The Canvass: States and Election Reform
A Newsletter for Legislatures
(Full Newsletter in PDF) (Engaging State Legislatures in Election Reform Homepage)
Tennessee and Ohio Enact Major Bipartisan Election Reform
Tennessee: Tennessee's legislature recently passed the Tennessee Voter Confidence Act (House Bill 1256) with strong bipartisan support. In the House, the bill passed 92-3, and in the Senate it passed unanimously 33-0. The bill was signed into law on June 5, 2008 and follows from recommendations made in a report released earlier this year by the Tennessee Advisory Commission on Intergovernmental Relations. Sponsored by Representative Gary Moore and Senator Joe Haynes, the bill requires all of the state's counties to convert to precinct-based optical scan voting by November 2010. It also requires that any voting machine bought or leased after January 1, 2009 be able to create a voter-verified paper trail, which can be used in recounts and audits. By 2010, all counties will have to have voting machines in place that create a paper trail. Importantly, the bill also provides that each election commission shall conduct mandatory hand count audits of the voter-verified paper ballots of at least the top race in federal, state and local elections. The hand count audits would include 3 percent of the votes cast prior to the election by absentee and at in-person early voting sites. The audits would be conducted in at least 3 percent of the precincts, comprising at least 3 percent of voters in the election. The audit provision details the random selection of precincts, the timing of the audits, and the public announcement of the results of the audit. Implementation of the legislation will cost the state approximately $9.54 million.
Ohio: Last October, Ohio, like many states, anticipated a potential shortage of poll workers in 2008. Ohio State Representative Larry Wolpert had an idea -- mobilize qualified high school and college students to mitigate the problem. The Columbus-area legislator had already authored a law permitting one high school senior to serve as a poll worker in each precinct. Given the enthusiastic feedback received from election administrators and his constituents, he decided to up the ante; he introduced House Bill 350 (HB 350) to increase high school poll workers per precinct and to expand the program to include certain college students.
HB 350 passed the Ohio House 95-0 on April 2, 2008. The Senate expanded the House version transforming it into a major election reform bill, which passed the House 90-6 and the Senate 32-0. The bill's transformation and the events behind the legislation offer an interesting perspective on the collision between legislative and executive authority in election administration.
Background: As reported in the April issue of The Canvass in December 2007, Ohio Secretary of State Jennifer Brunner urged immediate conversion to optical scan voting systems in response to a study commissioned by her department. The study found that Ohio's touch screen (direct recording electronic or DRE) machines were unacceptably vulnerable to malfunction and tampering. Secretary Brunner recommended that optical scan voting systems with centralized tabulation would eliminate vulnerability created by the multiple hands used to transport DRE memory cards. Optical scan systems use paper ballots marked by hand. Completed ballots are then fed into a computer for tabulation. (These systems resemble the standardized test model used in many schools.)
The security problems discovered in Ohio's DREs were particularly disturbing because Ohio's presidential primary was scheduled for March 4, 2008 -- leaving the state's election officials just over two months to respond. Realizing the hurdles involved, Secretary Brunner used her broad administrative authority to order that Ohio's 53 counties using touch-screen machines provide paper ballots to any voter not wishing to cast a ballot on the DRE. She further ordered counties to print back-up paper ballots equivalent to 10 percent of the people who voted in the last presidential election.
Several counties balked. Union County in central Ohio challenged Brunner's mandate to print back-up ballots. Arguing that it would cost the county's taxpayers $68,000 to comply, Union County filed suit in county court and won a restraining order, which was subsequently overturned. The Ohio Supreme Court refused to hear the case. In Ohio, the Secretary of State possesses significant powers to preempt local decision making by issuing administrative directives having the force of law. The Secretary also can remove for cause the executive leadership of local Boards of Elections, their board members (2Rs and 2Ds), or refuse to reappoint certain individuals. She also casts tie-breaking votes, which she did when Union County's Board deadlocked on the paper ballot issue, which in turn prompted its lawsuit.
The March elections went forward, albeit with multiple problems. Bomb threats, ballot shortages, storms, floods, power outages and higher than expected turnout delayed final returns until well into the day after election day. In Cuyahoga County, many voters complained their privacy was compromised as they turned in their paper ballots. Optical scan ballots were collected at the polls, placed in boxes, and delivered to a county warehouse where they were centrally tabulated using 15 high speed scanners. Brunner released a report on the election, which she evaluated as a "vast improvement" in comparison to the presidential primary election in 2004. Full report here: Ohio 2008 Primary Report.
Following the March primary, Brunner continued to push for optical scan systems in every county and asked the legislature to fund the $64 million conversion plan saying she would not require counties to switch unless state or federal money paid for it. Like most states, Ohio has budget problems with a predicted shortfall of over $700 million. With state Medicaid expenses exceeding expectations and revenues on the decline, the Republican-led legislature strongly opposed the plan. Senator John Carey, chair of Senate Finance Committee, said the debate came down to fiscal policy:
Many counties made the decision to purchase costly new DREs to comply with the Help America Vote Act (HAVA) of 2002 and Ohio's voter-verified paper audit trail requirement. The DRE machines have performed well with no documented incidents in Ohio. The Board of Elections Members I've spoken with felt that it just didn't make sense to throw them out. Even if we had a surplus, it would not be a wise use of the taxpayer dollars to spend millions to purchase optical scan machines.
Unable to justify the cost of replacing DREs throughout Ohio, the legislature began to work on a comprehensive piece of legislation, that would have minimal fiscal impact and address other problems with the Ohio election process. The legislature saw a solution in enacting Representative Wolpert's HB 350.
The Provisions in HB 350: In addition to authorizing more students to serve as poll workers, HB 350 makes major changes to Ohio's election system. Secretary Brunner had advocated uniform conversion to optical scan systems, but HB 350 essentially preserves existing law giving county election boards control over choice of voting systems. The bill requires that any voting equipment certified or acquired after December 1, 2008, meet the most current voting system standards promulgated by the U.S. Election Assistance Commission. Voting equipment already in use would be subject to 2002 standards set by the Federal Election Commission.
HB 350 further provides that all paper ballot and electronic voting results be tallied at the precinct level. This was a somewhat controversial provision. Senator Teresa Fedor, a member of the State and Local Government and Veterans Affairs Committee that drafted the bill, offered an amendment to allow three counties (Cuyahoga, Mercer and Van Wert) to centrally count ballots using optical scan systems. Her amendment failed 5-2 in committee on a party line vote. It similarly failed on the Senate floor. This was "a very sad outcome," she said, because her amendment would have protected those counties from a sizeable unfunded mandate. The three counties now must purchase scanners for each precinct to comply with HB 350. In Cuyahoga County, Ohio's largest, this will cost approximately $13.4 million. Senator Fedor described HB 350 as a "tourniquet" remedy to prepare Ohio for November's critical elections. She argues for a federal solution to election reform:
Just because Congress threw money at the problem to replace punch card machines with new touch-screens (using HAVA funds), it doesn't mean the problem is fixed. Congress needs to get the Election Assistance Commission (EAC) moving toward clear certification guidelines; we'll just have to wait until that happens before federal dollars will become available to replace touch-screens with more reliable optical scan systems.
HB 350 also provides that ballots and results must be officially sealed and delivered to the election board by a bipartisan transport team -- the precinct's presiding judge and an oath-sworn employee or appointee of the board of elections who is a member of a different political party than the presiding judge. The legislation amended absentee ballot law to provide that absent voter's ballots and military absent voter's ballots be counted as long as they are postmarked prior to election day and received within ten days.
Sources in Ohio note that HB 350 was designed in part to protect Ohio's county election officials from abrupt and sweeping election changes by the Secretary of State. According to a recent report by Cleveland State University's Center for Election Integrity, roughly half of Ohio county Boards of Elections have only two employees, which could compound problems in reacting to swift administrative changes and may have made those counties more dependent on private vendors for tech support. HB 350 sets bright line limits for the Secretary's authority to issue directives. First, it mandates that the Secretary establish a process to allow public review and public comment of proposed permanent directives. Secondly, it prohibits the Secretary from issuing a permanent directive during the period beginning 90 days prior to the election and ending on the 40th day following the date of election. Temporary directives may only be used during the period beginning 90 days prior to election day and ending on the 40th day following the day of election. Finally, the bill makes the Ohio Board of Voting Machine Examiners a bipartisan panel. The panel's composition was changed from three to four members with two members appointed by the Secretary and two by the General Assembly.
Impact: HB 350 represented an effort to restore confidence in DRE systems through federal certification requirements and greater bipartisanship in election administration.
Senate President Bill Harris emphasized the overwhelming bipartisan support behind the bill:
Through House Bill 350, we made a number of changes that will help to maintain the bipartisan integrity of Ohio’s system and to ensure a smooth election this November. HB 350 required that there be a Republican and Democrat present when ballots are being transferred to the Board of Elections and brought partisan balance to the Board of Voting Machine Examiners. The legislation ensured that all permanent directives issued by the Secretary of State will have the opportunity for public review and comment, while preserving flexibility for the Secretary of State to respond to any issues that may arise around an election. Most importantly, we ensured that as long as they are postmarked prior to Election Day and received within 10 days after Election Day, absentee ballots from Ohioans serving their country overseas will be counted.
After having encouraged voluntary post-election audits, performed by 11 counties in March, Secretary of State Brunner is now working to make post-election audits uniform in all Ohio counties. According to Patrick Gallaway, Secretary Brunner's Director of Communications, the office is also "requiring each county to submit a security mitigation plan that outlines how voting equipment will be managed securely and monitored." Additionally, she is working to promote no-fault absentee voting and back up paper ballots as a way to prepare for record high turnout in November. "Boards of Election are reimbursed for the back-up paper ballot expense," he said. She estimates that as many as 80% of registered voters could turnout on November 4 at a time when the nation will once again have the Buckeye State under a microscope. Ohio will undoubtedly be a key battleground in this year's presidential election. Ohio has picked the winner in every presidential election since 1964. Prior to that, its choice differed from the Electoral College winner only twice: 1944, when it favored Dewey over Roosevelt, and 1960, when it selected Nixon over Kennedy. |
