On May 1st, Super Tuesday finally concluded for District 16, as Joe Simitian conceded defeat after recounts for Santa Clara and San Mateo turned a stunning tie to a narrow victory for Evan Low, by five votes. To understand why this process took nearly two months, long past the end of other Super Tuesday primaries, we must go back to what was supposed to be the end on April 4th.
An Exact Tie
30,249. That number may seem insignificant, but on April 4th, it was certified as the vote counts of both Assembly District 26 Representative Evan Low and County Supervisor for Santa Clara Joe Simitian in the Super Tuesday California District 16 Primary. As a reminder to our election-following readers, California elections, except for the presidential, run on a top two candidates open primary system. That means that the government of California runs a primary in March open to all candidates, but only the top two candidates make it into the general election in November. This is why an exact tie for second place is so important; Mayor of San Jose, Sam Liccardo won first place with 38,489 votes, but the question was who would oppose him in November.
Luckily, California has legal contingencies for this exact situation. Section 8142 of the California Election Code refers to ties, and subsection B3 says explicitly, “If only one candidate receives the highest number of votes cast but there is a tie vote among two or more candidates receiving the second highest number of votes cast, each of those second-place candidates shall be a candidate at the ensuing general election along with the candidate receiving the highest number of votes cast, regardless of whether there are more candidates at the general election than prescribed by this article [referring to the only-two-candidates law].”
The Recount and the Conspiracies
The answer is that Liccardo would face both Low and Simitian in the general election, provided the votes stay unchanged. On April 8th, a poll was conducted by unknown sources via McGuire Research looking into who D16 voters preferred going into the general election, with evidence pointing both to Liccardo (for a question asking the strength of support for Liccardo) and Simitian (for including a question of what endorsements would be most convincing for voters, made up of Simitian endorsers) conducting the poll. A day later, Jonathan Padilla, 2020 and 2024 Biden Delegate to the DNC and Liccardo Campaign finance director in 2014, made a recount request on April 9th, the fifth and final day such a move was allowed. The request was interesting: despite being written on Low’s behalf (the requester had to write a candidate they were representing), the Assembly member denied requesting a recount and specified that he opposed a recount.
Alongside this request was the creation of the “Count the Vote” PAC, filed in San Francisco on the same day by James Sutton, one of Padilla’s attorneys, which became the group funding each day of the recount. The funding itself was a source of conflict as well. Padilla initially registered for a manual recount, which could have cost upwards of $400,000 for the requester, but changed it to a machine recount three days later, after the deadline, which Low tried to use to block the recount. Once it was changed to machine voting, it might have only taken $170,000 in total, but San Mateo raised its price by $7,000 per day three days in, potentially making it cost approximately$220,000 on Padilla and CTV PAC. Unlike most recounts, this would not be refundable, as CEC Section 15624 specifies that only recounts that add candidates to the general election get refunds, not ones that remove candidates.
Low spokesperson Whitney Larsen declared the recount “a page right out of Trump’s political playbook using dirty tricks to attack democracy and subvert the will of the voters,” and House Member from California’s 17th district Ro Khanna, who Low managed the campaign of, sided with Low. Padilla made similar comparisons in reverse: “Donald Trump represents an existential threat to democracy and believes in not counting votes, as we saw on election night in 2020. Why other Democrats don’t believe in counting votes and ensuring that the will of the people is transparently reflected confuses me,” he said
The PAC worried people like current D16 House Representative Anna Eshoo, who said on the 19th, “What I do not have confidence in is where the money deposited in this super PAC is coming from.” The suspicious nature of the recount funding has garnered the attention of the Federal Election Commission after Government Attorneys Association President Max Zarzana alleged Liccardo to be “illegally coordinating with a newly-formed dark money Super PAC.” In reference to lawsuits the Mayor faced for withholding public records and using a private email to hide CA Public Records Act requestable information resulting in half a million dollars paid out, Zarzana said Liccardo was “known for backroom deals.”
Motivations
Liccardo’s campaign, either on its own or with help from the April 8th poll, could likely work out the fact that a two-man race would be easier for them to win than an election with three. Low and Simitian, possibly recognizing Liccardo’s interest in splitting them up and the fact that they are equally likely to lose the recount, both oppose it in favor of all three going into the general.
Millions of dollars have already gone into this primary; in addition to recount funding, each candidate left in the race has spent over a million dollars, with Low at 1.4 million, Simitian at 1.7, and Liccardo ahead with two million dollars spent on this election. Other candidates typically spent in the tens to hundreds of thousands on their campaigns, with the exception of Peter Dixon, who spent nearly three million dollars for less than 15,000 votes.
This is notable in the context of an almost entirely Democratic election. The top Republican candidate, Peter Ohtaki, got just 13% of the vote, and Republican candidates overall made up roughly 20% of the vote in total. That means candidates at large have spent well over 9 million dollars to decide which Democrat gets the seat, in which they would likely vote almost identical to each other, similar to the Democrats who ran for California Senate. From a party perspective, seeing as a Democrat takes the position no matter what, it might be best to allow all three candidates to run for the general election, to give Democrats the most options possible.
53-year-old Sam Liccardo and 71-year-old Joe Simitian are generally considered to be moderate figures in the race, with Liccardo being majorly funded by law firms, real estate firms, and electronics companies and the relatively more left-wing Simitian being endorsed by Representative Eshoo. Evan Low, youngest in the race at 40, received a large amount of his donations from trade unions and is generally considered the most liberal candidate in the race currently.
The Real Threats to Democracy
Both sides of the argument over recount or three-way race ignore the actual bad indicators for democracy this race has shown: the duration and the voting system. In the 2020 November Elections, a wait of five days after election day for the results had the country in uproar and Republicans declaring election fraud. This primary, which, in 2020, only had ⅔ of the votes cast in the general election of that year, took a month for results and almost another month for the end of a recount. If vote counting like this were to happen in a race of more importance, such as the presidential or senate election, it would give the worst actors in politics much more leeway to claim voter fraud.
More than that, this election has shown how broken the top two candidates system really is. The margins these candidates won by are tiny—Liccardo, Low, and Simitian all represent only around 54% of cast ballots, a number that drops to 37% without Simitian. That means that 63% of the electorate who voted in the primary will have to change their votes in the general election. The general elections only allow voters to choose between the top candidates. The combination of the First-past-the-post (FPTP) system of primaries and top-two-only system of generals conspire to extract such undemocratic outcomes where usually large minorities–and in cases like these, sometimes majorities–have their voices left unheard, even if they may have preferred a different candidate to the top two had they known their candidate would not win.
Conclusion and Solutions
This election showed how every vote counts, but also how they fundamentally don’t. People who would have favored Simitian or Low but didn’t vote for them must be kicking themselves that they didn’t, but the tens of thousands who voted for people other than the three candidates will have to settle for them in the general election. This election is quite possibly one of the strongest arguments in America for alternative methods of voting other than FPTP, such as Ranked Choice Voting (RCV).
Under an RCV system, every voter casts their ballot with a ranking of candidates instead of a vote for one to be disregarded if they lose. On election day, 1st place votes are counted. If no majority is reached, any candidates who don’t receive enough votes above a certain threshold of 1st place votes are knocked out, and the votes cast for them go to their highest-ranked choice still in the race (e.g. if a voter’s top 3 choices are knocked out, the 4th choice candidate has that vote added to their total). Repeat this process by knocking out the lowest-scoring candidate until a majority is reached. This system would ensure the people in elected offices better represent the will of the voters, and fully circumvents the need for an open primary, saving the government and voters a lot of money, and the need for most recounts, as elections are much more likely to be decisive.
In addition, the government clearly needs to allocate more funding, manpower, and tech to process votes in a timely manner. The fact that it took an entire month to process under 200,000 votes in a country that regularly processes elections with voting counts in the tens to hundreds of millions is a failure that needs to be corrected by November unless we would like a more magnified form of the election debacle of 2020. One possible solution is a kind of ‘jury duty, but for elections’, if good salaries are not enough to convince people to count votes.
As for the recount and general election, it is important, now more evidently than ever, to vote. Even if the voting system is broken, it is still the voting system, and the first rule of any voting system is that those who don’t vote are guaranteed to have their voices disregarded. Also important is being aware of the millions of dollars going into every part of this election, and even possibly opposing such large campaign spending, if one is so inclined. One of the largest differences that will come from the recount is the rhetoric shift for the candidates having to target their opposition, whoever that turns out to be.
