OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Timing is Everything

Today is four weeks after Election Day, and the day on which the recount for Ohio’s 15th congressional district is scheduled to begin. If this year were a presidential election, next Tuesday would be the so-called “safe-harbor deadline,” the date by which a state must resolve all controversies over its choice of presidential electors if their Electoral College votes are to be binding on Congress. In fact, next Tuesday happens to be the sixth anniversary of Bush v. Gore, as Election Day both this year and in 2000 fell on November 7, and Bush v. Gore ordered an end to the recount in Florida on December 12, 2000, precisely because that date was the safe-harbor deadline. As part of Ohio’s overhaul of its election code earlier this year, a provision now requires any recount in a presidential election to be complete by this safe-harbor deadline. (The provision is Ohio Revised Code § 3515.041.) It would be an interesting test to see if the recount of Ohio’s 15th congressional district could be finished in just one week. Because it is not a presidential race, state law gives local officials three extra days, until Friday, December 15 (§ 3515.03). If local officials do get this congressional recount done on time, it likely will be because they recount only 3% of the Voter Verified Paper Audit Trails, or roughly 6,600 VVPATs, rather than all 221,156 ballots. Were they to review manually each one of these ballots in a single week, they would need to count 31,593 of them per day, or 1,316 per hour working round the clock—without even allocating any time for double-checking or resolving discrepancies between this manual count and the initial machine count. [Update (8:29am): This morning's Columbus Dispatch reports that the Franklin County Board of Elections will recount 10% of VVPATs in the OH-15 congressional race, or almost 20,000 ballots. Director Matt Damschroder is quoted as saying, "It will give us greater opportunity to test and prove the accuracy . . . of our new system."] As my colleagues and I have discussed previously, it is not at all clear to us that it is permissible under state law for local officials to review only 3% [or 10%] of VVPATs rather than all of them, despite the obvious administrative desirability for this more limited review. The part of the elections code governing recounts provides that any candidate may apply “for a recount of the votes cast at such election in any precinct” (§3515.01) and that the Secretary of State must order a recount “in a district election” when the margin of victory is less than one-half of one percent (§3515.011). These two provisions regarding requested and automatic recounts clearly contemplate the recounting of all ballots rather than just a fraction of them. More to the point, another section of the code specifies the procedures for conducting both permissive and mandatory recounts (§3515.04), and states that “the board of elections, in the presence of all observers who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them,” not a portion of them. Likewise, still another section provides: “Upon completion of the recount of the ballots of all precincts listed in an application for a recount . . . or in the case of a [mandatory] recount as provided in § 3515.011,” the board shall file an amended return indicating any change in the results. The upshot of all these provisions would seem to mandate the recounting of all ballots in a congressional race where either a candidate puts up the money for a recount of all precincts or an automatic recount of the race at the government’s expense is required because of the narrow margin of victory. Because a separate section of state law makes the VVPAT the “official ballot to be recounted” (§3506.18), a recount of all ballots in a race would appear to mean a recount of all VVPATs. To the extent that there is sufficient ambiguity in these statutes to permit officials to recount only 3% [or 10%] of VVPATs as a part of a government-funded automatic recount, presumably a willing and well-funded candidate could moot the point by putting up enough money to cover a candidate-requested recount in all precincts. In other words, even though Mary Jo Kilroy is entitled to an automatic recount under state law by virtue of Deborah Pryce’s narrow margin of victory, Kilroy could insist on a recount of all precinct—not just the 3% offered by the government—if she were prepared to pay for it. Of course, if the 3% [or 10%] sample produces a discrepancy, the board of elections may end up having to review all the VVPATs at its own expense. Either way, is the board ready to manually recount 220,000 VVPATs in a single week? When one considers that a recount of a presidential race in 2008 would be statewide, the challenge of conducting the recount in a single week seems all the more daunting. The entire state would be at the mercy of its slowest county. Therefore, even if Franklin County were able to review all its VVPATs in time, the state as a whole would miss its safe-harbor deadline if Cuyahoga County were unable to do so. No wonder Cuyahoga County is thinking of switching to optical scan machines before 2008. Franklin County, are you sure you want to be the state’s largest county with VVPATs in 2008? Of course, if it were necessary to conduct a statewide manual recount of optical-scan ballots, that task would also be exceedingly difficult to complete in a single week. Optical scan ballots may be easier to review manually than VVPATs, which are spooled like adding-machine tapes. But a manual review of 6 million ballots is a scary prospect, no matter how user-friendly these pieces of paper. All this suggests that Ohio needs to figure out a way to complete its initial counting of the ballots more quickly so that recounts don’t begin four weeks after Election Day. Ohio law is generous in giving voters 10 days to provide their local boards with proper ID if they did not have it on Election Day. Perhaps the state needs to consider cutting back on this amount of time. Similarly, the state gives local boards three full weeks to complete their initial count of all ballots, including provisionals and absentees. While it is desirable to give local officials ample time to determine the eligibility of provisional voters, it would leave more time for conducting manual recounts if boards could complete the initial count in two weeks. Doing so, of course, would be easier if the number of provisional ballots were reduced. This year saw an upsurge in the number of provisional ballots cast in Franklin County: about 21,000 or 5.5%, compared to 14,462, or 2.7% in 2004. One important goal for 2008 would be to bring that number back down. Ohio is hardly alone in having a vote-counting process that makes it virtually impossible to complete a full statewide manual recount, if triggered, by the safe-harbor deadline. Yesterday, Vermont began a statewide recount of its Auditor’s race, which might not be complete “until the first of the year,” according to one county official quoted in a local newspaper. Similarly, Pennsylvania has not yet begun a recount of a key race on which control of the state’s House of Representatives rests. And if the current fight in Florida over 18,000 undervotes were occurring in the context of a presidential rather than congressional race, that state again would be unable to resolve the controversy by the safe-harbor deadline. The Florida fight is causing Congress to consider mandating VVPATs. While there are other reasons to be cautious about adopting such a requirement, as my colleague Dan Tokaji has recently explained, one especially strong reason for caution is that there may be insufficient time to make this requirement meaningful in a presidential election, unless Congress also changes the safe-harbor deadline and the date on which the Electoral College meets. It is certainly laudable that the public debate over voting technology is turning to what sort of technology works best in the context of a recount, not just what technology facilitates the casting of ballots on Election Day. But the design specifications of a recount-suitable technology must take into account the severely limited amount of time there exists to conduct a recount in a presidential election. Simply put, there is no point in requiring voting machines to produce spools of paper if there is not enough time for election officials to unravel these spools and examine them. When Congress or any state legislature revisits the issue of voting technology, it should do so in the context of a beginning-to-end, from registration to recount, review of the timetable of the voting process. As already indicated, the amount of time available for recounts is interconnected with the amount of time it takes to complete the initial count of ballots, including verifying the eligibility of provisional ballots. Moreover, as I’ve disussed elsewhere, the amount of time needed for verifying the eligibility of provisional ballots is interrelated with the amount of time election officials have before Election Day to verifying the accuracy of their voter registration databases. Notwithstanding the decision to cut off the recount in Bush v. Gore, neither Congress nor state legislatures have attempted to consider the schedule of the voting process as a whole, to determine whether an appropriate amount of time is devoted to each component part, so that the entire process can be completed by the safe-harbor deadline. Rather, since 2000, a series of reforms have been adopted at the federal and state level without regard for their consequences in terms of this overall schedule: new voter identification requirements, new provisional voting procedures, new VVPAT requirements. Each of these reforms might seem like a good idea to the legislature that adopts it, but taken together they create a process that cannot be completed in the total amount of time available. Recounts, because they come at the end, inevitably get short-circuited in a presidential election. Yet recounts are an exceedingly important part of the process in close elections that warrant them. Presidential elections being the most important of all, the ability to conduct a recount in a presidential election where the margin of victory is narrow enough to require one would seem to be a paramount objective of our electoral system. Presently, however, our system is structured in such a way as to preclude them from occurring, at least effectively. Recounts, especially in presidential races, are no joke. Yet with recounts, as with joke-telling, timing is everything.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

more commentary...

In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

more EL@M in the news...

Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

more info & analysis...