Judge orders manual review
of ballots!
|
Over the objections of the state's top election officials, [Stephen J. Fortunato
Jr.] ordered the state Board of Elections to permit an East Providence City
Council candidate, Joseph Larisa Jr., to manually review 96 problem ballots
that were photocopied during a recount on Tuesday.
After Tuesday's recount of more than 16,400 ballots, Larisa trailed Isadore Ramos,
a former assistant school superintendent in East Providence, by 16 votes. But Larisa
said that tally might change after a manual review of 21 ballots that the scanners
rejected as so-called overvotes - a voter selected both candidates - and 12 ballots
that the voting machines considered blank but that could contain underlines or circles
that reveal the voter's preference. (Sixty-three additional ballots triggered errors in
the tabulation of other races or referenda during the recount.)
In an emergency hearing on Nov. 14, Fortunato predicted that he would rule in favor
of [Allan W. Fung] and Larisa, who had joined the lawsuit. He ordered the Board of
Elections to photocopy all problem ballots, dismissing objections from election
officials who said that would slow recounts and increase the possibility of damaging
or losing ballots.
Full Text (857 words)
Copyright Providence Journal/Evening Bulletin Nov 30, 2006
PROVIDENCE - In a decision that could have far-reaching effects on the way
Rhode Island conducts elections, Superior Court Judge Stephen J. Fortunato Jr.
ruled yesterday that any ballot that cannot be read by electronic voting machines
during an election recount must be made available for public scrutiny to determine if a
voter's intent can be discerned.
Over the objections of the state's top election officials, Fortunato ordered the state
Board of Elections to permit an East Providence City Council candidate, Joseph
Larisa Jr., to manually review 96 problem ballots that were photocopied during a
recount on Tuesday.
"We're dealing with a fundamental right," Fortunato said. "Surely we cannot
surrender elections to machines."
The Board of Elections declined to comply, with the five commissioners voting
unanimously to appeal the decision to the Rhode Island Supreme Court.
"The people of Rhode Island should be outraged," said Thomas V. Iannitti, the
board's acting chairman. "I think we should take this to the U.S. Supreme Court. It's
the most offensive thing I've witnessed since I've been here."
Until now, the Board of Elections has barred public access to ballots and entrusted
Optech scanners to discard ballots that were not properly completed. Candidates
have been invited to observe recounts, but not to examine ballots, including those
that did not register a vote, as they are re-inserted into scanners.
In court, state election officials said the electronic system guaranteed objectivity and
prevented the disruptive manual reviews that bedeviled the recount of ballots in
Florida during the 2000 presidential contest.
Raymond A. Marcaccio, a lawyer for the Board of Elections, said Rhode Island law
defines a vote as the completion of the arrow pointing to a candidate's name - the
only marking recognized by the Optech scanner. Manually examining ballots to
interpret voter intent, he said, has never been allowed.
"I don't want to make it sound like we are now in the age of cyborgs," Marcaccio
said. "But this is a whole new way of electing officials."
Fortunato rejected those arguments yesterday, criticizing current election policies as
"secretive" and inconsistent with widely accepted legal principals.
The reason the legislature required paper ballots, Fortunato said, is to facilitate
precisely the scrutiny Larisa requested. Prohibiting observers from viewing ballots, he
said, is "ludicrous and antithetical to the democratic process."
Advances in election technology, Fortunato added, do not obviate the need for
human oversight. "The Titanic was a whole new way to transport people across the
Atlantic," he said. "Neither the human beings involved nor the machines are infallible."
The ruling breathed new life into Larisa's campaign to retain his council seat.
After Tuesday's recount of more than 16,400 ballots, Larisa trailed Isadore Ramos,
a former assistant school superintendent in East Providence, by 16 votes. But Larisa
said that tally might change after a manual review of 21 ballots that the scanners
rejected as so-called overvotes - a voter selected both candidates - and 12 ballots
that the voting machines considered blank but that could contain underlines or circles
that reveal the voter's preference. (Sixty-three additional ballots triggered errors in
the tabulation of other races or referenda during the recount.)
Fortunato also granted Larisa access to 93 provisional ballots and 612 absentee
ballots cast in the race.
"Democracy demands that ballots be looked at by the public," Larisa said
outside the courtroom.
Larisa's lawyer, Angel Taveras, originally filed the lawsuit on behalf of Cranston
mayoral candidate Allan W. Fung. But Fung, a Republican, conceded on Tuesday
and withdrew as a plaintiff after a recount the day before left him trailing Democrat
Michael T. Napolitano by 79 votes, more than the number of ballots that were
rejected as blank or overvotes in his race.
In an emergency hearing on Nov. 14, Fortunato predicted that he would rule in favor
of Fung and Larisa, who had joined the lawsuit. He ordered the Board of Elections
to photocopy all problem ballots, dismissing objections from election officials who
said that would slow recounts and increase the possibility of damaging or losing
ballots.
Election officials postponed eight scheduled recounts, which did not begin until
Monday, after the state Supreme Court upheld Fortunato's order. (Six of the seven
recounts have now been completed, including those conducted yesterday in town
council races in Tiverton and Portsmouth. The final recount, for a state representative
race, is scheduled for today.)
Yesterday, Taveras celebrated Fortunato's decision. "The ruling is good not only for
Mr. Larisa, but for the state of Rhode Island," Taveras said. "It will help ensure trust
in our system."
The Board of Elections did not see it that way. Marcaccio said state law only
requires that ballots be preserved for 22 months following an election, and he said it
would benefit the system if they were kept isolated until they were destroyed.
At their first board meeting since the Nov. 7 election, commissioners yesterday
afternoon also criticized Fortunato, arguing that his ruling had compelled them to treat
one election different than all others.
"You can't change the rules at the end of the game," said commissioner Frank J.
Rego. "He's just opened Pandora's box."
apina@projo.com / (401) 277-7465
bgedan@projo.com / (401) 277-8072
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