initial count, Simitian and Low ended up tied (16.6% each).

With California’s “jungle primary” system, the top two candidates go on to the November ballot, regardless of party. But here, with one leading vote-getter and two who are tied, all three would compete in November.

Unlike about half the states in the country, California does not offer automatic recounts for close races or even ties. So the only way to determine if there’s going to be a recount is for an outside party to request it, and then that party must pay for the recount.

Not everyone is pleased.

A lawyer steps forward

A lawyer named Jonathan Padilla—a lifelong Democrat who was a delegate for Joe Biden in 2020—requested a recount.

And the allegations coming out of this San Jose-based district—remember, all three candidates are Democrats—could have easily been at home in a Trump tweet back when that was still a thing.

A group called Count the Vote PAC has been established to support Padilla and advocate for a recount. According to one of the leaders of that PAC, who insisted on anonymity because of the hard feelings that are already taking root.

“I don’t know if you’ve ever been an accountant at a registrar’s office, especially a large one, but you’ve got hundreds of people tracking hundreds of thousands of ballots, and they do a great job. But human beings being human beings, mistakes are going to be made. And so our contention is that mistakes were inadvertently made, and a recount is going to show that this was not an exact tie, that one of these two people [Simitian or Low] won. And we’re doing this because we’ve got a philosophical belief. The entire election system in California is designed so that a winner receives 50 percent plus one. So that person can truly claim a mandate from the majority of the people who vote. In a primary election, you could have 10 people on the ballot. And if nobody gets 50 percent plus one, the top two finishers advance to a runoff election in November, with the intention that one of those two can get 50 percent plus one of the vote. Here, they’re trying to advance all three people to the runoff, then all of a sudden that completely changes the election strategy because you’re not trying to appeal to a majority audience. Now all you have to do is focus on 36, 38 percent of the electorate.”

What the Count the Vote PAC leader is suggesting is that Evan Low, the most progressive of the candidates, is hoping that in a three-person race, he’ll consolidate the progressive vote, while Liccardo and Simitian will have to split the moderate vote. Not to mention a young Chinese-American candidate (Low) facing off against two older white dudes. If the voters are 60% moderate and 40% progressive, Low might just sneak through.

That math has led to some unusual positions. When Low was in the Assembly, he supported Assembly Bill No. 44, which called for a “state-funded manual recount of all votes cast for a statewide office or a state ballot measure if the difference in the number of votes received is less than or equal to the lesser of 1,000 votes or 0.00015 of the number of all votes cast.”

That doesn’t apply to federal races, but his advocacy for the principle seems to show Low understands the value of getting the tally right. And Joe Simitian led the successful charge on the Board of Supervisors to have automatic recounts in Santa Clara County, where he currently serves as a supervisor. However, Santa Clara County does not have jurisdiction over federal elections; California does.

So the recount has begun. It started Monday and the accusations are flying.

One of the quirks of the process is that the citizen who requests the recount has to pay for it, and that means paying upfront, every day. The ballots are being counted in San Mateo and Santa Clara Counties. According to a source, Padilla was told that it’d cost about $12,000 a day in Santa Clara and $5000 a day in San Mateo (Santa Clara has 80% of the CD16 voters), and that each would take about 9 days. So that would have meant raising about $136,000. All of a sudden, after four days, San Mateo told Padilla that it was also charging $12,000 a day, even though Santa Clara had four times more voters. And that Padilla needed to provide the $7000 a day delta for the four days that had already elapsed — $28,000.

Padilla is a hardcore Democrat, but not completely unbiased. He supports Liccardo and worked for his previous campaigns. But asked why he stepped forward in a contentious party fight, he told California Globe, “I’m a firm believer that democracy is only as strong as those willing to defend it. This recount will only further the confidence of voters and reinforce that our system is designed to weather tumultuous conditions. I felt that standing up for these principles, even knowing I would be pummeled in the press and on social media, is worth it, knowing I can help strengthen the system for all.”

Why Big Labor Opposes State-Funded Recounts

One theory a consultant in the state shared with California Globe to explain why progressive “count every vote” California doesn’t have a provision for automatic recounts of close elections is the power of organized labor. The notion is that it’s to their benefit to maintain a high hurdle in which private individuals have to write massive checks to fund recounts. That way, if there’s a situation where a recount benefits labor, they can pay for it, since they have a statewide operation with tens of millions at their disposal. But if there’s a case where a non-favored candidate would benefit, he probably cannot afford it.

Indeed, the labor unions that have backed Low are firmly opposed to the recount, as is Rep. Ro Khanna. The Mercury News reported that “Assemblymember Evan Low tried to halt the recount in the Congressional District 16 race, with his lawyers sending a notice to the Santa Clara County Registrar of Voters asking them to stop it just days before it was set to begin.”

Low plays the Trump card

Low even played the Trump card. The letter his campaign sent demanding that the recount be stopped called the request for the count a “page right out of Trump’s political playbook.”

Low enjoys support from a usual suspects of progressives, including Khanna, and Low’s former colleagues in the State Assembly who’ve moved on to the House, Reps. Judy Chu and Mark Takano. His website is larded with endorsements from big labor, including California Labor Federation, San Mateo Labor Council, South Bay Labor Council, Amalgamated Transit Union, American Federation of State, County & Municipal Employees, and the International Brotherhood of Electrical Workers.

Low has leaned into his identity as a young Chinese-American in Silicon Valley and touted his credentials as a gay man looking to provide balance in Washington amid a House led by Mike Johnson, who he described as “the most homophobic speaker in generations.”

Low’s pugilistic personality has sometimes led him into fights he couldn’t win. As a newish Assemblyman, he tried to depose Assembly Speaker Anthony Rendon. When he failed, Rendon yanked Low’s chairmanship of the Committee on Business and Professions.

Says the Count the Vote source, “Ro Khanna and other far-left organizations are all in for Evan Low, and they’re the ones who are decrying the recount. I mean, Donald Trump is about denying election results, but Evan Low is attacking the recount as being ‘Trumpian.’ When all we’re doing is paying out of our own pocket to make sure all the votes are properly counted. And we don’t know what the result is going to show. We do think it’s highly likely the results will not show an exact tie.”

Rusty Hicks, state chairman of the California Democratic Party also came out against a recount, inexplicably claiming that counting votes somehow amounts to trying “to overturn the will of the voters.”

Count the Vote has hired a lawyer named Matthew Alvarez to represent the PAC at the recount. According to a source close to Alvarez, he’s already found over a dozen ballots that weren’t counted. They were filled out by people who weren’t sure if they were registered to vote, so they cast them as provisional while also filling out a form to register at their current address. There are also some where the ballots weren’t signed in both of the places where the voter is supposed to attest to being over 18 and a US citizen. But according to the source close to Alvarez, there’s case law where if one of the two is properly signed, then the box being unchecked is irrelevant. It sounds like they basically put those complicated votes aside on the presumption that they wouldn’t matter in the final tally. Now that there’s a tie, it’s unlikely that the uncounted pile holds precisely the same number of votes for Simitian and Low. If not, the tie is broken and Liccardo will face the one with more votes.

But it’s not just Alvarez in the room. The other two campaigns also have lawyers in the recount room.

And there’s cognitive dissonance. After years of accusing Republicans of voter suppression, lawyers for Democratic candidates are fighting for ballots to be excluded. And Dems like Low and Hicks find themselves in the unusual position of opposing the good government groups and the newspapers, as The Mercury News has also come out in favor of a recount, on both its editorial page and by columnist Daniel Borenstein.

For now, the count continues. Unless the courts hand Low a victory and stop counting votes, the process will probably conclude sometime next week. And it’s likely to be a head to head between the top two vote-getters. Just as the lawmakers of California intended.