By Steven F. Huefner
In the event of a recount involving counties using touch-screen machines, a directive from the Ohio Secretary of State’s office regarding the process to be followed in counting the machines’ paper audit trails appears to conflict with Ohio statutory law.
Ohio, like a number of states, requires its touch-screen voting machines to include a voter-verifiable paper audit trail (“VVPAT”). As Dan Tokaji recently described, Ohio statute provides that the VVPAT “shall serve as the official ballot” in the event of a recount. One natural reading of this language is that in a recount, election officials would need to manually count the VVPAT of each voter who voted on a touch screen machine. However, a directive from the Ohio Secretary of State’s office appears to adopt a different interpretation. The directive, No. 2006-50, instructs local election officials to manually inspect the VVPAT rolls from only a sufficient number of whole precincts to represent 3% of the total vote cast, and then to confirm that the individual votes recorded on each paper roll match the summary total printed at the end of that roll. The directive then provides: “If there is no difference between the manual record and the VVPAT summary, the VVPAT summary for every voting device shall be presumed accurate.” According to the directive, the manual recount then would proceed by manually adding only the VVPAT summaries from each VVPAT roll, rather than by manually counting each voter’s selection on all VVPAT rolls. The question of whether this VVPAT recount process conforms to the statutory requirement may end up in court. Obviously, it would be administratively efficient to rely on the VVPAT summaries provided they match the individual votes in a 3% sample. But it is not hard to imagine some kinds of voting machine fraud or error that could go undetected in a 3% sample and yet affect the outcome of an election.