State Law: Recount Rules

[Wilms]

State Recount Rules - Election Law@Moritz:
http://moritzlaw.osu.edu/electionlaw/procedures_recount07.html


State Recounts Rules - National Conference of State Legislature
http://www.ncsl.org/Programs/legman/elect/recounts.htm

[eomer]

1. Two different versions of Ohio recount statutes?

Does anyone know why the Ohio recount law from the link in the OP is not the same as the law cited by the Green Party on their recount page?

Here is the law as shown on the Green Party website:

Ohio Election Law is very clear on this point:

"The board must randomly select whole precincts whose total equals at least 3% of the total vote, and must conduct a manual count."

"If the tabulator count does not match the hand count, and after rechecking the manual count the results are still not equal, all ballots must be hand counted. If the results of the tabulator count and the hand counted ballots are equal, the remainder of the ballots may be processed through the tabulator (for optical scan and punchcards)."

(Section 3515 of the Ohio Revised Code)

http://www.votecobb.org/recount/ohio_reports/#notrandom

I cannot find the above language anywhere in § 3515 of the moritzlaw version or in § 3515 of the official version on the state of Ohio website.

§ 3515 as shown in the moritzlaw version and also as shown in the Ohio website version seems to require a manual recount of the entire county, at least if you read it literally.

Does anyone know which one is really the law and the reason for the difference?

Here is the link to the Ohio Revised Code that is used on the Ohio website:
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC
To find the recount law, click on "TITLE XXXV ELECTIONS" and then on "CHAPTER 3515 RECOUNT; CONTEST OF ELECTIONS".

[Bill Bored]

2. Yes!

I am not a lawyer but the laws in the libraries are incomplete:

http://www.legislature.state.oh.us/laws.cfm

"The acts filed with the Secretary of State's office are the actual statutory law of Ohio. The Ohio Revised Code, whether in book for or on-line is only a reference and not the official record. For more information on the Laws of Ohio, contact the Secretary of State's office at [phone]."

The Greens had this right but you can't find it in the libraries.
I wonder if this is common practice in all 50 states. In any case this is how it's done in Ohio and the law cited by the Greens seems to have been in effect at the time of the recount.

[eomer]

3. Wow! How amazingly imcompetent and irresponsible!

...for the state to provide an out of date version of its laws for the citizens to go by.

Thanks, Bill, for the info.

[Wilms]

4. I guess "ignorance is no excuse for the law".

Pretty disturbing. Thanks for correcting.

[eomer]

5. On second thought...

I take your point that the online version is only a reference and not the official record. That said, and after thinking further about it, I'm not convinced that is the explanation. Sure, it is not the official record but I find it hard to believe that it would be that seriously out of date. Not only does the SOS link to this version of the ORC, so do both the Ohio House & Senate. It may still be accurate even if it is "not the official record".

Here is another possible explanation. I found the 3% recount language here:
http://serform2.sos.state.oh.us/sos/elections/statewide/provisions_recounts.htm

Based on the informal way it is worded, this document does not seem to be part of the Ohio statutes. It seems instead to be a procedure specified by the SOS.

So until someone can point me to a version of the statutes or to a bill that contains the 3% recount language, I am not convinced it is statutory.

BTW, I also am not a lawyer.

[Bill Bored]

6. I've seen this too, but it doesn't explain Cobb's citation.

Why don't you ask the Greens?
If they made it up, I'd lose some respect for them, but the explanation I offered seems to be consistent with theirs.

If Blackwell broke his OWN arbitrary law and not actual state law, that makes him a hypocrite -- not a criminal, I guess. It's easier to believe he's the latter but given the seriousness of the charge, it bars further investigation. So ask the Greens! (Sometimes they post here.)

[eomer]

7. I think Blackwell broke the law either way.

Even if it was his ruling, he can't change it once the election has passed. At least not from what I understood from the Florida 2000 legal arguments. I believe the statement that you can't change the rules once the election has passed was part of the SCOTUS decision and therefore would be applicable to all states.

If, on the other hand, the 3% recount language has no force because it was a ruling of Blackwell and he exceeded his authority, then the statutory language that we would fall back on is even more favorable to our side, at least the way I read it. To me the statute as shown on the Ohio website either calls for a full manual recount of all precincts or allows the candidate requesting the recount to designate which precincts to manually recount. Either way we were entitled under that version of the statute to a full manual recount.

Also, I don't think the Greens made it up. I think they may have inadvertently concluded it was part of a statute when it was really part of a ruling by the SOS. And I'm not sure it is the Green Party lawyers that said this. It's on the VoteCobb website but we don't know who wrote it or where they got it.

Regarding whether Blackwell broke the law, I believe there are quite a number of ways he did so. Also, I believe this whole process by which the BOEs got rulings from him by way of private phone conversations with no official record and no recourse once King Blackwell had ruled is in no way a system that can be called the rule of law.

So I am not by any stretch arguing against the Green Party (et al) case or any other case against Blackwell. I am just trying to understand the details of the law.

[Wilms]

8. Would you run this by the Greens?

It's got my attention.

[eomer]

9. I believe I have the answer. The language is from an SOS directive.

I emailed the Cobb/LaMarche recount manager with this question and will relay any answer I receive.

In the meantime, I believe I found the answer in the report of the House Judiciary Committee Democrats (the Conyers Report).

Here is the section of the report that answers this question:

"Due to a directive issued by Secretary Blackwell, the recount does not automatically
require a hand count of every vote cast in the election.61 Each county board of elections
randomly takes a sample representing at least 3% of the votes cast and compares the machine
count to a hand count.62 If there is a discrepancy, the entire county must be hand counted.63 If
there is no discrepancy, the remainder of ballots may be recounted by machine.64"

And here is footnote 61 with the citation:

"61Secretary of State J. Kenneth Blackwell, Directive to All County Boards of Elections
Directive No. 2004-58 (Dec. 7, 2004)."

Here is the link to the Conyers report: http://www.house.gov/judiciary_democrats/ohiostatusrept1505.pdf There are many references to Directive 2004-58 in this document.

There are a couple of documents in the recount lawsuit that also reference the directive:
http://www.nvri.org/about/ohio_bonifaz_declaration_121004.pdf
http://www.votecobb.org/lib/downloads/references/2004-12-16_blackwell.pdf

I've also searched extensively trying to find a copy of Directive 2004-58 but haven't succeeded so far.

At any rate, it seems clear from reading all these referenced documents that the 3% recount language is not from section 3515 of the statutes - it is from the SOS directive.

As I indicated in a previous post, I still believe that the counties were bound by law to follow the 3% recount rules.

[Wilms]

10. There's are SoS directives in CA and MS, too.

In the CA case, it certifies a particular Sequoia VVPAT machine. But the LA County Registrar is quoted, since that directive was issued, as saying there are no certified machines. The SoS who had made the directive is the now resigned Kevin Shelley.

In MS, former SoS (he resigned to take a higher post, I think) Blunt's directive is for VVPAT. But I had to use google cache to look at it.

These directives sure seem a gray area.

[Wilms]

12. Sorry, not MS but MO - Missouri.

Dang!

[Wilms]

11. Here's another source, without the 3 percent rule.

Minority Staff
Committee on Government Reform
U.S. House of Representatives

November 2002

Summaries of State Election Procedures

Recount Procedures

Ohio

In Ohio, there is an automatic recount when the number of votes for the declared winning candidate does not exceed the number of votes for the declared defeated candidate by a margin of 0.5% or more of the total vote in a county, municipal, or district election, or by a margin of 0.25% or more of the total vote in a statewide election. Ohio Code § 3515.011.

Any losing candidate may seek a recount by filing a written application within five days after the election results are declared. §§ 3515.01, 3515.02. The applicant must provide a deposit as security for the payment of the recount costs. §3515.03. The applicant will be charged for the recount costs by precinct unless: (1) the recount results in the applicant being declared elected or (2) the total
number of recounted votes cast in a precinct for the applicant is over 4% greater than the number of votes for the applicant originally recorded. § 3515.07.

The Board of Elections must begin a recount within ten days of the declaration that prompts an automatic recount or the filing of an
application. § 3515.03.

The declared losing candidate may file a written request with the Board of Elections not to start an automatic recount; the Board must grant such a request. § 3515.03.

If a person was declared elected to an office, but a recount resulted in that person not being elected, the person may, within five days of an amended declaration of election results, apply for a recount in any precinct where ballots were not recounted. § 3515.06.

http://www.democrats.reform.house.gov/Documents/20040628121347-35775.pdf

[eomer]

19. Confirmation that the Ohio 3% recount language is from an SOS directive.

Lynne Serpe, the Cobb/LaMarche recount manager, confirms that the 3% recount language comes from the SOS Directive, not from the statute.

I exchanged a couple of emails with her before finding out she was on vacation. My thanks to her for responding when she should have been getting some well-deserved R & R.

[KaliTracy]

16. they didn't make it up because I've seen it in a legal document at the

time so many people were arguing here about the recount... unfortunately I can't refind it right now. Actually, I'm thinking it was originally from the SOS document -- I might be wrong, but I was thinking that it was a lot easier to research back in December when I kept drawing up blanks last week.

edit: clarity

[KaliTracy]

15. I found it on a simple google search when they were doing the recount but

didn't save the website -- it had a lot of the technical information -- when I tried finding information last week I kept coming up with blanks (which doesn't mean anything except that I wasn't asking the right questions in my search -- in effect -- that I was drawing up blanks. My point is there is information out there. I hope someone was able to get it to you.

[eomer]

13. Attorneys are well aware of where the 3% recount language comes from

Just so everyone is clear, and to answer Bill's comment about losing respect for the Greens if they got this wrong, the attorneys (Richard Kerger for the Green Party and John Bonifaz for NVRI) are well aware of where the 3% recount language comes from. We can tell this from their documents filed in the Yost v. NVRI case.

The reference to the 3% recount language on the votecobb.org website is just a bit confusing on the source but the lawyers have it right. Not a big surprise since these guys are obviously very sharp.

[KaliTracy]

14. it seems like they purged some things on line -- i was looking for the

State information, too about a week ago -- got all kinds of sections except the Recount section.....

[Iceburg]

17. Try this link to the anderson online documents

http://onlinedocs.andersonpublishing.com/oh/lpExt.dll/PORC/1633b?fn=document-frame.htm&f=templates&2.0#

[Amaryllis]

18. Oregon requires all hand recounts.

[Iceburg]

20. Amaryllis, are you from Oregon? If so, I have a question ...

I am election consultant, conducting historical research on the procedural aspects election delivery, and I came across information regarding the procedural problems of the 1968 general election in Klamath County. I realize that 1968 was a generation or two ago and you were very unlikely to have been around at that time, but perhaps you might know some of the facts surrounding the incident in which approximately 25% of the ballots were mis-tabulated due to a procedural problem.<1>

As I understand the story, Klamath was using Votamatic machines at the time and the state required that the candidates’ names be rotated so as not to give any candidate an unfair advantage. Further, the state at that time did not prescribe to the use of machine readable precinct-header cards (used in the tabulation process).

I wrote Linda Smith, the current clerk of the county today in hopes of a) confirming the story and b) getting more details as to what procedural flaw led to the mistabulation.

What I am trying to pinpoint is what specific procedural flaw led to the mis-tabulations in ’68 – was the mix-up caused by:

a) incorrect set-up of the Votamatics (i.e. the wrong ballot style for the precinct) ;

b) mis-placed precinct header cards; or

c) a tabulator program flaw

Secondly, I would like to know how the problem was discovered, and whether it was discovered prior to certification.

Most lay people underestimate the complexity in the planning and delivery of elections, and therefore underestimate the ease of which purely accidental errors can occur. As citizen in a very progressive state, I’m sure that you are aware that many states today still use Votamatics and still prescribe to less than adequate procedures to control accidental mistabulation.

I would very much appreciate any facts you can provide on the 1968 incident, even if it is to simply confirm whether this incident did indeed happen, or whether the story as told is pure “urban election lore”.

---------------------------
Footnote
<1> Counting Votes by Ronnie Dugger
http://www.newyorker.com/archive/content/?040920fr_archive01

[Amaryllis]

21. I have no idea about that. I can tell you that we have been very

impressed with the system overall in Oregon; there are a number of reasons why it works well here, but may not work as well in other states.We still have major concerns about the tabulator/scanner issues, though. Many counties are either already or moving toward doing their own programming, but they are still using vendor software.