Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Monday, April 10
The Ohio Recount Revisited
Blogs are buzzing after last week's report, in the Cleveland Plain Dealer and elsewhere, on three Cuyahoga County election officials indicted for "fudging" the required random selection of precincts for that county's recount of the 2004 election. A special prosecutor, Kevin Baxter, says more indictments are possible.
A bit of background may be helpful as a recollection-refresher. Under Ohio law (ORC 3515.011), an automatic recount would have taken place if the margin of victory was less than 0.25%, which wasn't the case in the 2004 presidential election. However, any candidate could also obtain a recount, with a deposit of $10 per precinct (ORC 3515.03). That amount has since been increased to $50, by Ohio Sub HB 3, passed earlier this year, to be adjusted for inflation in future years.
The Green and Libertarian Parties' candidates followed this procedure to request a recount throughout the state. Although Ohio's statutes didn't specify precisely how the recount was to be conducted, and in particular the extent to which a manual recount was required, Secretary of State Ken Blackwell promulgated a directive before the election specifying the procedure. Under those procedures, counties required to randomly select 3% of precincts to recount manually. If the totals of the manual recount matched those of the prior machine count, then other precincts were to be recounted by machine. If they didn't match, then the other 97% would all have to be counted by hand.
The logic behind this procedure is that a match between the manual recount and machine count indicates that the machine count was accurate, while a discrepancy provides some reason for questioning whether the machine count was accurate. But the truth is that in any jurisdiction using punch-card ballots -- as all of Cuyahoga County's voters and about 70% of voters in the state did in 2004 -- there's a good chance that the manual recount won't match the initial machine count. That's because of the fragility of punch card ballots. Chad can easily become dislodged or pressed back into place, when handled or put through machines during the counting and recounting process.
According to the Plain Dealer, the indictment of the three Cuyahoga County officials alleges that the 3% of precincts selected for manual recounts weren't really selected at random. Instead, it's alleged, county election officials actually recounted ballots in some precincts before the official manual recount began. Those that didn't match the machine count were allegedly excluded and, at the time that precincts were being chosen, officials only pretended to choose the precincts to be recounted at random. This would defeat the purpose of the 3% random recount, by preventing discovery of those precincts in which the machine count and manual recount disagree.
Sure enough, when Cuyahoga County's manual recount was actually conducted, the machine count and manual recount matched. The remaining 97% of ballots were therefore recounted by machine rather than by hand. Kerry ended up gaining 17 votes, while Bush lost 6 votes.
I don't have any knowledge of the truth of these allegations. Michael Vu, the executive director of Cuyahoga County's election board -- and an election official of whom I think highly -- adamantly denies them. And it's important to keep in mind that all we've got at this point is an indictment and, in our system of justice, individuals are presumed innocent until provent guilty.
That said, I wouldn't be terribly surprised if the allegations were true. Given the substantial margin by which President Bush won in Ohio (over 136,000 on election night, later reduced to around 119,000 after provisional ballots were counted), there was almost no chance that a recount would uncover enough votes for Senator Kerry to affect the outcome. Under these circumstances, it's plausible that local election officials cut corners to avoid what likely seemed to them a pointless recount.
That is not to say that the alleged conduct, if it in fact occurred, was justifiable or excusable. Election officials have an obligation to abide by election laws and administrative directives, whether or not they agree with them. The failure to follow prescribed procedures can only result in a loss of public confidence in the results. Whatever the result of this case, it should serve as a reminder to local election officials that failing to follow the rules -- however cumbersome or inefficient they may seem -- will ultimately cause more trouble than it solves.