Federal complaint filed against San Jose Congress candidate Sam Liccardo

Silicon Valley congressional candidate Sam Liccardo is facing a complaint with the federal election commission alleging his campaign is coordinating a "dark money" effort to fund a highly-criticized recount in the Congressional District 16 race.   

Max Zarzana, a 25-year prosecutor and president of the Santa Clara County Government Attorneys Association, filed a complaint with a federal political watchdog on Friday. 

He accused the former San Jose mayor's campaign of engaging in a "secret scheme to illegally coordinate with a newly-formed dark money Super PAC to do his CD-16 recount bidding." 

He said the move is in line with his "past anti-transparent behavior." The FEC will determine whether the complaint is credible before opening an investigation to determine whether the campaign violated election laws.   

Zarzana said there's evidence showing Liccardo's campaign coordinated the recount. Liccardo's campaign conducted a poll that explored how well he would do in a three or two-way race just a few days after the election results were certified. 

"When we’re talking about Super PAC money, federal campaign laws require that there not be coordination between those Super PACs and a candidate," said Melissa Michelson, Menlo College political science professor. 

The complaint says Liccardo used a poll from April 8 that showed his campaign would be vulnerable in a three-way race and the next day, Padilla requested a recount. 

It also says the recount was paid for by the CTV PAC, which the association says was formed by people close to Liccardo. An unknown number of ballots… are also now being challenged in the recount.

"Even one vote, if it’s for Simitian or Lowe, that changes what the count will be and that’ll move us from three candidates to two," said Michelson. 

On April 9, just hours before the deadline, Jonathan Padilla, a former campaign staffer and "close confidant" of Liccardo, requested a recount in the primary election. That same day a super PAC called "Count the Vote" was formed and is now funding the recount.   

"Even one vote, if it’s for Simitian or Lowe, that changes what the count will be and that’ll move us from three candidates to two," said Michelson. 


Silicon Valley's highly contested District 16 recount starts this week

For the first time, two candidates are tied for second place in U.S. Congressional District 16. Now a recount of the votes will begin Monday, and it's expected to take about five days to complete.

Behind the super PAC are individuals who were previously paid by Liccardo and have close ties to the ex-mayor and his campaign.   

The super PAC lists James Sutton of Rutan & Tucker, LLP as its treasurer, and it has already spent $96,000 on the recount, according to the FEC complaint. 

Another attorney from the firm, Matthew Alvarez, serves as treasurer for "Neighbors for Results," a separate PAC that has spent more than $200,000 to support Liccardo in the race. Padilla, who previously worked on Liccardo's 2014 mayoral campaign and is the requestor for the recount, authorized Sutton and Alvarez to act on his behalf.   

((Sam Liccardo Photo by Dai Sugano/MediaNews Group/The Mercury News via Getty Images)(Joe Simitian Photo by Dai Sugano/MediaNews Group/The Mercury News via Getty Images)(Evan Low Photo by Phillip Faraone/Getty Images for Equality California))

"No reasonable person would believe that Sam's close personal friend and former staffer, Jonathan Padilla, went to all of this trouble because he loves democracy," Zarzana said. "But now (Liccardo) wants to fit right in with the Washington Beltway and is doing this deal in plain sight. It's an affront to our system of fair and open elections and must be investigated."     

Zarzana said Liccardo is "known for backroom deals," and points to Liccardo's efforts to skirt transparency laws under the public records request. A judge ruled in August that Liccardo and the city violated the California Public Records Act by failing to search for and release records from his private email account, costing taxpayers $500,000.   

Orrin Evans, spokesperson for Liccardo's campaign, was unaware of the complaint when San Jose Spotlight initially reached out.   

In a statement to KTVU, Evans said in part, "Days after trying to stop the counting of ballots, Sam Liccardo’s political opponents are now trying to distract from the fact that over 20 uncounted ballots were discovered at the Santa Clara Register of voters on Thursday…While Sam Liccardo has nothing to do with this recount, he believes that every legal vote should be counted."

Assemblymember Evan Low and Santa Clara County Supervisor Joe Simitian are tied for second in the Congressional District 16 race with 30,249 votes each. The two have seesawed between razor-thin margins for weeks, vying to join Liccardo in the November general election.   

A tie for second place means both candidates will advance to the general election, though a recount is expected to change the results.   

Michelson says it could take months for the FEC to investigate these claims and any conclusion to this filing will most likely happen after the November election.

KTVU reporter LaMonica Peters contributed to this report.