'Tis the season - not just the holiday season but also the post-election season of recounts. If your focus has been holiday parties, you may not have realized that in Indianapolis alone there were three election recounts conducted this year - the Elrod/Mahern house race, the Marendt/Bennett race for Warren Township Trustee and the Thompson/Robbins race for a spot on the Perry Township School Board. In addition, there were recounts around the state including two others for the Indiana house (a fourth was withdrawn), one for the U.S. Senate (the Libertarian candidate requested a partial recount) and for various other races around the state, e.g., the race for Posey County Clerk.
I was the attorney for the Thompson/Robbins Perry Township school board recount, a recount that gained additional consequence after the school board decided to terminate the contract of the school system's superintendent. My client held onto her election day victory and, being a school board race, it was nonpartisan which meant politics played no role in the recount process. However, as one who has been through two recounts (one of which was my own) and an election law junkie (I admit to watching the streaming video of the Indiana Recount Commission hearings which is something akin to watching paint dry if you are not interested in election law), I think we will see the number of recounts and contests continue to increase.
First of all, the new voting technology in Marion County means that we now have an actual basis upon which to challenge an election. Until 2003, we voted with those big voting machines that we entered with the hope that, after closing the curtain, we would remember how to use the machine, because, after all, we only used them once or twice a year, provided it was election year. The old voting machines, unlike our new optical scan machines, did not leave a paper trail of votes. We voted in the blind faith that the machine was functioning properly and would properly read and record our vote.
Changing political demographics, particularly in Marion County, has led to closer races. In deciding whether to pursue a recount or contest, the candidate has to be close enough to believe that an examination of the ballots and documentation might lead to a different outcome in the election. Now that we have a paper trail in Marion County, that trail, coupled with close elections, leads to more challenges. With more recounts and contests, we need to develop a body of Indiana law that ensures a voter's vote will be counted.
Those unfamiliar with the recount process think it is a matter of simply counting ballots. Oh, that it was so simple! The primary guide in a recount is determining the voter's intent and if the recount commission cannot determine a voter's intent then the vote cannot be counted. In preparing for the Thompson/Robbins recount, I warned our counters that they would be surprised at some of the ballots we would find and they were not disappointed. For example, what was the intent of the voter who wrote the name of a single candidate next to the candidate's name but who did not color the oval for that candidate after coloring ovals for all the other races? Or, what did the voters intend who appeared to suddenly become shy after boldly coloring in the ovals completely on all the races except the one we were counting - instead leaving a tiny dot in the ovals which was too light for the voting machine to read? Or, what did the voter intend who colored in the oval next to the section for a write-in candidate but who did not write-in the name of the candidate?
And then there are the other issues that arise in a recount or contest other than simply determining the voter's intent. For example, in the legislative race where Jon Elrod won by only eight votes over Ed Mahern, it was discovered that in one precinct there were seventeen absentee voters who were sent the wrong ballot that did not contain the Elrod/Mahern race. Those seventeen voters were effectively denied a vote in that election and their votes could have changed that election. The Indiana Recount Commission, composed of two Republicans and one Democrat, voted against the request by Democrat Ed Mahern for a new election in that precinct.
The mailing of the wrong ballot to voters likely happens in every election. We saw it in the Thompson/Robbins recount where the May 2006 Primary Election required the design of 4800 different ballots due to splits in precincts for school board races. When sending out absentee ballots, the clerks have to determine the ballot applicable to the absentee voter. As long as human hands are handling that many ballots, errors will be made. The question that arises is, how do we address such errors, particularly when such errors may have changed the outcome of the election such as in the Elrod/Mahern race?
Indiana election law needs to be reformed. For example, we still have requirements that absentee ballots must contain the seal and signature of the clerk in order to ascertain that the ballot was legally authorized. In Marion County, that issue was avoided by preprinting the signature and seal on all ballots. Why not require all counties to preprint the seal and clerk's signature on the ballot so that in a recount there can be no question as to whether a voter's vote counts?
The new voting technology also opens doors to voting fraud in ways that we have never encountered. For example, test ballots are run through a voting machine but there are only so many test ballots. Let's say fifty test ballots are run through the machine. How would we ever know if the machine was programmed to change every tenth vote after the first fifty? We would not know of such programming unless there was a recount or contest and yet our laws are written as if we were still in the days of when it was physically possible to stuff the ballot box with paper votes. In the twenty-first century, an election does not need paper ballots to be manipulated - all one would need is a good computer programmer.
Further, we remain frozen by rigid rules that do nothing to promote the intent of the voters. For example, in the Harris/Hile recount, a married couple in their 80's forgot to sign the envelopes containing their absentee ballots. The husband was a veteran of Pearl Harbor meaning if anyone earned the right to vote, he did. In the course of the recount, the couple signed affidavits, swearing that they had voted absentee and the ballots in question were theirs. The Indiana Recount Commission refused Democrat Hile's request - again in a vote of 2 to 1 - to count the ballots. In a race that is close enough to justify a recount, why would the law not support counting as many votes as possible? If the voter makes an error that prohibits the ballot from being counted on election day but is willing to come publicly forward in a recount, subject to penalties of perjury and the punishment meted by election fraud laws, why would we not be willing to count that ballot in a very close race?
Not only do we need to reform how we count ballots, the election process itself also needs to be reformed. In Marion County, we have over 900 precincts. Calculating two poll clerks, two judges and one inspector per precinct means over 4500 people are needed on election day. To have a perfectly run election means that each of these people attend the pre-election training, understand the rules and then show-up on time on election day. The new technology means that the inspector also has to have an understanding of how the optical scan and touch screen machines operate, in addition to handling all the paperwork associated with the precinct. Talk about room for error!
Beth White, our new Marion County Clerk is facing a huge challenge because in less than five months after taking office, she will be directing a primary election for local races. And while I think Beth is more than qualified for the job, in a system that is human powered, there will be errors. Just ask Doris Anne Sadler. We need to start implementing a system that will help reduce the chance for errors (such as the reduction in the number of precincts which in turn reduces the required number of persons needed on election day) and adopt laws that will make it easier and less political in recounts and contests.
To date, Indiana's attention has been focused upon reform in areas such as voter identification laws despite the fact that we have had no recent cases of voter fraud for in-person voting on election day. Although the voter identification law may be more politically sexy, we need to start addressing the nuts and bolts of voting and counting votes in a system that continues to grow more stressed. Attracting voters to vote on election day is tough enough, but if we do not address election reform and promote the integrity of the process, the incentive for voters to vote will decrease. We tell voters that their vote can make a difference - our laws need to reflect the same principle.