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.

Free & Fair

Look to Minnesota for vote-counting solution

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December 19, 2007

This commentary originally appeared as an op-ed in the Columbus Dispatch on December 19, 2007.

Ohio Secretary of State Jennifer Brunner is concerned that computers used to count ballots at precincts are vulnerable to hacking. In a major report released last Friday, she recommends instead counting ballots centrally at Ohio's 88 county boards of election.

Whatever the risk of hacking, however, it is a mistake to eliminate the counting of ballots at local precincts.

Ballots have been known to go missing during transport from precinct to main office. In the old days, ballot boxes sometimes would end up in the river. In 2006, during the much-troubled May primary in Cuyahoga County, election officials misplaced 70 cartridges containing the votes from 200 precincts.

A better way to address Brunner's concern would be to count ballots twice, first at the precincts and then again after they've arrived at headquarters. That way, if ballots were lost en route, voters would not be disenfranchised.

The general point is that we should rely on recounts, or audits, to address our concerns about potential counting errors, including those caused by software sabotage. There are different types of recounts, machine and manual, as well as different types of audits. A mandatory audit of 10 percent of precincts, no matter how close the margin of victory, is obviously stricter than an initial audit of only 3 percent of precincts unless the result is close enough to require a more rigorous review.

Given the concerns raised by Brunner's report, as well as the potential significance of Ohio to the 2008 presidential election, it would be appropriate to plan an especially rigorous audit of next November's election.

Depending on cost, for example, it might be worth conducting a 100 percent machine recount of every optical-scan ballot cast in Ohio on Nov. 4. This recount could occur at each county's central office over the ensuing 10 days, while waiting for overseas absentee ballots.

This recount would use computers and software that have been retested to make sure that no precinct-based hacking had occurred. An additional safeguard would be to rotate machines, so that each precinct's ballots are recounted on different ones than were used at that precinct on Nov. 4. If a discrepancy occurred, a manual recount would follow. But if not, it would show that nothing nefarious had happened at the precinct.

This centralized different-machine recount, unfortunately, would not work with ballots cast on touch-screen machines. Consequently, the most serious issue confronting Ohio in light of Brunner's report is what to do about those counties that use touch-screen technology. While in the long run it might be preferable for the General Assembly to mandate optical-scan ballots statewide -- although without eliminating precinct-based counting of those ballots -- it seems imprudent to hurry this conversion in all applicable counties before the 2008 election.

Franklin County, for example, differs from Cuyahoga in its ability to conduct acceptable recounts using the so-called paper trails that accompany touch-screen machines. In Nov. 2006, Franklin County successfully recounted 10 percent of ballots cast in the Deborah Pryce-Mary Jo Kilroy congressional contest. Cuyahoga County, by contrast, has had serious problems in both 2006 and 2007 with its paper trails, with up to 20 percent mutilated and thus useless in a recount. The explanation might be that Cuyahoga County bought a different type of touch-screen machine than is used in Franklin County. Whatever the reason, a sensible position for November would be to require Cuyahoga County to switch to optical scan while permitting Franklin County to retain its touch-screen technology, as long as it agrees to conduct another 10 percent recount of its paper trails.

The ability of recounts or audits to confirm the integrity of an election's results has been proved in other states. Minnesota, for example, successfully conducted is first mandatory election audit in Nov. 2006, to widespread accolades.

In a recent study of election administration in five Midwestern states, including Minnesota and Ohio, my colleagues at the Moritz College of Law and I concluded that Minnesota historically has had the best practices, serving as a model for other states.

In preparing for next November, Ohio would do well to emulate Minnesota's audit approach, rather than to stop counting ballots at the precinct before they may be recounted centrally.