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Ohio: Hand Count Begins in Congressional Race PDF  | Print |  Email
By Warren Stewart, VoteTrustUSA   
November 28, 2006

Problems with ES&S iVotronic Voting Machines Plagued Election - Candidate Questions Disqualified Provisional Ballots


With incumbent Rep. Deborah Pryce’s margin of victory over challenger Mary Jo Kilroy down to less than ½%, Ohio’s 15th district election is headed for a recount. Only 1,054 votes separated the two candidates after provisional ballots were counted. Rep. Pryce has, of course, already declared victory, but Ms. Kilroy has not conceded.

The largest county in the 15th District is Franklin County, which uses the same ES&S iVotronic voting machines that have sparked a legal challenge in Florida’s 13th District. Dozens of reports of election problems were reported to the Election Incident Report Service on Election Day, including several voters who complained that either Kilroy's name was not on the ballot or the entire Congressional race was missing. There were also reports of voters' choices not appearing on the review screen at the end of the voting process.

According to Ohio law, county officials are required to hand count 3 percent of the ballots and run the same ballots through machine scanners. If the two counts match, the remaining ballots will be recounted by machine. If the hand and machine counts do not correspond, all ballots will be counted manually, a situation that has not occurred before.

Though Ohio requires its touch-screen voting machines to include a voter-verifiable paper audit trail, and the audit trail serves as the official ballot, suggesting that the recount would involve a hand count of the audit trail for each voter who voted on a touch screen machine. However, Stephen Heufner of Moritz Law School of Ohio State University has noted that a directive from the Ohio Secretary of State’s office appears to adopt a different interpretation.
The directive, No. 2006-50, instructs local election officials to manually inspect the VVPAT rolls from only a sufficient number of whole precincts to represent 3% of the total vote cast, and then to confirm that the individual votes recorded on each paper roll match the summary total printed at the end of that roll. The directive then provides: “If there is no difference between the manual record and the VVPAT summary, the VVPAT summary for every voting device shall be presumed accurate.” According to the directive, the manual recount then would proceed by manually adding only the VVPAT summaries from each VVPAT roll, rather than by manually counting each voter’s selection on all VVPAT rolls.

The question of whether this VVPAT recount process conforms to the statutory requirement may end up in court. Obviously, it would be administratively efficient to rely on the VVPAT summaries provided they match the individual votes in a 3% sample. But it is not hard to imagine some kinds of voting machine fraud or error that could go undetected in a 3% sample and yet affect the outcome of an election.
According to The Columbus Dispatch, Kilroy and her campaign advisers may also challenge the disqualification of some 2,600 provisional ballots from Franklin County’s provisional ballots in the tally. Kilroy may claim that poll workers failed to comply with an obligation to direct these voters to their correct precinct.

As Ned Foley, also of Moritz Law School observed:
“…there is a basic procedural question in Ohio about where she might bring this kind of challenge. Although Ohio law would permit a candidate for a state office—Governor, representative in the state’s legislature, and the like—to go to state court to contest the official outcome of the election on this basis, a change in state law earlier this year precludes the availability of this kind of state-court challenge for candidates to a federal office, including one of the state’s delegation to the U.S. House of Representatives. Ohio Revised Code § 3515.08, as amended by HB3, expressly states: “The nomination or election of any person to any federal office . . . shall not be subject to a contest of election conducted under this chapter [which otherwise provides for such contests].”

Instead, this section of Ohio law confines a candidate for federal office, like Kilroy, to whatever remedies may be available under federal law: “Contests of the nomination or election of any person to any federal office shall be conducted in accordance with applicable provisions of federal law.” Because challenging the rejection of provisional ballots would not be part of the state’s automatic recount process that has been triggered for this race—and this point applies whether the automatic recount examines 3% or 100% of the VVPATs—Kilroy may be consigned to contesting the election in Congress itself if she wishes to dispute the disqualification of provisional ballots.
A spokesman for the Secretary of State’s office said that county officials will begin the recount on Tuesday or Wednesday and complete it within 10 days.
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