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Election Law @ Moritz

Election Law @ Moritz


You Can't Predict, You Can Only Plan: More Lessons From Ohio

Tuesday’s elections generated no media reports of widespread systemic meltdowns, but a few intriguing situations caught the attention of those of us who follow these sorts of things. One of those glitches, actually a series of events, involved the special primary preceding next month’s special election to replace the late Representative Paul Gillmor in Ohio’s 5th Congressional District.

 In August, 2007, much of northern Ohio experienced massive flooding, leading the federal government to declare six counties, including Putnam County, as disaster areas. As a result of the flood, Putnam County lost most of its voting machines.

In September, Representative Paul Gillmor died suddenly, requiring the Governor to call a special election, set for December 11, to fill the vacancy. A battle for the spot on the Republican ticket ensued, pitting State Representative Bob Latta against State Senator Steve Buehrer as the top two contenders and necessitating a primary, which was held on Tuesday contemporaneously with the general election.

In order to hold Tuesday’s elections, the Putnam County Board of Elections borrowed 140 machines (ES&S iVotronic touch screen machines) from the Franklin County Board of Elections to replace those rendered unusable by the flood. Forty of those borrowed machines were used for the special primary, which had its own separate ballot, separate lines for voters, and used separate machines.

Despite being tested multiple times before being sent out to the polling places, (Jennifer Feehan, “Glitches delay vote count for Seneca, Putnam,” Toledoblade.com, Nov. 8, 2007). the machines being used for the primary experienced “widespread” problems, with every precinct reporting at least one problem machine during the day, according to Ginger Price, the Director of the Putnam County Board of Elections. (“Cuyahoga County again part of voting delays around Ohio,” Ohio.com, Nov. 7, 2007.) The problem was traced to flash cards and the solution was to provide voters with the paper ballots usually generated for early and absentee balloting.

However, since their need had not been anticipated, the polling places did not stock a sufficient number of those paper ballots and they could not be printed quickly enough to accommodate waiting voters. Because voters were asked to return later when ballots would be available, the Secretary of State filed suit to keep the polls open in Putnam County until 9:00 p.m., and to delay reporting the Congressional primary’s results in all sixteen counties within the congressional district until Putnam County’s polls closed. The Help America Vote Act of 2002 required those voters voting during the extended hour and a half to vote by provisional ballot.

Once the polls closed, some poll workers began counting ballots at the polling place, instead of waiting until the machines and ballots were all sent to the county Board of Elections as the Secretary of State’s offices had instructed. While promising a “full review” of the process, Secretary of State Brunner stated “We didn’t lose any data. It was just a question of putting the data into a format that could be counted.” (“Brunner says full review of Putnam County election woes to be conducted,” Defiance Crescent-News.com, Nov. 8, 2007). Additionally, the Board of Elections did not have containers for the paper ballots, which also delayed the counting.

Results for the Congressional primary were announced at 6:00 a.m. on Wednesday morning, with a margin of fewer than 1500 votes. Senator Buehrer, the second-place finisher in the race, did not request a recount.

No one could have predicted the series of events leading up to the need for the election and the way in which it was run. However, many of these types of events should be planned for, as they are likely to occur in the future.

For example, a variety of circumstances can lead to a late-entry election or ballot changes. The death of an office-holder or a candidate is an obvious one—Minnesota Senator Paul Wellstone’s tragic plane crash is perhaps the most recent famous example-- but so are legal issues including successful challenges to eligibility of candidates or issues (as witnessed by the late ineligibility of an Ohio ballot measure that remained on the ballot although not valid), criminal convictions that render a candidate or office holder ineligible, and other changes in life circumstances that require withdrawal or resignation. Technological changes can accommodate some of these changes, and, in addition, it makes good sense for the General Assembly and the Secretary of State to be reexamining the deadlines for filing, as they are doing currently.

Another issue that cannot be predicted but that should be anticipated is that groups of machines will become inoperable. That can happen by natural disaster, such as the flooding that incapacitated Putnam County’s machines, or by other kinds of accidents. For instance, as machines are driven from storage sites to polling places, they are vulnerable to vehicular crashes. Additionally, bad actors may intentionally incapacitate machines. While I would not advocate that every county board of elections stock a large surplus of machines just in case a natural or human disaster wrecks some of their machines, we should think about how to plan for the need for additional machines. Had Putnam County’s flooding occurred next February, prior to the presidential primary, would Franklin County have had machines to lend?

One technical difficulty that beset Putnam County was the time it took to print additional paper ballots. Since paper ballots are the solution to a variety of problems, including an unanticipated deluge of voters or machines that stop working properly, we should anticipate the need to generate those ballots and should have the capacity to do so quickly.

Paper ballots, once voted, raised the need for a different counting process, which apparently tripped up some of the Putnam County poll workers. Again, as paper ballots are the preferred back-up system for all manner of voting problems, all poll workers should be trained specifically on how to deal with them, rather than assuming that paper ballots will be the exception and only a few people need to understand their handling.

Elections are not like running a Wal-mart or a grocery store in that elections do not permit just-in-time delivery with a rain-check for out-of-stock items. While it is important that county commissioners, who pay for most of the costs of elections in Ohio, are careful stewards of the taxpayer’s money, it is also imperative that elections be treated as the critical foundational events that they are. A few dollars saved in printing costs can be disastrous if that savings results in eligible voters being disenfranchised. Boards of elections, county commissioners, and the Secretary of State should work together to plan for those events which are sure to happen, but which cannot be predicted.

Terri Enns has been part of the Election Law @ Moritz team since the beginning of the project. Prior to coming to Moritz to teach in the Legislation Clinic, Ms. Enns served as Legal Counsel to the Ohio Senate Minority Caucus, where she regularly delved into Ohio's statutory oversight of campaigns and elections, working with election law both as it was being created and as it was applied. Enns has provided input for a variety of panels focused on election issues, including Campaigning with Character for the Bowhay Institute for Legislative Leadership Development; Current Controversies in Election Law for a panel at Marshall University, and Don't be Disenfranchised: Know Your Voter Rights and Election Law at the Feminist Majority Foundation's Get Out Her Vote 2008: Ohio Summit. View Complete Profile


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