Attorney general: election chief's voting machine order improper

JOE DANBORN

Associated Press   09 February 2005

COLUMBUS, Ohio - The state's top elections official did not have authority to order counties to use one type of voting machine, Attorney General Jim Petro said Tuesday, a day before the deadline for counties to submit their machine choices.

"The ultimate discretion is really the county boards' and not the state and that's the law," Petro said Tuesday evening.

Last month, Secretary of State Kenneth Blackwell ordered elections officials in Ohio's 88 counties to pick their preference of two types of optical-scan machines, which read marks voters make on paper ballots.

Blackwell spokesman Carlo LoParo called Petro's written opinion "inexplicable" and said it contradicts statements Petro has made to Blackwell in the past.

And unlike Petro's written opinion, "The secretary of state's directive carries the weight of law, and he expects that to be complied with," LoParo said.

Forty-three counties had submitted their voting machine choice as of Tuesday. Blackwell will send staff to the counties that do not comply by Wednesday, and those that can't decide on a machine will have one chosen for them, LoParo said.

Blackwell and Petro are seeking the Republican nomination for governor.

Petro said the federal law phasing out punch-card ballots allows county elections officials to choose between optical-scan machines and electronic touch-screen systems that create paper receipts allowing voters to check their choices.

Blackwell has said optical scan is the only affordable option to meet the paper receipt requirement. No touch-screen machines with paper printouts of ballots are yet approved; if there were, they'd be too expensive, his office has said.

"That is his judgment," Petro said. However, Blackwell "can't substitute his judgment for the county boards' authority."

On behalf of the Franklin County Elections Board, which uses touch-screen machines, county prosecutor Ron O'Brien asked Petro whether Blackwell had the right to issue the order.

The board meets Wednesday and director Matthew Damschroder said he wasn't sure how they will proceed.

"It basically would appear that the options continue to be open for local boards of elections to meet the federal mandates," he said.

Other elections officials expressed frustration with the conflicting messages.

"I don't know where this leaves any of us," said Keith Cunningham, director of the Allen County elections board and president of the Ohio Association of Election Officials.

The state Legislature last year enacted a law requiring that voters be able to see their votes on paper before they're recorded. That greatly restricted counties' ability to choose machines that meet state and federal election laws, Cunningham said. States must comply with the federal Help America Vote Act by next year.

"It seems like we're kind of mired down in this debate over who has authority, and meanwhile the clock keeps ticking," Cunningham said.