Alabama Advisory Opinions November 24, 2004: AGO 2005-022 (November 24, 2004)

AGO 2005-022.

Dear Judge King:

This opinion of the Attorney General is issued in response to your request.

In an automatic recount, are voted ballots left by poll workers inside locked voting machines on election night, and not secured by the returning officer of the county on election night, but that remained inside locked voting machines until the ballots are discovered one to two days later, to be counted in the recount and added to the recount total for the county?

Your request presents the following information:

There is a lengthy history in Jefferson, County, Alabama, of teaching and stressing by probate judges at election schools prior to primary elections and general elections that all voted ballots need to be removed from all voting machines by chief inspectors and poll workers on election night, and submitted to the returning officers of the county to be secured (in the election vault).

Nevertheless, voted ballots have been discovered, post-election, by election division personnel in voting machines in every election in Jefferson County spanning many years.

In advance of the November 2, 2004, General Election, I initiated a new procedure to have every chief inspector or returning officer at every precinct submit a form verifying in writing that ALL ballots were, indeed, removed from every voting machine at their precinct and returned on election night. In addition, following discussions with the sheriff's department, I was assured that language would be added to the pay voucher for each of the deputies assigned to work the 187 precincts, whereby the deputy certified on his or her pay voucher that all voted ballots were removed from every voting machine at his or her precinct.

On election night, virtually every precinct in Jefferson County followed the new procedure and submitted a signed form verifying that ALL ballots were removed from ALL voting machines at their respective precinct.

During the couple of days following the General Election on November 2, 2004, personnel from the elections division of Jefferson County transported the locked voting machines from each of the 187 precincts to the elections warehouse. At the warehouse, the machines were unlocked. It was discovered at that time that four of the 187 precincts left voted ballots in the voting machines. There were approximately 1050 voted ballots left in the voting machines.

Jefferson County uses electronic-voting equipment in which a voter casts a paper ballot. The ballot is then fed, by the voter, into the voting equipment (or voting machine) at the polling place. This type of electronic-voting equipment is referred to as a precinct ballot counter. See Ala. Admin. Code. r. 307-X-1-.01(14) (2002). The ballot is counted by the precinct counter when it is fed into the machine, and the ballot then drops into a holding box inside the machine. After the polls close, the poll workers are required to remove these ballots that have been counted from the voting machines and seal the voted and counted ballots in boxes or envelopes that remain sealed and are held by the sheriff of the county. Ala. Code §§ 17-13-4 & 17-13-5 (1995). After the ballots and other records are removed from the voting equipment, the machines are locked. Ala. Admin. Code. r. 307-X-1-.18 (2002); s ee Ala. Code §§ 17-9-33 & 17-9-36 (1995). The machines are then transported and stored by the persons designated by the county as custodians of the machines. Ala. Admin. Code. r. 307-X-1-.07 (2002).

Section 17-13-12 provides for an automatic recount when the election returns reflect that a "candidate is defeated or any ballot statewide measure is defeated by not more than one half of one percent of the votes cast for the office, or the ballot measure." Ala. Code § 17-13-12 (Supp. 2004). This section also states, in pertinent part, as follows:

The recount shall be conducted as simply as the type of equipment and local conditions permit provided that the following minimum safeguards are observed. The box or envelope holding the ballots shall be delivered unopened, and still sealed in the original container to the inspector in charge of the recount. A representative of the authority having custody of the ballots shall be present during the recount. The recount shall consist of reading the ballots through the counter. Any ballot that was counted in the original election, but is rejected by the counter in the recount shall be counted by hand.

Your request states that the voting machines were locked during election night and the voted ballots were discovered by the voting machine custodians when the custodians unlocked the machines after they were transported to the county election warehouse for storage. The custodians placed these voted ballots into precinct-designated ballot boxes, sealed the boxes, and stored the boxes in an election vault within the warehouse. The sealed boxes have remained in the election vault since the election. You state that this has been the standard procedure followed by the election machine custodians for many years when voted ballots have been discovered inside the locked voting machines.

What you refer to as "voted" ballots left in the voting machine are, in fact, ballots that were counted by the voting machine and included in the results of the election on election night. If these voted ballots are not counted during the recount, the recount results will clearly result in totals that differ from the original election results. It is the opinion of this Office that these voted ballots should be counted, but that these ballots and the election totals from these ballots should be accounted for separately from the remainder of the recount. This procedure would preserve these ballots and these vote totals should an election contest be filed.

Voted ballots included in the election night results that were left inside locked voting machines on election night by poll workers and were discovered and secured by election machine custodians following the election should be counted in the recount and added to the recount totals, as long as these ballots and the vote totals are accounted for separately from the remainder of the recount totals.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

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