Rep. Clyde shares public comments on SOS's vote counting directive
State Rep. Kathleen Clyde (D-Kent) today issued the following statement about the Secretary of State finally complying with the law requiring a public comment period for proposed directives:
“Public comment on directives is required by state law and I am pleased to see the secretary of state is finally following that law. Input from the public can improve the effectiveness and accuracy of directives as well as the quality of service to voters. I encourage citizens and organizations that represent Ohio voters to review and submit comment on the proposed directives that are now posted. In addition, I encourage Secretary Husted to seek public comment on all existing permanent directives to ensure their validity.
“The comments I submitted focus on using common sense in vote-counting and following federal and Ohio laws. These laws require that ballots be counted unless it is impossible to determine a voter’s intent and that technical errors must not disqualify a ballot. I also warn of a potential Bush v. Gore problem because the proposed directive sets up unequal treatment of ballots among counties. The proposed directive will let some counties count ballots with four fields completed on the ballot envelope and let other counties reject ballots unless five fields are completed. That would be unconstitutional.”
Directives are issued by the secretary of state’s office and direct boards of elections on the detailed requirements of Ohio election law. ORC 3501.053 requires that all permanent directives be subject to public comment before adoption and that no directive shall become permanent or remain valid unless it is subjected to public comment.
Rep. Clyde’s memo with public comments on the Canvassing the Votes proposed directive follows.
75th House District
MEMORANDUM
TO: Secretary of State Jon Husted
Ms. Carrie Kuruc, Sr. Elections Counsel
FROM: State Rep. Kathleen Clyde
DATE: August 28, 2015
SUBJECT: Feedback on Directive “Canvassing the Votes”
The following feedback springs from these general voting rights principles:
- ORC 3505.28 clearly states that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter's choice.”
- Voting laws should be construed and administered in the way that most favors the voter and provides good customer service to the voter.
- Doubt should be resolved in favor of the voter.
- Immaterial paperwork errors should not cause a voter’s ballot to be thrown out or individual votes to go uncounted.
The objective of this feedback is to avoid future conflict and to save Ohio taxpayers the cost of needless litigation.
Specific feedback on the text of the directive:
- 1. Detached stubs are a technical error that should not cause absentee ballots to be thrown out.
Page 1, Sec. 1.01 (a) – This section includes “Determining whether stubs are still attached.” as part of processing absentee ballots. This part of the directive should specify that the perforated stub will be considered still attached if it is taped or otherwise attached by the voter to the ballot or if it is included with the ballot in the absentee ballot return or identification envelope.
The law regarding the sealing of ballot envelopes is interpreted reasonably by the Secretary of State’s office by allowing election officials to seal the ballot envelope for the voter and even to place the ballot inside the identification envelope for the voter before sealing it. Similarly, the law on perforated stubs should be interpreted in the light most favorable to the voter and with common sense. This directive should reflect that clear instruction as it does for sealing envelopes.
What is especially confusing about ballots stubs is that in some circumstances stubs are required to be torn off of precinct-cast ballots, while they are required to stay attached to absentee ballots. For example, in Cuyahoga County precincts, the ballot stubs must be torn off. This contradiction surely contributes to the public’s confusion around ballot stubs.
- 2. Uniform statewide rules are required for vote counting.
Page 2, Sec. 1.01 (b)(3.) – Total uniformity may not be appropriate at the vote-casting stage for drastically different counties with different needs. But uniformity is essential at the vote-counting stage where county differences do not matter. This section of the directive should instruct boards to use a single uniform statewide standard in counting absentee ballots. As currently written, there will be some counties allowing birth date to be omitted and others that require birth date to appear for a ballot to be counted. A single standard should require all ballots with the other four required fields completed to be counted. This will help the state avoid litigation over a classic Bush v. Gore problem: unequal treatment that affects counting votes.
- 3. Count absentee ballots accepted by precinct election officials on Election Day.
Page 2, Sec. 1.01 (b) – Absentee ballots that are dropped off at polling locations should be counted either in the unofficial canvass or the official canvass. The law states that absentee ballots must be returned to the director of the board of elections. In effect, this means to staff of the board of elections working under the director. When an individual drops off her absentee ballot at the board of elections, she is not required to hand it directly to the director herself. She hands it to the election official on duty at the board. Similarly, voters must be permitted to deliver their ballot to the director of the board of elections through the board’s precinct election officials. There is no valid reason or requirement in the law to reject these ballots that have been delivered into the safe care of election officials to be delivered to the director. This should be made clear in the directive.
- 4. Voters’ ballots and the votes on those ballots must be counted unless it is impossible to determine the voter’s intent.
Page 3, Sec. 1.01(c)(2.) and Page 10, Sec. 1.02(a)(2.) – Categories of ballots that may be remade should include double-bubble ballots, those where a voter both marks an oval for a candidate and also writes in the same candidate’s name. ORC 3505.28 clearly requires that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter's choice.” The command of this statute to favor voters is not mentioned in the directive. Instead, only a limited grant of authority to remake ballots with defects is laid out in the directive. The directive should make clear the requirement that ballots with double-bubble votes must also be remade.
Double-bubble votes can appear on ballots cast absentee or in the precinct on Election Day. Some optical scanner counting machines may not give the voter adequate notice of a problem with a specific vote on the voter’s ballot. Because of this inadequate notice, all ballots should be checked for double-bubble votes. This was done in 2008 and over 12,000 double-bubble votes were counted as a result.
- 5. Voters whose ballots are rejected should have their Voting History accurately recorded and be notified that their ballot was rejected.
Page 20, Sec. 1.04(e) – The directive instructs election officials to record that individuals voted when their ballots were actually rejected. Civilian, military and overseas voters whose absentee ballots don’t get postmarked or are missing a required completed field and are rejected are not notified of this rejection and will in fact be listed in the public record as having voted. Provisional voters whose ballots are rejected when they are not directed to the correct polling location will not know their ballot didn’t count and will be deceptively marked as having voted. Voters need to know the truth about how their ballots are being handled. The directive should require that voters whose ballots are rejected should be recorded using a field other than Voter History. For example, a new field could be used such as Vote Attempted or Vote Rejected to record the voter’s activity and allow the public record to reflect accurate information about who actually voted. Voters whose ballots are rejected should also be notified of that rejection by the boards of election. This will educate voters and improve vote-counting rates in Ohio.
This memo does not purport to fully and thoroughly analyze every section of the directive. Its only purpose is to provide some feedback on its major provisions.