Tuesday, December 05, 2006


Questions raised about the scope of the OH-15 recount

The sampling of the ballots got underway this morning. But the scope of the recount is being questioned by some elections experts. If the recount shows a pattern of differences with the offficial numbers, the BOE could order a recount of all ballots.

Although county officials assert they could only do the sample recount of 3% of the vote, a Dispatch story today reported that the Franklin County BOE was going to go above and beyond the call of duty by agreeing to an initially review 10% of the ballots, not just 3%. Indeed, it seemed like the Bill Anthony and the FCBOE is willing to bo the extra mile.

But long comes Ned Foley, Election Law Director at OSU's Moritz College of Law, who makes a convincing argument that because the recount involves a federal office the 3% minimum not only does not apply, but that the applicable federal law suggests that ALL ballots must be recounted:
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.
But after making a cogent case for a 100% recount, Foley raises some serious doubts about whether the FCBOE is capable of doing a broader review 220,000+ ballots cast in the OH-15 before the "safe harbor date" of Dec. 12 (or Dec. 15, if a permissable 3-day extension is granted):
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.

. . .

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.
Foley also suggest that this raises ominous signs for 2008 when a statewide recount of votes cast in a presidential contest could be required.

Regardless, it makes sense to us that Kilroy's campaign should NOT be agreeing that 3% or 10% fulfill statutory requirements of the recount.


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