Recounts—Improving state laws
Testimony Presented by Mark Halvorson, Citizens for Election Integrity Minnesota

Recounts serve an important purpose in our democracy. Foremost, properly conducted recounts assure candidates and the public that in a close election there has been a fair examination of the procedures and an accurate count of all legally cast votes.

Recounts can also help us improve election systems. Any shortcomings in our voting equipment, ballot design, and ballot processing are revealed by the scrutiny of a recount.

Statewide recounts are rare, but we should all be concerned with how they are conducted since recounts, even in other states, have the potential to affect us all. Out of the nearly 3000 statewide general elections from 2000 to 2009, there were only 18 statewide recounts; however, two of those recounts, Florida in 2000 and Ohio in 2004, played a pivotal role in the outcome of the presidential election, and one of them, the Minnesota senate recount in 2008 resulted in a 60-vote majority in the U.S. Senate.

I will first discuss the successes, challenges and lessons learned from Minnesotaʼs 2008 US Senate recount. Next I will focus on the challenges posed by inadequate state recount laws and will finish with recommendations.

In 2009, a citizens jury was organized by two non-partisan organizations. The jury of 24 randomly selected citizens from Minnesota was charged with making recommendations for how to improve the recount process. After hearing testimony, the jury, developed a list of what went well that included:

• The paper ballot recount by hand was very accurate and effective.
• The voting machines were very accurate.
• Having a paper trail was key to the success of the process.
• The process was transparent and there was widespread trust and confidence in the recount.

As far as challenges and lessons learned, the jury identified several items that needed further study along with recommendations. Here are three:

• Complexity of absentee ballots. The jury recommended simplifying the application and ballot.
• Processing of absentee ballots. The recommendation was to centralize the processing at the county level.
• Recount Trigger threshold. The jury recommended lowering the recount threshold.

The first two absentee ballot recommendations were implemented prior to the 2010 election. The third, lowering the recount trigger threshold, wasnʼt changed until
2013.

Nationally there are some issues and potential problems with state recount laws:

• Two states, Mississippi and Hawaii, donʼt have recount laws.
• In the 2012 election, about 25% of votes nationwide were cast on paperless electronic voting machines. In Virginia and Pennsylvania – two key states - most of the votes were cast on paperless voting machines. Without a paper record, none of these votes could be recounted since there is no way to independently verify that the digitally stored voter choices were accurately recorded.
• Only five states require that all ballots are hand counted in a recount.
• In Florida, although most votes are on cast on paper ballots, drastic changes to state election code severely restrict how many ballots are recounted by hand, so it is essentially impossible to conduct a valid statewide recount.
• In the majority of states recounts are conducted by a machine retabulation--feeding the ballots through the voting machine--which poses a challenge for determining voter intent.

Bottom line, the combination of paperless voting machines and some inadequate state recounts laws could result in an election meltdown with national implications.

Citizens for Election Integrity Minnesota recently announced a new document,Recount Principles and Best Practices, which provides a blueprint for improving
state recount laws. This document is a first of its kind and was the result of a yearlong collaboration with election officials and others with recount experience.
Here are some of its recommendations to help prepare states for recounts.

1. That every vote is cast on a paper ballot or results in a voter verifiable paper record. This ensures that election officials have an independent record to confirm that the results produced by the voting system accurately reflect the actual votes cast and the intention of the voters.

2. That all election contests be eligible for taxpayer-funded recounts when the margin of victory is very close. We refer to this as a close-vote-margin recount and provide guidance for how states can structure these recounts.

3. That close-vote-margin recounts be counted by hand. Although some states conduct recounts by simply running the ballots through the voting machine a second time, the visual inspection of a hand count is the most effective method to make a determination of voter intent and is a critical part of a recount in very close election.

4. Whenever a taxpayer funded recount is not available, a candidate and voters should have the option of requesting that a recount be conducted at their own
expense. The costs of the recount should be refunded if the initial outcome changed as a result of the recount.

5. Every effort should be made to accurately count all valid votes. A vote must not be rejected if it is possible to determine voter intent. These determinations should be applied consistently throughout the state.

6. Transparency is key to creating public confidence in the process and outcome of the recount. The importance of transparency should be conveyed to all election officials and staff conducting the recount.

7. To the extent possible, the canvassing boards, review authorities, and judicial panels with the authority to rule on disputed issues during the recount should be
formed with a balance of political party affiliations.

8. For the sake of transparency, observers should be accommodated in whatever way possible without interfering with the recount process.

In conclusion, Iʼd like to make a few comments about post-election audits. Audits like recounts can improve voting systems, but they differ from recounts. Audits provide routine checks on voting system performance, regardless of how close the margin of victory. Recounts repeat ballot counting in special circumstances such as a close margin of victory. Audits that detect errors can lead to a full recount.

Voting systems have produced result-changing errors through problems with hardware, software, and programming errors. Well-designed and properly performed post-election audits can significantly mitigate the threat of error and should be considered integral to any vote counting system. Unfortunately, only half of the states conduct audits. All states should adopt robust audit laws.