Ohio AG Says Blackwell Lacked Power to Make Counties Choose Optical Scans
The voting machine wars in Ohio continue, with Attorney General Jim Petro getting into the act. The A.P. has this report.

Secretary of State Ken Blackwell announced last month that he was requiring Ohio counties to select a precinct-count optical scan system, reversing a previous order that would have allowed them to choose electronic voting machines instead. More specifically, Blackwell issued a directive (2005-11) requiring that county boards of election choose one of two precinct-count optical scan vendors by February 9, 2005, or have the Secretary of State designate one for them. Blackwell asserted that this was necessary, given the legislation passed last year to require a contemporaneous paper record (euphemistically known as the voter verified paper audit trail) for electronic voting machines. That device, Blackwell claimed, would make the purchase of electronic machines too expensive.

In an opinion issued today (A.G. Opinion 2005-006), Petro concluded that Blackwell was without power to issue the directive requiring the counties to choose an optical scan system or have the choice made for them. Franklin County, which has used electronic voting systems for years, asked the A.G. for this opinion.

The opinion rests on a provision of Ohio state law, R.C. 3506.02, empowering county boards of elections to make decisions about voting equipment. The Secretary of State has the power to certify voting equipment and, under the VVPAT legislation passed last year (H.B. 262), isn't allowed to force counties to purchase electronic voting equipment or to purchase that equipment except when acting as an agent for the counties. In brief, the A.G. finds that Blackwell didn't have the power to make the counties choose an optical scan system.

My take: What a mess!

I'll avoid speculation about whether Ohio's gubenatorial politics may underlie the latest tiff between Attorney General Petro and Secretary of State Blackwell (both of whom are Republicans planning to run in 2006). I'm also not sure whether or not A.G. Petro's interpretation of Ohio law is correct. It does appear that the legislature intended to limit the powers of the Secretary of State, preventing him from dictating to the counties what type of voting equipment they may use.

The net effect of this may, however, be that Ohio will fail to comply with the Help America Vote Act. If the counties don't choose some type of voting equipment soon, then they may not be able to replace the punch card ballots, still used in 68 counties, by 2006. Ohio is required to get rid of this equipment by 2006, as a condition of having received money for the replacement of this equipment under Title I of HAVA. And that's to say nothing of HAVA's requirement that Ohio provide at least one accessible unit at each polling place, which will be very difficult if not impossible to meet in light of H.B. 262's mandate that the equipment generate a contemporaneous paper record. There's no DRE system currently certified in the state that meets this requirement, nor is it clear that any will meet certification requirements in time for them to be implemented by 2006.

Could Ohio have to pay back the money it received under HAVA? At this point, it seems like a distinct possibility. And H.B. 262 looks worse and worse by the day.
- posted by Dan Tokaji @ 11:00 PM