Some pens mightier than others in election kerfuffle

Richard Ruelas    The Arizona Republic  Sept. 5, 2005 12:00 AM

The election system in Maricopa County is tinged with inaccuracies and allegations of fraud. But it has nothing to do with undocumented immigrants and everything to do with the permanent markers called Sharpies.

The integrity of the ballot box has been a hot topic recently. A proposition passed in 2004 was supposed to keep undocumented immigrants from casting ballots. Rules to enforce Proposition 200 keep getting batted around by federal and state authorities. Maricopa County Attorney Andrew Thomas last month filed charges against 10 people illegally registered to vote.

But largely away from public attention was a bona fide election problem, one that has been simmering for three years and finally boiled over during the 2004 election, coincidentally, the same election that saw the passage of Proposition 200.
And it all has to do with the fact that Karen Osborne, the director of county elections, could not say, "Sharpie."

Because Osborne could not use brand names in telling voters what to use to fill out an early ballot, lots of people used writing instruments not accurately read by the county's counting machines.

Had she been able to recommend the Bic Round Stic, and more importantly, to dissuade voters from using Sharpies, she might have saved herself a lot of headaches.

She might not have had to deal with a recount that changed the outcome of an election last year. She might not have been hauled into court to testify under oath about that election. She might have avoided an investigation by the Maricopa County Attorney's Office and visits from state legislators.

"The lawyers said I couldn't say, 'Don't use Sharpies,' "Osborne said. "If I could say Bic or Sharpie, people would have known what I'm talking about."

That led to turmoil in the 2004 Republican primary for Arizona's District 20, where the outcome was determined by a sliver of votes. That election exposed a weakness in the system, one that Osborne is still trying to explain and justify nearly a year later.

The problem will be solved next year, Osborne said, with the expected funding of an upgrade to the counting machines' software and hardware. Then, the machines will be able to read marks on a ballot made by nearly anything.

"We have to keep up with the public, not have the public keep up with us," Osborne said.

But, for now, Osborne is still dealing with sternly written letters from the Maricopa County Attorney's Office and persistent stories and rumors circulating nationally that something is wrong with the way elections are run in Phoenix.

What does appear certain is this: The county's counting machines don't read the same ballot the same way. If you voted early in recent elections, it's a bit of a crapshoot whether your ballot got counted. It depends on what machine read your ballot, and whether you used a Bic pen.

The problem first popped up three years ago, during another close election for the state Legislature. The margin of victory was close enough to trigger a recount. The winner of the election didn't change, but the recount found additional votes for each candidate.

The county tried to solve the riddle of the extra votes. They didn't come from additional ballots discovered. It was just markings that weren't detected during the first run through the scanning machines.

Osborne spoke with the makers of the counting machine, the Optech IV-C Model 400. What she found was that those machines, designed in 1985 and bought by the county in 1995, were designed to detect marks heavy with graphite ink. At the time, that was in most of the pens people used. These pens built up globs on their ends during use and leaked, requiring their owners to wear pocket protectors.

But by the mid-1990s, the Sharpie marker was becoming ubiquitous and more people were using those markers on their early ballots. And the counting machines the county had were not designed to detect those marks. One machine might; another might not.

"There was no way to get (the machines) in perfect tolerance with each other," Osborne said.

People were using other instruments as well, from glitter pens to eyebrow pencils.

Osborne tried making it clear to the public what could be used, without getting the county into legal hot water for seemingly endorsing a product.

In 2004, the outdated machines and the new-fangled pens would have a public clash.

John McComish and Anton Orlich both sought the Republican nomination for state representative in District 20, covering Chandler and Ahwatukee. The initial count that used all eight of the county machines had McComish down four votes. But in the recount, which used only one machine, 472 additional votes were found. The final tally put McComish ahead by 13 and into the Arizona Legislature.

But Orlich challenged the result in court.

During her testimony, Osborne explained that the machines functioned properly and blamed the differing instruments voters used. She mentioned glitter pens and eyebrow pencils, but she did not mention Sharpies. By then, she had trained herself to dance around the term. The judge let the recount stand, although not everyone was satisfied.

The Maricopa County Attorney's Office started an investigation, trying to determine if there was voter fraud. That report determined there was some sort of machine malfunction.

Osborne said that's not exactly right, either. The machine functioned perfectly. It just wasn't designed to read the dye-based ink found in Sharpies.

She has had recent visits from state Sens. John Huppenthal and Jack Harper. Both asked questions and dug through tests and documents on the machines. Osborne doesn't know if they left satisfied. "I haven't heard any follow-up," she said. Neither returned a call seeking comment.

Osborne said she would ask for her own legislative reform this coming session. She wants the state to require that recounts include a hand count of ballots from 5 percent of the precincts. That could mean physically sorting through thousands of ballots, a monotonous and tough task.

"There are a lot of things in this business that are difficult to do, but it's the right thing to do," Osborne said. "It's the cost of a good democracy."

Osborne tested the new software and hardware for the counting machines last week in Oakland. "We ran all kinds of goofy things through them," Osborne said, including marks with crayons and Sharpies. All were picked up.

If all goes well, the new machines will be in place by March 2006.

Coincidentally, that could be the first election held under the new voting rules of Proposition 200, the ones that were supposed to ensure the integrity of the ballot box.