Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Welcome to the Machines: Election Day in Ohio

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May 2, 2006

The State of Ohio is among the states having its primary election today, which includes a closely-watched Republican gubernatorial contest between Secretary of State Ken Blackwell and Attorney General Jim Petro. Like other states having primaries this spring, the state is dealing with some significant changes in the law that are in effect for 2006 federal elections, including new voting machines in many counties. Whenever there are changes to a state's election ecosystem, there are bound to be some problems, and the early reports from places around Ohio suggest that today is no exception.

A bit of background may be helpful in understanding the challenges that state and local election officials – not to mention voters – face in this election. One of the major changes in the Help America Vote Act of 2002 ("HAVA") is to set certain minimum standards that voting equipment must meet, which I discussed in this weekly comment a few weeks ago. The most significant among these is probably the requirement that each polling place have at least one unit that's accessible to people with disabilities by 2006.

In addition, HAVA offered financial incentives for states to get rid of punch-card voting equipment. Ohio took advantage of these incentives, and therefore has to either get rid of its punch cards – used by about 70% of voters in 2004 – or pay back the millions of dollars in federal funds it's already received.

There's also a new requirement of state law in Ohio that takes effect this year, requiring a "voter verified paper audit trail." While HAVA requires a paper trail that can be used in the event of a manual audit, the Ohio legislature passed a law that goes further, requiring a particular type of paper trail. More specifically, electronic voting systems must print out a paper replica of the voter's choices at the time of voting which the voter can see before completing the voting process. The most typical configuration is for the voter's choices to print out behind a transparent plastic screen during the voting process, so that the voter can see but not touch it. Every county using electronic voting machines, as most in Ohio are, will have to have a device capable of printing a contemporaneous paper record of the electronically-cast ballot.

The end result of these changes in federal and state law is that many voters in Ohio will be voting on new equipment in this year's election. The Secretary of State's office has created this web site, which includes an interactive map showing what equipment is supposed to be in place in each of the state's 88 counties. The new equipment includes a mix of electronic machines and optical-scan ballots. Some of the electronic VVPAT systems that should be in place today are ones that haven't been used in real elections on any significant scale before this year.

The other major change in federal law taking effect this year is the implementation of computerized statewide voter registration lists, commonly known as "registration databases." HAVA requires that each state have in place such a database by January 1, 2006. (The original deadline was 2004 but Ohio, like most other states, got a two-year extension.) Ideally, such statewide lists will increase accuracy and allow for the easier sharing of information among election officials. But as I've discussed here, it's quite possible that this requirement will result in more glitches – including voters mistakenly being left off registration lists – at least in the short term. This change has gotten much less attention than voting machine changes, but it could be at least as important.

So how are these significant changes in Ohio's election system working on on Day 1? It's always perilous to make judgments about how well or poorly an election is going while that election is still going on. That's partly because the word on the street about election problems may turn out to be apocryphal. It's also because, even when the stories are true, the magnitude of the problems can be difficult to judge on election day. With these caveats, here's a round-up of some of the stories that have emerged on this election day.

- Franklin County, in which Columbus is located, is using new electronic voting machines made by ES&S. The Ohio News Network reports that about 20% of the county's polling places didn't open on time this morning, and the Columbus Dispatch has this report saying the same. Election officials say this isn't because of machine problems but rather because poll workers didn't boot them up correctly. Earlier today, I wrote this post on my own experience voting on the county's new touchscreen machine with the VVPAT.

- The past few weeks have seen a number of reports on equipment issues in Summit County, where Akron is located, including this one. Summit County is using a precinct-count optical scan system made by ES&S. According to this story in today's Akron Beacon-Journal, there have been some issues regarding the misfeeding of ballots into optical-scan machines and voters being given the wrong ballot in at least one instance.

- There are also reports of some machines not working properly in Cuyahoga County, which includes Cleveland and is the state's largest county. Cuyahoga is using an electronic touchscreen system made by Diebold in this election. It appears that some voters had to vote by paper due to difficulty getting the machines started, according to the Cleveland Plain-Dealer. There are also reports of problems with the equipment used to count the paper ballots used by absentee voters, and Cuyahoga County elections director Michael Vu says he'll ask the Board of Elections to authorize a hand-count of those ballots.

- Also in Cleveland, there's been this report of an apparent case of "poll rage" earlier today. A 61-year man was arrested after knocking over two machines at a polling place and assaulting another man outside. It's not clear what made him fly off the handle, but you can survey the damage here. The fourth picture actually allows an inside view of the "toilet paper roll" used in the VVPAT systems employed in Cuyahoga County and others in the state.

- The Cincinnati Enquirer reports that, in Clermont County, there will be a Republican director but no Democratic deputy director to supervise the counting of votes. The counting process is typically overseen by officials from both parties but, due to a dispute on the Board of Elections, there apparently won't be a Democrat participating. The two Republicans on the board reportedly refused to approve the deputy director favored by the two Democrats on the board.

What to make of all this? There have undoubtedly been some problems in implementing new voting equipment, as is to be expected. It's less clear how well the new statewide registration list is working. The absence of news stories on the subject so far doesn't necessarily mean that all is well, since this is something that the media is less likely to focus on. It will probably take some time to accurately assess how well the big changes in Ohio elections went in their first implementation.