2006

Sporadic, Not Systemic: Ohio Relatively Problem-Free

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By Terri L. Enns

Tuesday’s voting in Ohio went more smoothly than anticipated, and certainly more smoothly than some past experience would have portended. The biggest news was that those problems that did crop up were not widespread or systemic, but rather were localized and sporadic. What follows is a collage of reported glitches: One of the most common complaints concerned long lines. Reasons for those lines included voter unfamiliarity with how to operate new machines, long ballots, and heavy turnout. In some precincts, lines resulted from poll workers who failed to arrive or to open the polling places on time, and some of those delays were attributed to illness and to technical difficulties with setting up the machines. Another kind of problem was with new requirements that voters provide identification when voting. Voters without the proper identification are permitted to cast a provisional ballot. Problems were reported with poll workers requiring voters to cast a provisional ballot when the voter believed he or she had provided acceptable identification. Additional complaints centered on poll books being marked to require individual voters to cast provisional ballots and those voters feeling that they were not provided adequate explanations as to why they should vote provisionally rather than cast a regular ballot. Technological glitches also impeded the voting process in some places. At least one board of elections had its phone system go down due to an overwhelming number of calls. A temporary power outage halted voting for a brief time in at least one location. Some precincts reported problems with the paper trail getting jammed or other kinds of printer malfunctions. The overall picture is that, despite some inconveniences and delays, voters in Ohio were able to cast their votes on Election Day with relatively few problems. Problems that did arise should provide a blue print for educating both election officials and the public before our next election.

Montana: How to Get from Here to Certification

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By Terri L. Enns and Nathan Cemenska
Here is an analysis of the procedure leading up to certification of a winner and potential recount.

In Montana, before a recount can be requested there must be an official canvass of the votes and the winner certified. The procedures for arriving at the official tally are summarized below: Vote counting may begin prior to the close of polls, and will continue until finished. MT ST 13-15-207. From that point, the boards of county canvassers take over. They shall meet within three to seven days after the election to canvass the precinct returns. MT ST 13-15-401. However, if not all precinct returns are received, the board of county canvassers will postpone the canvass from day to day until all precinct returns have been received. MT 13-15-402. After canvassing, the county board will certify the results to the secretary of state. MT ST 13-15-501. The Board of State Canvassers, for whom the secretary of state serves as secretary, meets after all the returns have been received from the county boards, but no later than twenty days after the election, and certifies the winner. MT ST 13-15-507. In order to count absentee ballots, the following rules apply: As soon as absentee ballots are received, officials determine to treat it in one of three different ways. First, if they determine that 1) the signature is genuine, 2) the voter is registered, and 3) any identification number associated with the voter matches up, the ballot is handled “as a regular ballot.” MT ST 13-13-241. If they determine the signature is not genuine or the voter is not registered, they will reject the ballot then and there. Id. Finally, if the signature and registration pass scrutiny but the identification number does not match up, the ballot will be treated as a provisional ballot unless the voters provide corrected identification after notification. Id. For a provisional ballot to count, the voter must provide verification of identity and eligibility, or provide material responding to a challenge, by 5:00 p.m. on the day following the election. MT 13-15-107. However, once that information is received, the election officials may not count provisional ballots until 3:00 p.m. on the sixth day following the election. MT ADC 44.3.2114. If a board of county canvassers finds an error in the precinct count, it may petition for a recount under 13-16-201 or an inspection of ballots under 13-16-420. The 2006 timeline for counting votes: Nov. 7 Election Day. Counting of regular and absentee ballots begins. Nov. 8 Supplemental information for provisional voter eligibility and identity due by 5:00 p.m. (or must be postmarked by 5:00 p.m.). Nov. 10 Earliest date that board of county canvassers may begin canvassing precinct returns. Nov. 13 Day provisional ballot counting may begin in precincts. Nov. 14 Latest date on which county board of canvassers may begin canvass. Nov. 27 Date on which board of state canvassers must meet and certify final tally.

Contributed by Terri Enns and Nathan Cemenska.

Montana: Recount and Contest Laws

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It is looking as if a recount may occur in Montana�s U.S. Senate race, as well as Virginia�s. Section 13-16-201 of the Montana�s Code provides for a state-funded administrative recount in an election for a �congressional� or �state� office, when the margin of victory is �not exceeding � of 1% of the total votes cast for all candidates for the same position,� and �the defeated candidate, within 5 days after the official canvas, files with the election administrator a verified petition stating that the candidate believes that a recount will change the result� and thus should occur. Section 13-16-211 provides for an administrative recount at the candidate�s expense if the margin of victory is between � and � of one percent and the candidate files within the same 5-day deadline. In addition, under section 13-16-301, �[w]ithin 5 days after the canvass of election returns, an unsuccessful candidate for any public office at an election may apply to the district court of the county were the election was held for an order directing the county recount board to make a recount of the votes cast in any or all of the precincts.� In a statewide race, the relevant district court is �the county where the candidate resides.� This section further specifies: �If the judge finds there is probable cause to believe that the votes cast for the applicant . . . were not correctly counted, he shall order the appropriate county recount board to assemble within 5 days after the order is issued at a time and placed fixed by the order.� According to section 13-16-307, the expense of a court-ordered recount is paid for by the candidate if the recount is unsuccessful, but not if it shows the candidate to have been the rightful winner. In addition to these recount procedures, Montana law has a separate provision for a judicial contest of the election results. This provision, section 13-36-101, states that a qualified voter may contest the election �on the ground of a deliberate, serious, and material violation of any provision of the law relating to nominations or elections� or �on account of illegal votes or an erroneous or fraudulent count or canvass of votes.� This provision was recently the subject of a Montana Supreme Court decision in Big Spring v. Jore, 326 Mont. 256, 109 P.3d 219 (2005), a case involving a contested state legislative race. In that case, with one justice dissenting, the state�s supreme court reversed a trial court�s decision that left the victory with the declared winner. Thus, the decision had the effect of overturning the result of the election. The state supreme court�s ruling in Jore hinged on five optical scan ballots where ovals had been filled in for two candidates but an additional X had been placed in the oval next to the candidate named Cross. The state supreme court ruled: �None of the five ballots containing an X in the oval before Cross�s name satisfied the objective standards for clearly determining voter intent on overvoted ballots . . . [and thus] we hold that these five ballots should have been declared invalid and not counted.� (109 P.2d at 226.) The state supreme court viewed its decision as consistent with the U.S. Supreme Court�s decision in Bush v. Gore, 531 U.S. 98 (2000). The dissenting justice, however, saw the court�s decision as inconsistent with Bush v. Gore. As of now, it is unclear whether there will emerge any factual basis for a contest of this election, either comparable to the overvote issue in Jore or otherwise. Montana continues to use optical scan ballots in 40 counties as well as hand-counted paper ballots in 16 other counties, according to the Secretary of State�s website. At this moment, one Montana newspaper is reporting that Democratic challenger Jon Tester leads Republican incumbent Conrad Burns by a 1735-vote margin, 194914 to 193179. A third candidate has 10,166. With these numbers totaling 398,259, and apparently accounting for all but one precinct, the 1735-vote represents 0.4356% of the vote. As of this moment, however, it is also unclear how many provisional and perhaps absentee ballots remain to be counted.

UPDATE: The same newspaper is now reporting that Tester lead Burns by a 1729-vote margin, 195,235 to 193,506. The third candidate, Jones, now has 10188. With a new total of 398,929, the 1729-vote margin translates to 0.4334%.

SECOND UPDATE: The latest numbers now have Tester leading Burns by a 3128-vote margin, 198,032 to 194,904. Jones, the third candidate, has 10,303. Tester�s lead, in percentage terms, is now 0.78%, out of a total of 403,239 counted.

Post-Election Disputes in Virginia’s US Senate Race

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By Steven F. Huefner

As of this posting, the race for US Senator from Virginia is very close, suggesting that the outcome may remain unsettled for some additional period, perhaps not only until a recount is completed, but beyond. Indeed, in this case the Senate itself may determine the ultimate outcome, sometime next year. Here�s why. In Virginia, the defeated candidate may obtain a recount if the margin of victory is equal to or less than 1% of the total votes cast for the apparent winner and the defeated candidate combined. V.C.A. 24.2-800. To request a recount, the defeated candidate must file a recount petition within ten days of the certification of the results. V.C.A. 24.2-801. A recount court then convenes and fixes the procedures used to recount the votes. V.C.A. 24.2-802. The recount �shall not take into account (i) any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election�.� Id. Additionally, �the eligibility of any voter to have voted shall not be an issue in a recount.� Id. These provisions, especially when coupled with the automated tabulation systems in use in Virginia, seem to indicate that the recount process alone is not likely to produce dramatic changes in the vote totals, as Dan Tokaji suggested last night. Meanwhile, in a typical state election, challenges to the legitimacy of specific ballots instead could be raised in a contest proceeding. But Virginia�s contest provisions by their terms do not appear to apply to US Senate races. While V.C.A. 24.2-800, entitled �Recounts in all elections,� states that it applies to �all elections held in the Commonwealth,� Virginia�s election contest provisions do not similarly state that they apply to all elections. Rather, separate contest provisions govern General Assembly races (V.C.A. 24.2-803); races for Governor, Lieutenant Governor, and Attorney General (V.C.A. 24.2-804); races for electors for US President, electors for US Vice President, and primary races for US Senate or statewide office (V.C.A. 24.2-805); and races in �other primaries or elections,� including primaries for the US House (V.C.A. 24.2-806). Given the absence of any express statutory provision for a contest of a general election for US Senator, Virginia�s own precedents would appear to exclude such races from the jurisdiction of the state courts: �It is a firmly established general rule that the jurisdiction of courts exercising general equity powers does not include election contests, unless it is so provided expressly or impliedly by organic or statute laws. The reason for the exclusion is that the questions involved are political�.�� Cundiff v. Jeter, 2 S.E.2d 436, 439 (Va., 1939), citing 19 Am.Jur. 359; see also Sanders v. School Board of Prince William County, 163 S.E. 394 (Va., 1932). In the absence of any state contest procedure, the US Senate, which has constitutional authority to judge the elections of its members, may end up as the only body authorized to resolve the political question of the outcome of this election, especially if after a state recount the margin remains very close. It would be the incoming Senate next January that would first face the question of judging the elections of its members. Moreover, the Senate may take up the matter even in the face of a valid state recount declaring a winner. While Virginia is free to conduct such recounts, this does not constrain the ability of the Senate to make an independent judgment of the election outcome: �A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.” Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). Thus, the potential is real that a Senate divided 50 to 49 would be called upon to determine the rightful occupant of the 100th seat � an incredibly difficult task.

Ohio: Wednesday Morning, 3:00am

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A recount in an Ohio congressional or statewide race remains conceivable but perhaps less likely than it appeared heading into Election Day. Based on unofficial returns posted on the websites for the Secretary of State and the Franklin County Board of Elections, it appears that in the election for Ohio�s 15th congressional district the incumbent Republican Deborah Pryce has a lead of 11,261 votes over challenger Mary Jo Kilroy, with 100% of precincts having reported. But, according to the Columbus Dispatch, there still remain approximately 20,000 absentee ballots to be counted, as well as an �unknown� number of provisional ballots. Although these numbers make an automatic recount unlikely (which requires that the margin of victory in a district race to be within one-half of one percent), a losing candidate is entitled to pursue an optional recount at the candidate’s expense. Likewise, in the statewide race for Auditor, unofficial returns at the Secretary of State�s website show the Republican candidate leading by 78,131, or 2.24%, with 96.44% of precincts reporting. The Secretary of State also reports a statewide total of 86,330 absentee or provisional ballots that remained to be counted, but significantly those totals do not yet include figures from several of the state�s most populous counties, including Cuyahoga, Franklin, and Hamilton. The margin of victory necessary to trigger an automatic recount in a statewide race is even narrower than in a district race (one-fourth of one percent, rather than one-half of one percent), but again a requested recount remains an option for a candidate willing to pay for one. Moreover, in Ohio a losing candidate for a state office, but not a federal office, may pursue a judicial contest of the election.

Be Thankful If It’s All Over By Thanksgiving

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As lawyers look for close races to contest, it is important to remember that just because the result of an election is challenged in court, it does not necessarily mean that the public should view the result as tainted or the electoral process broken.

Instead, if the litigation ends with the losing side acknowledging that ultimately the votes weren’t there, then this kind of delayed concession speech should be accepted as evidence of the system working successfully, just as if the concession speech is delivered tonight.

This observation is a specific application of a general Election Validity Test that I proposed in a previous Weekly Comment: the electoral system operates successfully, regardless of its ability to produce a winner on Election Night, if by the time the winner is supposed to take office the losing candidate accepts the result as fair and accurate. Measured against this standard, the presidential election of 2000 cannot be considered a success. Although Al Gore delivered a speech accepting the decision of the U.S. Supreme Court to stop the recount in Florida, it was not a speech acknowledging that the process had fairly and accurately determined that more votes had been cast for his opponent. Instead, it was a gracious but begrudging acceptance of the finality of the Court�s decision for the simple benefit of ending the dispute. Yet, although the presidential election of 2000 was most certainly not a success, I also would not condemn it as a failure. As others have observed both then and recently, that election was simply too close to demand that an electoral system accurately identify the rightful winner beyond any reasonable dispute. A standard for evaluating whether an electoral system operates successfully needs to let the system off the hook in the event of a statistical tie. My proposed Election Validity Test would set this threshold at one hundredth of one percent. In other words, if the certified margin of victory is less than this threshold�which translates to 100 votes for every million cast�then I would not expect the electoral system to be able identify an indisputable winner. But it is much less important that my proposed threshold become the prevailing one than it is that, as a society, we settle upon a publicly recognized threshold. We have yet to seriously and systematically consider the question. That policy discussion, however, is for the future. Meanwhile, it is necessary to ask whether the operation of electoral system this year, even if it yields results well above any plausible threshold for a statistical tie, will be able to be deemed a success. As polling places are about to open, one cannot know for sure either way. Even if the margin of victory in an important statewide race turns out to be one percent, it is possible (although unlikely) that a major system failure prevents a tallying of ballots that a reasonable losing candidate must accept as fair and accurate. For example, if voting machines were inoperable on a widespread basis only in precincts demographically aligned with one candidate, and there were no back-up paper ballots available in these precincts, then the losing candidate might be able to complain legitimately that even a one percent margin of victory cannot be accepted as a valid in light of disenfranchisement that occurred. Conversely, however, despite all the controversy that has already surrounded the electoral process this year, it is by no means a foregone conclusion that the system is destined for failure, and this point is true even if the system is unable to identify a winner tonight, or even by Thanksgiving. For example, the counting of provisional ballots in a very close race (but one that is still above the threshold of a statistical tie) may take several weeks. But if in the end both sides agree that this counting of provisional ballots accurately includes the votes of all those who were in fact eligible, while accurately excluding the ballots cast by those who turned out to be ineligible, and if they are no disputes over regular ballots, then the outcome of this election�although delayed several weeks�would be entirely successful in identifying the rightful winner. Thus, as long as the system produces a winner by New Year�s Day, and does so pursuant to a final and official count of the ballots that the losing candidate recognizes as fair and accurate, then the system passes my Election Validity Test. To be sure, it would be better to have the election resolved in November rather than December. But it is much better to have it settled in December by a mutually accepted count than to have it end in November with a count that one side rejects as incomplete and error-ridden. Most significantly, it is unrealistic to expect a very close election to be resolved on Election Night, or even in the following few days, especially in this new and welcome era of provisional ballots. Election Night returns are just early, unofficial results. There cannot possibly be an official winner until after voters who need to produce identification that they did not bring to the polls have an opportunity to do so�and, then, after all the provisional ballots are sorted into countable and uncountable stacks. A concession speech on Election Night is simply a candidate�s recognition that the winner�s margin of victory is large enough that there�s no need to wait for completion of the official count. But a concession speech that comes after the official count is complete, and which recognizes that the official count ultimately identified the rightful winner, is just as much a vindication of democracy at work, if not more so, since the system was put to a greater test. And if in a very tight race this kind of concession speech is able to be given before the two candidates�and all their supporters�sit down at their respective Thanksgiving dinners, then that successful outcome of the electoral process is something for which all citizens should be especially grateful.

Ambiguity in Ohio’s VVPAT Recount Process?

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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.

The Adversarial Legal System at Work

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The Secretary of State�s response in the case involving the claim that Ohio law requires the public display of precinct results at each precinct shows the benefit of having both sides to a legal dispute present their arguments before the court decides the case. Here, the Secretary of State makes two strong points as to why the Ohio Supreme Court should deny the claim. First, the Secretary of State issued its notice suspending the public display requirement on October 4, 2005, not a month ago, as erroneously stated in this space last night, but over a year ago. Therefore, the Secretary is on strong grounds for saying that this particular claim, filed just on Friday, is far too late to be considered, even if it otherwise had merit. Second, with respect to the merits itself, the Secretary observes that, although one part of Ohio law does mandate the public display of precinct results, that part�although never repealed by the General Assembly�arguably has been superseded by a more recent enactment, which provides for the open and transparent counting of votes, but in a different way. The newer law, which the Secretary says takes account of developments in vote counting technology, requires the �counting and tallying of ballots at the appropriate office, as designated by the board, in the full view of the members of the board and observers� (Ohio Revised Code section 3505.27). After this election, the General Assembly should go back and clear up the confusion between the two different sections of the state�s laws. In the meantime, however, given the lateness of the lawsuit, and the fact that sufficient transparency exists in the system under the Secretary�s current interpretation of the laws, it would seem proper for the Ohio Supreme Court to reject this particular claim.

Transparency Promotes Trust

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As if Ohio hasn’t had enough pre-election litigation already this year, two new lawsuits were filed on Friday. A court might be tempted to say “too late” without even bothering to consider the merits of the claims. Yet each case presents allegations that, if true, are troublesome enough to deserve attention. One case, which has been filed directly in the Ohio Supreme Court, concerns the public display at each precinct of the vote counts from that precinct, just before those counts are transmitted to the county board of elections. The other case, scheduled for a hearing on Monday in the Cuyahoga County Court of Common Pleas, involves the right of each political party to send an observer to each precinct to watch the voting process. Although different in their specific details, both cases concern the openness of the voting process. Moreover, both cases involve claims that the Secretary of State’s Office has recently changed longstanding rules to make the voting process less open. In the supreme court case, the claim is that on October 4 the Secretary of State announced that the vote counts from each precinct no longer need to be publicly displayed at that precinct, even though section 3505.30 of the Ohio Revised Code explicitly requires it. In the Cuyahoga County case, the claim is that on November 1 the Secretary of State announced that political parties are no longer permitted to add new individuals to their amended lists of precinct observers, which are due on Monday, but are only permitted to substitute different individuals for those already identified on their original list, which was due October 27. Whatever the merits of these claims, it seems difficult to fault their timing. To be sure, the supreme court case could have been filed in October, rather than November, since it complains about an October 4 announcement. But litigation over Election Day procedures is almost as undesirable in October as November, and the Secretary of State would be a much better position to say “too late” if the announcement about no need for public displays of precinct results had been made months ago. Likewise, it seems hard to file a legal complaint about a November 1 announcement much before November 3, especially when (as in this situation) the Secretary of State actually issued a clarifying announcement on November 3 itself, which stated that, yes indeed, additional names would not be permitted on amended lists of observers. Ordinarily, I don’t like to reach a judgment about the merits of a legal case until I’ve had a chance to review the arguments submitted on behalf of both sides. (It’s the law professor in me, as well as my experience as a clerk to two different federal court judges.) I haven’t had a chance to see the Secretary of State’s responses to the claims in these two cases. In fact, I don’t even know if they have been filed yet. Moreover, I strongly believe that legal cases should be evaluated on their legal merits, which doesn’t necessarily correspond to the better policy position on the underlying issue. As I told the students in my Election Law class just this Friday—the same day these two new lawsuits were filed—felon disenfranchisement might not violate the federal Voting Rights Act even if it is bad policy. Yet, as I sit here on Sunday evening, with the polls opening on Tuesday morning in approximately 36 hours, I find myself reaching this judgment applicable to these two cases that is independent of whatever technical legal merits they might have, and without benefit of having read responses from the Secretary of State: for the purpose of the voting at polling places this Tuesday, without regard to what rules should exist for the future, both these cases would do better to be resolved in favor of greater openness rather than less. There is enough public distrust surrounding the voting process this year, with the potential for more developing depending upon how matters transpire on Tuesday, that it would be preferable to eliminate other possible bases for distrust. By permitting the political parties to have their statutorily authorized number of observers at polling places (as long as they submit the names of those individuals on their amended forms tomorrow), and by requiring the public display at each precinct of the vote count at that precinct, the electoral system would be more transparent and therefore more trustworthy. It would be best, of course, if this result could be reached without court order, by a settlement of these two lawsuits. One important lesson of the recent litigation over the state’s new voter identification rules was that the negotiated agreement that ended the litigation (at least until November 7) was a positive resolution, especially in comparison to the ongoing court battles that might have ensued. Therefore, it would be most welcome if the lawyers in these two new cases could learn from that experience and reach quick agreements that avoid the need to go to court over these two aspects of Election Day procedures. But if a settlement cannot be reached in either of these cases, then I’m prepared at this point to say that state-court orders that would increase the openness of these Election Day procedures would be a healthy, rather than disruptive, involvement of Ohio’s judiciary. Unlike the voter identification litigation, which occurred in federal court (and therefore did not permit the State of Ohio to run its own elections), a judicial decree in either of these two cases would be an instance of Ohio’s policing itself. It would seem difficult for the Secretary of State to be upset about the last-minute nature of this policing when it could have been avoided by that office issuing its announcements about Election Day procedures much earlier this year.

If nothing else, judicial orders to open up Election Day procedures in these two ways—by letting the political parties have their observers, and by publicly displaying the vote count at each precinct—minimize the likelihood of outcries afterwards that the election was stolen and there was no way to tell because the theft was hidden by the Secretary of State.

Serious Issues Surface in Maryland

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As polling shows tightening of the state�s gubernatorial and U.S. Senate races, three new developments have occurred recently, compounding concerns raised by the problems that plagued the state�s September primary. First, the Washington Post reports that the Republican Party has told its poll watchers that their �most important duty� is to challenge individuals they believe ineligible, a move that Democrats and other observers say is a �voter suppression� effort. Second, the Baltimore Sun reports that at least ten poll workers received an apparently fraudulent phone call telling them that they had been reassigned to a different precinct, a scheme that if effective could prevent polling places from opening on time. Third, there have been widespread reports of shortages of available absentee ballots, a problem that might prompt a civil rights suit according to at least one account. These controversies and others that might emerge could serve as a predicate for attempting to contest a close vote.