Updated: May 6
Read the letter here.
Requirements Regarding Compensation of Vote Counters Associated Costs
I am an attorney working with the Lex Rex Institute, a nonprofit organization dedicated to government accountability and operation within Constitutional limitations. I understand that Shasta County (the “County” and/or “Shasta”) has been exploring options for conducing a manual count of ballots cast in its elections and that there is some confusion about the cost of switching to such a system, especially in regard to the increased employment costs of the additional manpower needed to conduct a manual count.
Specifically, this letter seeks to clarify whether the costs expressed in the PowerPoint presentation presented by Cathy Darling Allen, County Clerk/Registrar of Voters (the “ROV”) at the meeting of the County’s Board of Supervisors on April 25, 2023 are mandatory costs or whether a less expensive option might be available and legally feasible. A true and correct copy of this PowerPoint presentation is attached hereto for your reference as EXHIBIT “A.” To be clear, neither I nor the Lex Rex Institute have been retained by the County and, as such, this letter does not constitute legal advice.
A. Feasibility of Using Unpaid Volunteer Staff to Count Votes.
For the purposes of the California Elections Code, officials counting votes are considered members of the precinct board, just as any other poll worker would be. See, e.g. Cal. Elec. Code § 15276 (“The precinct board members shall each keep a tally sheet”). Accordingly, the statutes governing the compensation of poll workers counting votes do not differ from those pertaining to the compensation of other poll workers, except and unless in the specific instances wherein the Elections Code explicitly provides otherwise. Regarding compensation, to my knowledge, the ROV has cited only two relevant provisions. The first of these provisions, Cal. Elec. Code § 12310,  was addressed in my previous letter dated March 30, 2023, a true and correct copy of which is attached hereto for your reference as EXHIBIT “B.” In that letter, I explained that while the statute is technically ambiguous and remains legally untested, it does not appear to foreclose the possibility of hiring volunteer poll workers. This statute has never been interpreted by any court to prohibit the use of volunteer workers and, while it is not impossible that a court could find that it prohibits volunteers, the ruling would certainly be a novel interpretation, and would likely come as surprising news to the dozens of California counties currently conducting elections using volunteer poll workers.
Prior to drafting this letter, my staff contacted the offices of the County Clerk/Registrar of Voters for each of the fifty eight (58) California counties (excluding Shasta) and inquired whether each county currently permits volunteers to serve as members of its precinct boards. The results of these phone calls are published for your reference in EXHIBIT “C” to this letter. In summary, of the forty seven (47) counties who answered the call, fifteen (15) counties, fully a quarter of all counties in California, responded that they allowed volunteers.
The second statute the ROV cites in support of the idea that vote counters must be paid is Cal. Elec. Code § 15103, which applies solely to those responsible for counting “vote by mail ballots,”  and for which the same issues apply as to § 12310.
B. Feasibility and Cost of Stipends below the Figure Cited by the ROV.
Even if the County does elect to compensate all of its employees hired for the purpose of counting votes, the numbers presented by the ROV appear to be substantially inflated. The ROV’s breakdown specifies the cost of hiring employees paid a stipend compared against the cost of employees paid at minimum wage rates. However, in the ROV’s report, differences between the two rates is relatively low – less than 20% in virtually every case. In reality, if the County seeks to maximally save on costs, the expense of stipend employees would be considerably lower than the minimum wage option. In fact, the California Secretary of State’s own website provides a recommended stipend as low as $65  – a fraction of the $217.50 cost of minimum wage for the standard fourteen (14) hour election day (before factoring in any added costs from overtime and payroll tax). Of the counties that do not permit volunteer poll workers, twenty (20) told us that they pay stipends to their poll workers (the rest use existing county staff or compensate on an hourly basis). See Ex. “C” (reflecting my staff’s phone calls to each county’s registrar). Of these twenty (20) counties, nineteen (19) pay stipends that, if extrapolated out on an hourly basis for the duration of the election day, would be below the California minimum wage, with some as low as $6.43 per hour. Only one county, San Francisco, paid a stipend rate that would be above the California minimum wage. See Ex. “C.”
C. The ROV’s Number of Required New Employees Appears to Be Inflated.
It is unclear where or how the ROV derived its figures for the numbers of new employees required for a transition to manual counting. A more thorough financial breakdown of these numbers and the reasons supporting them (e.g. estimates of how long it takes a given number of workers to count a given number of votes) would be helpful to this end. However, a projection based on the number of votes cast in the past three County elections, assuming a very conservative count rate of fifty (50) ballots per hour by teams of four, yields a required number of employees much lower than that provided by the ROV. Linda Rantz from Cause of America has been kind enough to do a more detailed analysis of these projections, and her report is attached hereto for your reference as EXHIBIT “D.”
In light of these considerations, the costs associated with switching to manual counting is likely substantially lower than has previously been projected and should be reevaluated.
Very truly yours,
Alexander Haberbush, Esq.
Lex Rex Institute
“Each member of a precinct board shall receive compensation from the governing body of the jurisdiction. This sum shall be paid out of the treasury of the jurisdiction in which the election is held. The inspector may receive more compensation than the other members of the precinct board. The additional compensation to the inspector is for services rendered in securing precinct board members and other duties which may be directed by the elections official.” Cal. Elec. Code § 12310. In my previous letter, I noted that it is unclear whether this provision means that each precinct board member must be paid, or whether (as is more consonant with its text and context within the code) it simply specifies who is responsible for their compensation, in the event they are paid.
“The elections official shall pay a reasonable compensation to each member of the canvassing board of vote by mail ballots. This compensation shall be paid out of the treasury of the agency conducting the election as other claims against it are paid.” Cal. Elec. Code § 15103.
See the information provided at https://www.sos.ca.gov/elections/poll-worker-information. It is worth noting that this information pertains to high school poll workers, but the California Elections Code does not contain any provisions treating compensation of high school workers differently from other poll workers.