Election results in Santa Clara County are supposed to be certified Tuesday. The final count has voters narrowly passing a 1/8 cent sales tax measure to help extend BART from Fremont to San Jose.
David Schonbrunn says the razor thin margin of victory should automatically trigger a partial recount.
"In Measure B the margin of victory is .11, so it's one fifth of the threshold for requiring a manual recount," David Schonbrunn, a Measure B opponent.
The lawsuit was filed in San Francisco on Monday and will be heard on Tuesday. The suit argues recent regulations by the secretary of state require a manual recount of ten percent of the precincts when the margin of victory is less than one half of one percent, but the wording of those new rules only applies to simple majority races and that's where there's confusion and debate.
ABC7's Karina Rusk called the Secretary of State and the Registrar of Voters. Both have no comment saying the matter is now in litigation.
San Jose Mayor Chuck Reed who has long supported BART to San Jose is furious with the eleventh hour lawsuit.
"People who want recounts usually have to pay for them so the lawsuit is an attempt to get the taxpayers to pay for it and I hope the lawsuit will be rejected and we get the election certified this week and move on," said Mayor Reed.
The group behind the lawsuit says it is only asking the court to uphold the intention behind the regulation.
"The registrar of voters is saying we don't have any responsibility to give you a manual recount and we argue that they have a constitutional duty and we're asking a judge to enforce that," said Schonbrunn.
The tax measure has a victory margin of 700 votes with 620,000 votes cast. BART supporters are confident even a recount would result in a win.
"We think that's a lot of votes to be reversed and in our experience haven't seen that many votes reversed in a recount," said Phil Yost, from the Silicon Valley Leadership Group.
It should be known on Tuesday if BART to San Jose is on track for certification or a recount.