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Will Some Ohio Polling Places Be Inadvertantly Shut Down on Election Day?elections, reform, problems, research, policy, legal
Many of us are seriously worried about Ohio's March 4 primary. I highly recommend Ned Foley's article, "Administering the March 4 Primary in Ohio", which lists five things we should all keep our eyes on. In the 8th paragraph of Prof. Foley's article, he mentions a bill that the Ohio House was poised to pass on Tuesday. That bill was SB 286, and it did pass on Tuesday with little opposition.
Prof. Foley talks about concerns he has with a particular feature of the bill: a new practice allowing mid-day pickups of ballot materials at the polls. Foley is primarily, and appropriately, concerned with chain of custody issues; that is, the procedures that ensure ballot materials make it from the controlled environment of the polling place to the controlled environment of election headquarters without any additions, subtractions, modifications or damage.
However, there are other aspects of this bill that are troubling. For example, on the issue of mid-day pickups of ballot materials, neither the legislature nor the Ohio Secretary of State seem to fully understand what this process would entail. In order to hand-off ballot materials at mid-day, pollworkers will essentially have to do all the things they normally do at the close of polls. Most importantly, they'll have to reconcile the number of ballots cast up to that point with the number of signatures in their pollbook. This means that the pollbook will be entirely unavailable to voters who arrive at the polling place during this process. Since the various steps of ballot accounting take on the order of an hour (maybe two), this means that the polling places in Ohio that do midday pickups will be closed to voters for this amount of time. SB 286 makes no provisions for the exact procedures involved with this; it appears that polling places in Ohio using central-count optical scan will be shut down for a period of time on 4 March.
One would think that the OH SoS would weigh in and issue a directive about the procedures involved with a midday pickup and chain of custody procedures. In order to keep the polling places open, the OH SoS could specify that two copies of pollbooks be kept so that one is operational during the midday ballot accounting. Or a shadow team of pollworkers could be employed to do the ballot accounting while the pollworkers continue to allow voters to vote. To date, the only thing from the OH SoS' office is a directive (Directive 2008-25) that emphasizes the seriousness of chain of custody, lists some example best practices and provides a chain of custody log (form). We're still waiting to see if a directive is issued with a title like, "Procedures for Midday Pickup of Ballot Materials".
As others have pointed out (See Paul Gronke at Election Updates: Foley's essay on Ohio), there are more problems with SB 286 than just this issue of midday pickups. Here's one example: section 3506.21(A)(3) says:
"If automatic tabulating equipment detects that more marks were made on an optical scan ballot for a particular office, question, or issue than the number of selections that a voter is allowed by law to make for that office, question, or issue, the voter's ballot shall be invalidated for that office, question, or issue. The ballot shall not be invalidated for any other office, question, or issue..."
This appears to ensure that if one contest on a ballot is overvoted (has more choices made by the voter than are allowed for that contest), the other contests on the ballots will still be counted. However, optical scan equipment is notorious for detecting stray marks as "valid" marks. In my own precinct in November 2006, our precinct-count optical scan machines (the Sequoia Optech Insight) detected a single dot, produced when a voter accidentally dropped the pen on her ballot, as a valid vote. This provision, unless it were amended to anticipate voter mistakes, smudges, stray marks, etc., will undoubtedly disenfranchise voters who's votes would otherwise be counted using Ohio's standards for determining voter intent, required by the Federal Help America Vote Act of 2002, outlined in Directive 2006-76.
Anyway, SB 286 is emergency legislation... but it's particularly bad emergency legislation!
[UPDATE 2008-02-21T14:48:09]: Added link to Paul Gronke's post at Election Updates... Sorry, Prof. Gronke, that link should have been in there when I posted this!