Extra: Election
Judge set to hear challenge to ballot recount procedures
01:00 AM EST on Wednesday, November 29, 2006
PROVIDENCE — The first major challenge to state election policy since electronic voting machines were introduced eight years ago will be heard today in Superior Court.
Since the state Board of Elections purchased Optech scanners in 1998, replacing the decades-old, mechanical lever machines, election recounts have been limited to the re-feeding of paper ballots into voting machines.
But this month, two candidates – Joseph Larisa Jr. of East Providence and Allan W. Fung of Cranston – challenged that policy, asking for permission to manually inspect ballots that cannot be read by the machines.
In a Nov. 14 ruling, Judge Stephen J. Fortunato Jr. sided with the candidates, rejecting pleas from state election officials who cautioned against second-guessing the Optech scanners.
Fortunato ordered the Board of Elections to segregate and photocopy problem ballots, and he said he would later hear oral arguments about whether candidates should be permitted to scrutinize those ballots to determine if stray markings might reveal a voter’s intent.
At the hearing, Fortunato said he would probably grant that access, saying he disagreed with the Board of Elections that the Optech machines were an “unalloyed blessing” that required no human oversight.
Election officials protested his decision, arguing that it would dramatically slow recounts and create a local version of the 2000 election nightmare in Florida; instead of hanging chads, they said, Rhode Island would host endless debates over how to interpret check marks, underlines and circles around a candidate’s name on a ballot. (The Optech scanners only record a vote if the arrow pointing to a candidate’s name is completed.)
Eight scheduled recounts were suspended as a lawyer for the Board of Elections, Raymond A. Marcaccio, appealed Fortunato’s ruling to the Rhode Island Supreme Court. The remaining recounts are taking place throughout the week.
On Nov. 20, the justices sided with the candidates, and recounts in the Cranston and East Providence elections were held on Monday and yesterday. Election workers photocopied almost 300 ballots over the two-day period.
Those copies are being held in a locked room in the Board of Elections headquarters, in Providence, and today the lawyer hired by Fung and Larisa, Angel Taveras, will ask Fortunato to release the ballots for public inspection.
“We want every vote counted and counted correctly,” said Larisa, a City Council member who trailed Isadore Ramos by 16 votes after yesterday’s recount. “These issues can be resolved in an hour if the Board of Elections cooperates or if the judge orders them to.”
Fung trailed Michael T. Napolitano by 79 votes after a recount on Monday in the city’s mayoral election. He conceded yesterday and dropped his legal challenges. But Taveras said the case would go forward with Larisa as the sole plaintiff.
Craig N. Berke, a courts spokesman, said Fortunato would hear oral arguments around 11 a.m.
Larisa said his case was strengthened by irregularities in yesterday’s recount, after which the total votes cast for the two candidates had decreased by nine. In the Cranston recount, on Monday, 47 votes tabulated on Nov. 7 inexplicably disappeared. (The ballots in an East Greenwich Town Council race were also recounted yesterday, leaving the winning candidate just one vote ahead of his opponent.)
In addition to petitioning for access to the photocopied ballots, Larisa’s lawsuit challenges several other state election laws and policies.
In a lengthy brief filed with Fortunato, Taveras asked that the Board of Elections include absentee ballots in its recounts. In the East Providence race, more than 700 absentee ballots were mailed in, and they have not been examined since Election Day.
Taveras has also asked the court to overrule a decision by the East Providence Board of Canvassers to partially disqualify 31 provisional ballots cast by registered voters who voted in the wrong precinct on Nov. 7. Those ballots were classified as “federal office only” and not counted toward the City Council tallies when the Board of Elections tabulated provisional ballots.
“They are registered voters,” Taveras has said. “You can’t just simply reject those ballots, whoever they are for. It doesn’t make sense to us.”
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