Reply #7: They are not following the rules this time either. [View All]

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As my colleagues and I have discussed previously, it is not at all clear to us that it is permissible under state law for local officials to review only 3% [or 10%] of VVPATs rather than all of them, despite the obvious administrative desirability for this more limited review. The part of the elections code governing recounts provides that any candidate may apply “for a recount of the votes cast at such election in any precinct” (§3515.01) and that the Secretary of State must order a recount “in a district election” when the margin of victory is less than one-half of one percent (§3515.011). These two provisions regarding requested and automatic recounts clearly contemplate the recounting of all ballots rather than just a fraction of them.

More to the point, another section of the code specifies the procedures for conducting both permissive and mandatory recounts (§3515.04), and states that “the board of elections, in the presence of all observers who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them,” not a portion of them. Likewise, still another section provides: “Upon completion of the recount of the ballots of all precincts listed in an application for a recount . . . or in the case of a [mandatory] recount as provided in § 3515.011,” the board shall file an amended return indicating any change in the results.

The upshot of all these provisions would seem to mandate the recounting of all ballots in a congressional race where either a candidate puts up the money for a recount of all precincts or an automatic recount of the race at the government’s expense is required because of the narrow margin of victory. Because a separate section of state law makes the VVPAT the “official ballot to be recounted” (§3506.18), a recount of all ballots in a race would appear to mean a recount of all VVPATs.

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http://moritzlaw.osu.edu/electionlaw/comments/articles.php?ID=85