IA-02: Three counties use voting machines to assist hand recount, defying Secretary of State opinion

Three county recount boards are defying a recent legal opinion from the Iowa Secretary of State's Office and using a machine to aid the recount of ballots in the ultra-close 2nd District congressional race.

Recount boards in Scott, Johnson and Clinton counties — the three most populous in the district — justified the move, saying it is necessary to ensure that the recount board's three members have time to examine ballots the machines couldn't read for voter intent to see if any were filed for Republican Mariannette Miller-Meeks or Democrat Rita Hart but were not tallied accordingly.

Assistant Scott County Attorney Robert Cusack offered a legal opinion for his board writing that using a machine to assist the hand count is consistent with the recount board's charge from Iowa Code to "tabulate all votes" and that a hand recount of all 60,000 votes is not required in light of the confidence in voting machines and the code's own time constraint. 

"If the recount board can determine the intent of the voter, then that vote should be counted," he said.

Sunday morning, the Miller-Meeks campaign called the move in Scott County illegal.

"Iowa law requires a recount in each precinct to be conducted either by Iowa’s reliable optical-scan ballot tabulating equipment or by a hand count. The Iowa Secretary of State has instructed recount boards to use one or the other, but not to combine the two," campaign spokesperson Eric Woolson wrote in the release. 

The Secretary of State's Office issued an opinion last week saying a recount board could not do a partial hand count of a precinct meaning if they wanted to hand-count some they'd have to hand-count all. Spokesperson Kevin Hall would not comment whether these particular processes violated Iowa law. 

More:'Not looking pretty right now': 2nd District recount continues, campaigns fret approach

The race is the closest federal contest in the country this year. Nearly three weeks after Election Day, the Associated Press has yet to call a winner. Irregularities in results in Jasper and Lucas counties have already surfaced and been corrected. Hart, hoping to find a few more that could turn the race in her favor, called for the full district-wide recount of all 24 counties. 

Cause: Scott County Recount Board anxious about time limitations on recount

Iowa Code requires three people to conduct a recount: one member appointed by each campaign and a third member agreed to by both campaigns.

The three-member Scott County Recount Board met on Nov. 17 charged by Code to "tabulate all votes ... as expeditiously as reasonably possible.” They were given under 12 days, until Nov. 28, to finish.

Iowa Code gives the same timeframe for highly populated counties like Scott (population 172,943) and Johnson (pop. 151,140) as it does for less dense counties like Van Buren (pop. 7,044) and Wayne (pop. 6,441). According to Scott County Auditor Roxanna Moritz,  the recount board was concerned about meeting the deadline as early as the following day.

If the three members did not sleep or substituted out in shifts, the board would have approximately 288 hours to meet their deadline. There were 93,053 ballots cast by Scott County voters in the 2nd District race, 64,052 of which were absentee ballots that are recounted in a single precinct. To just recount Scott County's absentee ballots, the three board members would have to average 222 ballots an hour without stopping.

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Iowa Code offers two methods for the count. A machine count quickly tallies votes. While it takes more time, a hand count uses voter intent standards to evaluate ballots. This potentially counts ballots that — while clear in intent — the machine didn't read as such.

A voting machine tallies an "overvote" when a ballot appears to be marked for more candidates than is allowed. It tallies an "undervote" when a ballot appears to be marked for too few or no candidates. In either of these cases, a voter could have meant to cast a ballot for either candidate but failed to have it recognized by the machine due to an ink smudge or irregular mark.

Voting machine expert Douglas W. Jones, a professor of computer science at the University of Iowa, told the Press-Citizen overvotes and undervotes are unlikely to change the result of any given election. Still, he would be "suspicious" of a recount that did not hand examine every instance an undervote or overvote was tallied. The recount, he said, was a chance to check the election's result no matter the margin.

"That's why eyeball examination is important in cases where things are so close," Jones said.

Effect: Recount boards adopt machine-assisted hand counts

Shayla McCormally, the attorney for the Hart campaign, asked Iowa Secretary of State Paul Pate to endorse a reading of Iowa Code that allowed county recount boards to use voting machines to tally ballots and "sort by hand the batches of ballots that were sent through the voting machine to find all ballots containing overvotes and undervotes."

But the method proposed by Hart's attorney potentially opened the final tally to double-counting ballots since it is difficult to determine which ballots a machine read as overvote or undervote and which ballots were cast for a candidate.

However, this was the method chosen by the Johnson and Clinton county recount boards. Unlike Scott, they opted to not use the high-speed counters to sort out ballots for the hand count. Instead, they went through the stacks with the tally in mind and pulled out the ballots they believed the machine identified as undervotes, overvotes and write-ins. They then applied voter intent standards to the ballot to determine if they should affect the tally generated by the initial machine count.

In a Nov. 19 opinion, the secretary of state's legal counsel Molly M. Widen wrote that a recount board, following a machine count, may decide to review a precinct's overvote or undervote ballots but it must be through a hand count of the full precinct.

Jones, the UI professor, said that voting machines used in the state today have the capability to sort out undervote, overvote and write-in votes. Rather than hand counting every ballot, voter intention standards could be used to check those ballots the machine could not count for candidates. This would allow for those ballots the machine cannot read to be checked while avoiding the issue of double-counting brought up by the Miller-Meeks campaign.

Prefacing that he's not a legal scholar but a scholar of voting machines, he said the opinion seemed unnecessarily cumbersome for the process given the capabilities of voting machines, echoing the Scott County Attorney's Office opinion above.

"If Iowa law says all the ballots have to be hand examined if any are hand examined, that's a weird law and that appears to be one reading of the Iowa law," Jones said. "But another reading, the inviting reading is for a procedure that is easy to use. A procedure that allows you to hand examine just those (the voting machine) couldn't recognize."

The Scott County Recount Board in a 2:1 decision, with Miller-Meek's representative in the dissent, adopted a machine-assisted hand count to count absentee ballots. The 64,052 absentee ballots held in 22 tubs in the auditor's office were run through the machine which tabulated votes for Miller-Meeks and Hart and sorted out overcounts and write-ins. This did not include undervotes.

"(T)here are thousands of undervotes registered by the machine that never received a second look. That’s the double standard. If you filled in two ovals on your absentee, then the board reviewed it by hand. But if you mistakenly didn’t fill in the oval darkly enough, there is an undeniable chance that the vote was sorted in as an undervote and never given the hand review by the board," Woolson wrote in response to questions from the Press-Citizen.

Zachary Oren Smith writes about government, growth and development for the Iowa City Press-Citizen. Reach him at zsmith@press-citizen.com, at 319 -339-7354 or on Twitter via @ZacharyOS.