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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.

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"Central Counting" of Paper Ballots in Ohio

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February 25, 2008

In a previous piece, I discussed potential “chain-of-custody” issues relating to the central counting of optical scan ballots in Cuyahoga County. I now realize that potentially, for somewhat complicated reasons, similar issues exist statewide.

It is true that only Cuyahoga County (and one or two much smaller counties) will use centrally counted optical scan ballots as their principal voting technology on March 4. But Ohio Secretary of State Jennifer Brunner has ordered that any county that uses touchscreen (DRE) machines as its principal voting technology must also make available optical scan ballots as an alternative for voters. More to the point, Brunner has specifically required that these optional paper ballots be centrally counted, not initially tabulated at their precinct.

Roughly two-thirds of Ohio counties use touchscreen machines as their principal voting technology, including Franklin County, the second largest (where Columbus, the state capital, is). Consequently, depending upon how many voters take advantage of the new paper ballot option, a significant percentage of ballots statewide could be transported from precinct to central office before there is any tabulation of them.

There is at least one wrinkle to all this, however. A lawsuit is now pending before the Ohio Supreme Court that seeks to invalidate Secretary Brunner’s requirement that touchscreen counties offer a paper ballot alternative. (The court has ordered both sides to file their briefs and evidence by Thursday, February 28.) If the court were to invalidate Brunner’s order, presumably then at least some counties would no longer provide this option. Others might still do so, and for those the chain-of-custody issues associated with the central counting of paper ballots would remain.

Secretary Brunner has issued (on February 19) a separate directive concerning chain-of-custody procedures for ballots and other voting equipment. That directive requires all persons involved in the transfer of ballots from one place to another to sign a chain-of-custody log, which includes an obligation to inspect the package in which they are delivered for signs of tampering (a signature on the form indicating that the person found no such signs).

But this directive does not impose any requirements on who is entitled to be involved in the movement of ballots from precinct to central office after the polls close. Indeed, on the same day as this directive, Secretary Brunner submitted a survey to the county boards of elections asking them for this information. The first question on the survey asks how many individuals will participate in the transport of ballots on election night, and if the answer to this question is “more than one,” the second question asks whether they must be affiliated with different political parties. Perhaps interestingly, in the context of the March 4 primary, there is no inquiry whether these individuals must (or may) be affiliated with different candidates contesting to be the presidential nominee of the same political party.

There is a new statute, passed just last week, that provides for certain procedures concerning the movement of ballots from precincts to a central location, but that emergency statute applies only to optional “mid-day pick-up” of paper ballots to be centrally counted. It does not apply to the end-of-day transport of optical scan ballots for central counting.

Moreover, earlier today (February 25), Secretary Brunner issued a separate directive concerning the “Rights of and limitations on election observers.” This 17-page document is a major development in election administration within the state and warrants considerable analysis. What is noteworthy here are two points. First, in keeping with Ohio statutory law, the directive guarantees observer status only to one representative of each political party. It does suggest, however, that local boards may, at their own discretion, extend an invitation to additional observers from a political party, and the directive “strongly encourage[s]” local boards to exercise this discretion. Thus, for example, in the context of the March 4 primary, it would be possible for the Democratic Party to designate separate observers associated with the campaigns of the two presidential campaigns, and for local boards to permit both observers to participate.

This first point is a salutary development to promote the transparency of, and thus (as the directive itself notes) “public trust” in, the electoral process. The second point, however, arguably cuts the other way. While there are provisions for observers at both the precinct and the central counting location, there is no provision for observer participation in the transportation of optical scan ballot from precinct to the central location where they will be counted. This is understandable, as it would be logistically difficult—if not impossible—to permit multiple observers to ride in the same vehicles as the ballots. Nonetheless, the ballots will be moving in the custody of perhaps a single individual before they are tabulated. The public must trust that tamper-proof seals will assure the integrity of these ballots will not have been impaired between the time they leave the sight of observers at the precinct until they enter the sight of observers at the central counting location.

As before, I do not wish to overstate the level of appropriate concern about the central counting of optical ballots. I think it unlikely that election officials will attempt, or succeed, at mischief relating to the movement of these ballots. Perhaps somewhat more possible is inadvertent error associated with this transportation. But the central counting of these ballots introduces a risk that hadn't been in the system previously, and (as I now realize) this risk extends statewide, not just in Cuyahoga County, as a result of the still-unsettled requirement that optional paper ballots be counted centrally.