2004 Ballot Recount: Observer Report
- December 16, 2004:
Report by Green Party Observer, Part 1 - December 16, 2004:
Report by Green Party Observer, Part 2
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"The morning began in an extremely structured and intimidating format, with sworn oaths and other formalities." "Someone ... from the Miami County Prosecutor's office instructed the observers that they were not allowed to make challenges and that they were present only to watch, not verify. We were also informed that it was not necessary to be able to see the votes on the ballots, only to view the process." "Note of irregularity: ballots seemed to already be sorted by candidate — how would this occur?" — Green Party Observer |
December 16, 2004:
Report by Green Party Observer
The morning began in an extremely structured and intimidating format, with sworn oaths and other formalities. Someone with the last name of Altair, from the Miami County Prosecutor's office, instructed the observers that they were not allowed to make challenges and that they were present only to watch, not verify. We were also informed that it was not necessary to be able to see the votes on the ballots, only to view the process.
Upon objection to this, Director Steve Quillen allowed the observers to position themselves around the counters as they saw fit so they could both witness and verify the process. A test deck was not supplied by the Board of Elections, but rather was created by witnesses.
In fact, before the witnesses insisted on a test deck, the B.O.E. was not planning to run any test deck at all. Note of irregularity: ballots seemed to already be sorted by candidate — how would this occur?
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"Precincts chosen for the three percent hand count (pre-selected, not randomly)" "There was a discrepancy between the hand count tally of the sample three percent ballots and the computer print-out tally of the optical scan of the ballots." "... The discrepancy should have been grounds for a complete hand recount of the entire county, based upon Provisions for Recount, Ohio Revised Codes 3515, Section F5.f." "However, a representative from the Secretary of State's Regional Office by the name of Jake Fashner interpreted the code [otherwise]." "The Board of Electors agreed with Mr. Fashner to deny our request for a full hand recount and moved to accept and certify the machine recount as the official results of the Miami County recount." "... Again the Board chair asked what we wanted and I said that because there was a discrepancy a full recount was in order. He went into the staff office, perhaps to check the website. Jake Fashner directed comments toward us to the effect of "Look, there will be no hand recount." "Mr. Fashner and the Chairman of the Board suggested if we have further concerns we might take them up with ES&S." "... a significant number of spoiled ballots (about 500) that could not be read by the optical scan machine had to be remade by B.O.E. staff with the intent of the voter being replicated to the best of the staff member's ability. It should be noted that this is a subjective process and that in the small sample we reviewed, there were questionable choices made previously during the initial counting by B.O.E. staff members in their attempt to transfer the voter's intent to a new ballot." — Green Party Observer |
December 16, 2004:
Report by E., Green Party Observer
Part 2 of Report on the Miami County Recount conducted on Dec. 16, 2004, pertaining only to the particular facts and circumstances described below.
The following report was prepared by recount witness E. and has been reviewed by Regional Coordinator J. for accuracy. The document was edited slightly for correctness of names and titles.
Summary of Major Concerns
There was a discrepancy between the hand count tally of the sample three percent ballots and the computer print-out tally of the optical scan of the ballots. The computer analysis and print-out of the report were supplied by ES&S equipment and software.
The discrepancy should have been grounds for a complete hand recount of the entire county, based upon "Provisions for Recount, Ohio Revised Codes 3515, Section F5.f."
However, a representative from the Secretary of State's Regional Office by the name of Jake Fashner interpreted the code to apply only to the optical scan tabulator counter, which only counted total numbers per precinct without breaking down by category (that is, by candidate).
The total number of ballots fed into the tabulator did match the number of total ballots per precinct on the visible counter.
We (recount observers) argued that the tabulator itself was only part of the necessary equipment, and therefore "Machine" or "tabulator" implicitly also included all necessary related machinery, such as the computer and printer which would produce the results to be used in tallying the election.
The Board of Electors agreed with Mr. Fashner to deny our request for a full hand recount and moved to accept and certify the machine recount as the official results of the Miami County recount.
Mr. Fashner and the Chairman of the Board suggested if we have further concerns we might take them up with ES&S.
Notes of clarification subsequently added by the author:
According to Directive 2004-58 from the Secretary of State, only the tabulating machine's count is of significance. The contact information for the Regional Supervisor for the Secretary of State is: Jake Fashner, 937-418-8568, jfashner@sos.state.ohio.us
The name of the Chairman of the B.O.E. in Miami County is Roger Luring.
Confirmation: Jake Fashner did indeed suggest contacting ES&S, blaming the discrepancy in numbers on the ES&S software in order to avoid a full hand recount.
When Director Steve Quillen was questioned on the record in regard to the validity of his proposed theory that the write-in ballot was run through the machine twice, he conceded that it did not explain the numbers and when asked what could have caused the discrepancy, he answered, "That is the great mystery."
Steve Quillen also stated at the conclusion of the day that he would do another recount himself to seek to resolve the miscount and that he would personally take it up with ES&S. In addition to the information contained herein, it should be noted that Director Steve Quillen agreed to email provisional ballot information to J. and A., which has not yet been supplied.
In addition, a significant number of spoiled ballots (about 500) that could not be read by the optical scan machine had to be remade by B.O.E. staff with the intent of the voter being replicated to the best of the staff member's ability. It should be noted that this is a subjective process and that in the small sample we reviewed, there were questionable choices made previously during the initial counting by B.O.E. staff members in their attempt to transfer the voter's intent to a new ballot.
Details and Discussion
Present at the onset of the recount, and in and out throughout the day:- The Miami County Board of Electors, minus the recently deceased member: 2 Democrats (including the Chair) and 1 Republican.
- Elections Director: Steve Quillen (R)
- Deputy Director: Diane Miley (D)
- Representatives from the Prosecuting Attorney's office (at least two)
- Local elections volunteers (equal numbers of dems and reps) to conduct the sample hand count
- Recount Witnesses: 2 Cobb, 2 Badnarik, 1-2 Republican, 1 Democrat
30: Troy 3E (661 ballots total)
004: Piqua 2A (558 ballots total)
Total Ballots: 1659
The Director explained that these 3 precincts had been chosen for the sample because they represent a cross-section of Miami County: namely, a larger city, a smaller city, and a small town.
Hand count: Each precinct's ballots were sorted, with witnesses, and then counted by candidate and other categories: "no-vote" (undervote), Nader (no-vote), and Misc., which was a single write-in ballot for a non-recognized write-in candidate (also a no-vote).
Tabulator: Each precinct's ballots were put through the tabulator, yielding one number each for each precinct's total (i.e. total only, not by category). Witnesses viewed the tabulator totals on the counter as matching each precinct: 440, 661, and 558. It was my understanding that the category breakdown had to match the machine count as well; otherwise, the hand count by category/candidate would not be necessary. However, based on these totals alone, the Director instructed staff to begin the complete machine recount of the other precincts.
I requested that we in fact see the computer analysis and print-out of the machine report. The Director went into his office to produce that print-out while the staff were running the rest of the ballots through the scanner.
The Deputy Director brought out the printed report: it seemed apparent that she had needed to confer with the Director, or at least analyze the results to understand and explain them.
As we viewed the results, she explained and we discussed. The votes for each candidate matched those in the hand count. We concurred. They totaled 1650 votes, leaving 9 votes unaccounted for on the print-out. Referring back to the hand count data, we agreed that between 6 no-votes, 2 Nader votes (also no-votes) and 1 write-in (no-vote) this accounted for the other 9 votes not specifically noted in the print-out.
But then I looked at the first line of the report. It read:
Total Number Voting: 1,660
I asked why it read 1,660 when we all agreed that the total number of ballots counted by hand was 1,659.
The Deputy Director got the Director, who studied the report and was apparently puzzled. He produced another print-out which showed to which precinct the "extra" unexplained vote was distributed by the computer. (Troy 3E read "662" total ballots though the hand count had 661). This was also the precinct that had the write-in, and this report specified that a "write-in ballot had been found."
The Director speculated that the machine had spit out the ballot (as it would normally with a write-in) and that a staffer had fed it in again. We countered that if that had happened, the report would say "2 write-in ballots found;" additionally, since we were witnessing the test process, we would have seen a re-feed occur, if it had. The Director was still puzzled and suggested that after the machine recount was completed, he might run the precinct through again.
In the meantime, it seemed to me and the other Cobb-Badnarik witnesses that the occurrence of the machine showing any discrepancy of any number with the hand count constituted grounds for a complete hand recount according to Ohio Code. I notified my coordinator, J., by phone of the situation, and he said he would come to the site and suggested that I also contact state coordinator C.
State Coordinator C. heard my description and believed that there were grounds for a complete hand recount. While we were waiting for our coordinator to arrive, we expressed to the Director within earshot of others present including some Board members, that because there was a discrepancy, we expected a full hand recount. The D.A. from the Prosecutor's office asked why we believed we were entitled to a full hand recount and asked us to show him where in the Code it was so stated. We said we would find that information, and he left saying he would look for it, too.
I called C. and asked for the Code number, which he supplied:
"Provisions for Recount, Ohio Revised Code 3515, Section F5.f."
Soon thereafter, the Board Chair returned with a code book (only current through 2003) and claimed there was no such code. He had with him Jake Fashner from the Secretary of State's Regional Office.
We called C. again who stated that this code was on Blackwell's website. Again the Board chair asked what we wanted and I said that because there was a discrepancy a full recount was in order. He went into the staff office, perhaps to check the website. Jake Fashner directed comments toward us to the effect of "Look, there will be no hand recount." We did not respond, and just waited.
Since they were almost finished with the machine recount, we realized they were close to calling the recount process over. Our coordinator arrived and was present when the Board chair called for a closing Board meeting to end the recount proceedings.
The Board acknowledged that there was a question about the application of Ohio Code and the computer print-out results. Jake Fashner spoke up and asserted that the Code had been satisfied, and there was no hand recount in order. He interpreted the code language (i.e. machine) to apply only to the optical scan tabulator counter, which only counted total numbers per precinct without breaking down by category (that is, by candidate). The total number of ballots fed into the tabulator did match the number of total ballots per precinct on the visible counter.
We (recount observers) argued that the tabulator itself was only part of the necessary equipment, and therefore "Machine" or "tabulator" implicitly included all necessary related machinery, such as the computer, software, and printer which would produce the results to be used in tallying the election.
The Board of Electors agreed with Mr. Fashner to deny our request for a full hand recount and moved to accept and certify the machine recount as the official results of the Miami County recount.
Mr. Fashner and the Chairman of the Board suggested if we have further concerns we might take them up with ES&S.
After the Board moved to certify the results, the Board Chair asked the Director regarding the question at hand (i.e. the print-out question) if he had any explanation. The Director posed his hypothesis about the write-in ballot being re-fed. Our coordinator pointed out again that this would have showed up in the results, so it wasn't a plausible explanation. The Director agreed, and stated that he did not know how to explain the results. Then, the Board Chair asked the Director if there was any further action he recommended taking at this time. The Director considered the question, and then replied "No." The meeting was adjourned.
It is my understanding, from observation, that the morning segment of the Board meeting and the closing segment were audiotaped by the Chairman.