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    First On

    Some 5th District Council Ballots May Have Had Candidate Choice Bubbles Completed By Someone Other Than Write-In Voters For Kell In Post-Election Processing Snafu

    Update: City Clerk Herrera Says Info Gathered At Present Indicates Limited Effect

    Part Time Worker May Have Used Black Marking Device, Not Easier To Spot Blue Marker...But Extent Still Uncertain

    Result May Have Boosted Kell's Current Vote Count...Who Still Trails Schipske By 169 Votes

    (June 23, 2006, updated 2:00 p.m.) -- In further developments to a story first reported by, LB City Clerk Larry Herrera has indicated that one or perhaps two boxes of 5th Council district ballots [high-side estimate roughly 200 ballots per box] are believed to include some ballots with candidate-choice bubbles filled-in by someone other than the voter during post-election processing using a black marking device (not just an easier to identify blue marking device as first reported in connection with some ballots for write-in incumbent Jackie Kell.

    Under state law, the candidate choice bubble must be filled in all races -- not just write-ins -- for a vote to count. A ballot with the candidate choice bubble left blank is legally deemed "blank voted" and is not to be counted (and isn't counted by LB's City Clerk.)

    Use of a black marking device (paralleling those in polling places) would make it harder though not necessarily impossible to spot candidate choice bubbles completed after the election by someone other than the voter, transforming some quantum of previously uncountable votes into votes for Kell, waging a write-in campaign to retain her office under term limits.

    Exactly how many ballots may be affected, if any, isn't known or knowable yet because the affected boxes are sealed and will remain so unless a recount is requested.

    "It happened with one, perhaps two boxes of ballots. It was done by a part-time worker, not a City Clerk office staffer. We spotted it. It was totally contrary to our instructions. We believe it was a communication error by the part-time worker and we're continuing to examine the circumstances," City Clerk Herrera told

    [Update June 23, 2 p.m.] City Clerk Herrera says information gathered at present indicates the issue appears very limited. [end update]

    Challenger Gerrie Schipske led Kell by 262 votes in the initial election night tally and continues to lead Kell by 169 votes in the final June 20 count of all provisional and absentee ballots. Ms. Schipske says she believes the post-election actions that, in effect, completed some write-in votes for Kell may explain much of that shift.

    City Clerk Herrera says one or perhaps two ballot boxes are involved [high side estimate: about 200 total ballots each] but the boxes are now sealed so exact numbers aren't knowable at present.

    A recount should show if the bubbles were marked during post-election processing using a blue marking device (easily distinguishable from black marking devices at polling places)...or with a black marking device...making it harder to tell the difference.

    Clerk Herrera indicated it should be fairly easy to tell the difference between [hypothetically] a black ball point pen marking a ballot from a felt-tip device if all other bubbles on the ballot are marked with one or the other. [One might also compare the written words to the ink in the oval...but we speculate that all of this may be easier said than done, inviting a scenario similar to Florida in 2000 when clerks examined ballots for so-called "hanging" or "pregnant" chads. It's the type of scenario that prompted switching to fill-in bubble ballots here...precisely to avoid such outcomes.]

    Ms. Schipske has declared victory in the race...but Kell has not conceded and has retained counsel, Bradley Hertz, who indicated to on June 20 that after the City Clerk certifies the election results, Kell can request a recount. A recount would give both parties a visible, individual inspection of each ballot and would show how many ballots have Kell's name written-in without completing the candidate choice bubble, now making them legally uncountable. Kell's lawyer indicates they're interested in examining these presently "blank voted" 5th district ballots...and only after knowing how many half-completed blank-voted ballots there are for Kell will a decision be made on whether to pursue a court challenge to exclusion of the half-completed blank-voted ballots.

    And now the recount raises another possibility: that some ballots already counted for Kell had their candidate choice bubbles completed by someone other than the voter...which may have boosted Kell's vote total beyond what it is now...trailing Schipske by 169 votes.

    Ms. Schipske has retained counsel, election law specialist Fred Woocher, and is preparing to take office. "It is clear that I won this election, despite counting errors being made in favor of my opponent. Additionally, it is clear from this manual random count that the voters of the 5th District understood how to cast a legal vote for a write in candidate by writing her name and filling in the bubble as evidenced by the fact that only 1 ballot containing Kellís name was rejected [in a 1% manual hand count routinely required in all elections] because the bubble was not filled in."

    In a 5th district recount, over 11,100 ballots will have to be examined by hand, one by one. Kell will pay the cost...unless the election outcome is changed in her favor (in which case taxpayers will pay the cost).

    Ms. Schipske's name was the only name on the ballot for the June 2006 runoff...with Vice Mayor/Councilwoman Kell waging a write-in campaign backed by LB's police and firefighter unions and endorsed by the Press-Telegram and Business Journal. Prior to the election, both print outlets carried pieces portraying Schipske as a perennial loser after waging unsuccessful campaigns for other offices. Mailers sent by the Kell campaign, as well as an independent expenditure by the LB Police Officers Ass'n, reminded voters that they had to fill in the candidate choice bubble for their write-in votes to count.

    Ms. Schipske's candidacy was boosted by the Teachers Association of Long Beach (TALB) simultaneously waging an campaign to oust School Board incumbent Jim Choura in a district roughly paralleling much of the 5th Council district. Ms. Schipske serves as TALB's General Counsel...and lawn signs for Schipske in TALB's distinctive logo were highly visible.

    Developing. Stay with for updated developments.

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