A trial has been set for next month to determine who will occupy the District 4 seat on the Oakland Unified School District Board of Education after an error by the county registrar of voters’ office put the outcome into dispute, an Alameda County Superior Court judge said.

Nick Resnick was initially declared the winner of the November 2022 Oakland Unified School Board race against opponent Mike Hutchinson. He contends that Oakland’s ranked-choice voting method is unconstitutional. (Courtesy Nick Resnick)

Alameda County Registrar of Voters Tim Dupuis certified the election in favor of Nick Resnick but later realized voting machines were configured incorrectly and said that Mike Hutchinson really won the race. Hutchinson finished third in the certified results.

Because the election was certified, Hutchinson must take the matter to the court and let it decide who won the race. The March 16 trial is expected to last a day or less in the courtroom of Judge Brad Seligman.

Resnick is defending his win, arguing that the way votes are tallied in ranked-choice voting in Oakland is unconstitutional, an attorney for Hutchinson said in an interview.

Hutchinson’s attorney Beverly Grossman Palmer called it a “Hail Mary argument.” Grossman Palmer said all the other jurisdictions in the Bay Area use the same method that the Alameda County Registrar of Voters should have used in the November election.

No other election outcome in Alameda County changed because of the incorrect machine setting.

Outcome could alter ranked-choice voting rules

If Resnick succeeds in his challenge, “it would be a fairly significant change to the way ranked-choice voting is run,” Grossman Palmer said.

She thinks the current way gives voters more choice. The current way moves up a voter’s second choice to their first choice if they fail to mark a first choice.

Grossman Palmer thinks very few other jurisdictions in the United States use an alternative method.

Staff of the Registrar of Voters office on Monday and Tuesday examined 235 ballots at issue in the District 4 school board race by hand.

Grossman Palmer said the outcome of the examination showed Hutchinson winning as the voting machine did after it was set correctly.

Resnick’s attorney Jim Sutton was not immediately available to comment on the issues his client is raising.

Sutton said during a Feb. 10 conference hearing with Seligman that Alameda County County Counsel Donna Ziegler’s office has promised more than once to let him talk to Dupuis. Sutton wants to talk to Dupuis to understand how the problem occurred, among other things.

He has not talked to Dupuis, which has led to conspiracy theories, he said.

More than 26,000 people cast a vote for a candidate in the District 4 school board race.

Seligman said he wants to settle the election as soon as possible because it has been months since the November election. The trial is expected to be held in-person rather than virtually.