With money put up for recount request, Congressional District 16 race is officially back on

The recount will start Monday morning.

A recount of votes cast in the Congressional District 16 race appears to be full steam ahead after Santa Clara County received the money Friday to start the arduous process that could break the tie for second place if it turns out any March primary ballots were miscounted.

After a month of vote counting, Assemblymember Evan Low and Santa Clara County Supervisor Joe Simitian last week ended in a 30,249-to-30,249 tie for second behind former San Jose Mayor Sam Liccardo.

All three appeared to be heading to the November ballot — a first for a congressional race in California since the state switched to a top-two open primary system in 2012. But earlier this week, two individuals filed paperwork in Santa Clara and San Mateo counties requesting a recount of the votes.

District 16 includes parts of both counties and stretches from Los Gatos in the south to Pacifica in the north, though about 81% of the district is within Santa Clara County.

Until Friday, questions remained about whether either person — former San Mateo County Supervisor candidate Dan Stegink and 2020 Biden Delegate and former Liccardo mayoral campaign staffer Jonathan Padilla — would be able to put up the cash.

But those questions were answered when the Santa Clara County Registrar of Voters received a $12,000 deposit from Padilla’s attorney on Friday afternoon.

Padilla had originally requested a manual recount, but examining all 182,135 ballots by hand was expected to cost upwards of $400,000 in the two counties combined.

Registrar of Voters spokesperson Michael Borja said the request was changed to a machine recount, which means ballots will be re-scanned starting Monday morning. Borja said that additional payments will be required on a “day-to-day basis” and that it could cost more than the $84,200 originally estimated if Padilla and his lawyers follow through on their original request to have other materials examined, such as vote by mail and provisional ballot envelopes.

The San Mateo County Registration and Elections Division could not be reached by deadline.

On the same day as the deposit, three attorneys for Low — Graham Wilson, Emma Olson Sharkey and Aaron M. Mukerjee of the Elias Law Group — sent a letter to San Mateo County Chief Elections Officer Mark Church asking him to address the “critical question” of whether money will be refunded if the results change.

If a recount in the CD16 race leads to a change in the election result, will the person who requested the recount be refunded? The law explicitly states that refunds are not permitted in this unique situation where there is a tie and both tied candidates are already advancing.… pic.twitter.com/oMPL4b5ulN

— Evan Low (@Evan_Low) April 12, 2024

“In some circumstances, depending on the results, the voter may be entitled to have their funds returned at the conclusion of the recount,” the attorneys wrote. “It is essential that all interested parties understand your position on when funds may be returned in the very unusual current circumstances, where two candidates in the election received the exact same number of votes.”

The recount filing requires the requester to name the candidate on whose behalf they are requesting it — typically one of the candidates whose votes are being scrutinized. In his filing, Padilla said he had not communicated or coordinated with any of the campaigns but that he was making the request on behalf of Low.

Low’s campaign has vehemently denied it was being done on the assemblymember’s behalf. Low’s lawyers argue in the letter that the requester should not be eligible for a refund if the results change. They interpret “change” in the law to mean a candidate wouldn’t have appeared on the general election ballot if a recount hadn’t taken place. In this case, a recount could only knock one candidate off of the ballot.

“The law explicitly states that refunds are not permitted in this unique situation where there is a tie and both tied candidates are already advancing,” Low posted on social media on Friday afternoon. “Issuing a refund could be an illegal gift of public funds.”

Low and Simitian’s campaign declined to comment on the deposit and Liccardo’s campaign could not immediately be reached for comment.