Open Thread on the Cranston Mayor’s Race

Speedway Ray has requested an open thread to discuss the Cranston’s Mayor’s race, and I am happy to oblige. For those who don’t know, we had an exciting “hanging chads” type situation here where the Democrat, Michael Napolitano, was ahead by just 71 votes. There were over 500 ballots that did not register a vote for Mayor, and Allan Fung, the Republican candidate, wanted to be able to view those ballots during the recount to determine if there was sufficient evidence of the voter’s intent. He filed a lawsuit and the judge decreed that the uncounted ballots needed to be photocopied and set aside, but did not give permission for the Fung campaign to view the ballots.

As of yesterday, Fung conceded victory to Napolitano. So the excitement is apparently over.

But before this election is relegated to history, I think there are a few things to be learned in the name of progress and democracy. Geoff Schoos, who is now writing a column for the Cranston Herald, made some excellent points. Most significantly:

…There are approximately 500 ballots that did not register a vote in the mayoral race. These so-called undervotes, if manually reviewed, could impact the results of the race. The board has resisted this manual review of 500 pieces of paper yet is more than willing to oversee the manual insertion of 34,000 pieces of paper into a machine.

The reasons given by the board are that the manual review of 500 questionable ballots will “confuse� the process, there is no policy to review ballots rejected by the voting machine, and manually reviewing ballots would throw “the objective electronic system [of tabulating ballots] down the tubes.� This is truly “Through the Looking Glass� stuff where the process is being run by the Mad Hatter.

Let’s look at these assertions. Raymond Marcaccio, attorney for the board, argues that the “electronic system� is virtually flawless but numerous studies have shown an “electronic system� can be tampered with and sometimes even malfunction. That’s why we have paper ballots – as a backup.

Mr. Marcaccio has argued that photocopying and setting aside the 500 questionable ballots would “increase the chances of human error.� Huh? Will there be no witnesses or procedures overseeing the complicated and technical process of operating a Xerox machine? This argument doesn’t even pass the laugh test.

Mr. Kando, the board’s executive director, has stated that the board has no policies to manually review ballots that do not register with the voting machine. Well, whose fault is that? There is a procedure in place for the manual examination of absentee ballots. Why not adopt that procedure in this instance?

The Rhode Island Board of Elections is more concerned with process than results. The board is willing to exclude 500 votes that can impact the election for the sake of administrative expediency. This potentially disenfranchises voters who faithfully cast their ballots.

In 1981, Rhode Island Supreme Court Justice Kelleher wrote in Buonanno v. DiStephano: “The overriding purpose of the election laws is to give effect to the voter’s choice. Each valid vote should be counted.� The justice rejected any assertion that investigations into an election should be avoided merely to uphold the election’s results.

Instead of coming up with reasons why votes can’t or shouldn’t be counted, the board should be feverishly working to identify valid votes to ensure that each is accurately counted. There’s nothing much at stake here – just the foundation of our democracy and the legitimacy of government.

While we were visiting family in Michigan, I had a discussion with one of my brothers-in-law, who serves on his local election board. They recently had a situation where a number of votes were counted as over-votes by their machines. In reviewing these ballots, they discovered that the pen connecting the line for a different vote on the back of the ballot had been pressed extra hard on these ballots and had shown through on the front side of the ballot, right between the other two lines for voting on another race.

A problem as simple as this could be affecting the 500 ballots in Cranston’s election, but we may never know because the Board of Elections refused to consider these ballots. (UPDATE: This article in the Cranston Herald indicates that all ballots were given a “cursory” review by both parties and thus the Fung campaign was able to determine that they were unlikely to pick up sufficient votes from the rejected ballots. So there was at least an unofficial process which allowed for addressing this issue.)

It seems to me that it is time to come up with some specific procedures for dealing with ballots not counted by the machines, to ensure that we are not throwing out votes because of technical difficulties.

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12 responses

  1. If there’s any doubt that the beginning of election reform in Rhode Island begins with the complete overhaul of the Board of Elections, I hope that today’s article in the Projo dispels such doubt. Once again we see the BOE marching off to the RI Supreme Court to argue that it shouldn’t count every countable ballot.

    As you were kind enough to point out, last week in the Cranston Herald I wrote that the actions of the BOE were through the looking glass presided over by the Mad Hatter. I change my mind – the Mad Hatter would have nothing to do with this nonsense.

    I don’t want to get extra-legal here, but if you look at RIGL 17-19-3(3)(v), you will read the following:

    (v) As part of the voting process, there shall be created a physical ballot showing the votes cast by an individual voter which is capable of being hand counted so that electronic recorded device totals can be checked for accuracy. The device must be able to accept a one, two (2) or three (3) column ballot which can be printed on one or both sides. (Italics mine)

    Clearly, the legislature intended in certain instances that the paper ballot be physically reviewed and inspected at least for the purpose of verifying the accuracy of the optical scanner. Not to stretch that concept beyond the ken of Commissioner Frank Rego, who in the Projo worried that the BOE would be changing the rules in the middle of the game, the statute anticipates inspections of ballots where any issue of accuracy is raised – for example, in a recount process.

    Acting BOE chairman, Thomas V. Iannitti, says that Rhode Islanders should be outraged by Judge Fortunato’s decision yesterday to count certain physical ballots in a council race in East Providence. Ianitti’s right – people should be outraged, but not for the reasons he gives. They should be outraged because the BOE, along with the Secretary of State’s office, has input as to the voting equipment to be purchased. Moreover, as mandated by the aforementioned statute, the specifications clearly state what kind of equipment would be procured. If the BOE has a complaint, it’s not with Fortunato but with the General Assembly. However, side-stepping any confrontation with the Assembly, a body to which each member owes a debt for their job, the BOE unanimously decides to ignore the statutory dictates. Moreover, the BOE consistently ignores its discretionary authority to give effect to the election laws of the State of Rhode Island – that each vote count and be accurately counted. Ianitti’s right – Rhode Islanders should be outraged.

  2. With all respect to Mr. Shoos, the majority of these ballots had NO vote for mayor, as explained by Mr. Iannitti on Arlene Violet Tuesday afternoon.

    My perspective is this: a vote is a connected arrow. Not a checkmark; not an underline; a completed arrow. The machines are calibrated very carefully to read a completed arrow. If a voter wants to show intent, s/he does so by completing the arrow.

    Unless there is an allegation of fraud or tampering, there is no way for “inaccurate” vote-counting to occur. Any other issues that arise, do so because of voter misinformation. Forcing visual inspection for “intent” only rewards that disinformation.

  3. Ray, What about a situation such as that described by my brother-in-law where an extra dark marker line showed through from the other side of the ballot, causing an overvote to register? There are technical situations which machines can’t identify but humans can. There are ways in which the machines can fail.

    I am glad the judge ruled that the ballots can be viewed. It will be interesting to find out exactly how many of them registered no vote. I did not hear the show, so I don’t know exactly what he said, but a “majority” of them could mean 275, or it could mean 499.

  4. With all respect to Ray, I’d point out that all of this could have been avoided had the BOE simply and volitionally allowed those ballots to be viewed. If most of the ballots had a NO vote for mayor, then so be it. As Bill Parcels says “it is what it is.” But it is mere bootstrapping for Ianitti or anyone to argue that b/c the ballots had No vote for mayor, then that’s a good reason not to view them at all.

    As for voter intent, I agree that connecting the arrow is the best way to determine voter intent – but not the only way. Check marks, underlines, etc. may well reveal voter intent. However, there’s no way to determine whether that is or isn’t the case unless the ballots are actually inspected. The statute provides for it, the BOE has discretion to do it, fairness seems to require it so I don’t see what the problem is. It seems that exclusively determining the voter’s intent by his ability to connect the arrow penalizes a voter who – for whatever reason – is unable to follow the rule. I hope that we haven’t devolved to that point.

    Finally, I heard this argument about fraud and tampering two years ago and it didn’t sell then, let alone now. In 2004, the “fraud/tampering” argument was floated to excuse inaction. There was no solid basis for that criteria then,nor is there now.

    I’m just stunned that rather than reaching out and looking at all ballots, in order to give force and effect to the Election Laws of the state, the BOE consistently avoids counting ballots. It boggles the mind.

  5. I’m agreeing with Kiersten and Mr Schoos, here. In a case that’s this close, a physical review of all votes should be mandated by law. The unwillingness to do this sounds, at best like laziness; at worst, it’s got all sorts of potential for vote fraud.

    I believe I understand Ray’s point; however, IMHO, discernable intent should trump the formalism of a “correct” way of marking the ballot. While realizing that Ray’s point has the advantage of offering a clear definition of what a valid vote is, the real world isn’t always black-and-white.

  6. i also think that a physical recount is the most fair way to resolve doubts about whether vote were counted.

  7. As to Mr. Shoos’ point, the BoE can only follow the state law that mandates its operations. If state law does not allow visual inspection of machine-rejected ballots, they simply can’t do it.

    If there was a mistake made here, it was at the General Assembly.

    That aside, I’m not all that opposed to some kind of informal inspection in cases where the vote is as close as it was in Cranston. And to correct Mr. Shoos, Mr. Fung decided to concede, after all, once he saw for himself that the “disputed” ballots would not have given him enough votes to win.

    Klaus: I agree that the world can’t always be black-and-white, but I’m not sure I’m comfortable allowing gray areas when it comes to voting.

  8. Ray, just a few points. First, while state law doesn’t allow or mandate the physical review of ballots, neither does it prohibit the review. Thus, we fall back on the BOE’s discretionary power to give force and effect to the statutory scheme of the state’s election laws. In short, the BOE could have provided for a review of the ballots irrespective of statute.

    Second, I’m not sure what informal inspections would be. The informality of any review would seem to open a can of worms. It would seem that the BOE, in the foreseeable event of a close election, could modify its existing routine of evaluating absentee/provisional ballots and adopt it to the physical review of ballots in a close race. Otherwise, under an informal review process, we might slide down the slipery slope into to due process perdition.

    Third, I’m not sure what the “correction” is – Fung did concede once he saw for himself that the disputed ballots would probably not change the result. I attended the recount at the BOE and saw some of the ballots that were rejected by the optical scanners. It was clear to me then that Fung has little to no chance to win the election. However, a process took place that made even that level of cursory review and analysis possible. Imagine if the BOE, by its own volition, determined a procedure to review those ballots, thereby ssving time and money. Not to mention eliminating any cloud that might potentially exist over this election.

    Ray, we disagree over method, but I think we do agree about the transparency of the outcome of elections. It’s an important discussion, one that will no doubt take place time and again as our system of elections becomes more legalistic and techologically complicated.

  9. GS:

    I’m glad we reached what seems to be a reasonable agreement over this issue.

    btw, thanks to KM for opening the thread.

  10. Now, since this is an open thread on the mayor’s race…

    I think it’s time to start considering just what kind of mayor Mike Napolitano will make. He can’t, for obvious reasons, come into the office with the same bluster as Steve Laffey and claim all kind of disaster scenarios to justify raising taxes.

    On the other hand, the city budget is still structurally unsound (to be generous). What I mean by that is, we are facing tax increases next year that are solely the result of recent contracts – most of which Mr. Laffey negotiated – and city services have been getting by on life support for the last two or three years.

    (Consider the point Mr. Napolitano made several times during the campaign that the only street to be paved in 4 years was Seven Mile Road.)

    The 2007-08 budget will be Mr. Napolitano’s first test; he has to, at the same time, keep enough money in the surplus to maintain the city bond ratings; apply any left-over funds to urgent needs like contracts and services; and somehow limit potential tax increases.

    It’s a tall order. He seemed to have more of a plan during the campaign than did Mr. Fung, whose “we can’t go back” theme was just too negative for my taste — and, it seemed, 16,000 other peoples’ taste.

    In any case, I’m interested to know what other folks think as we go into 2007 in Cranston.

  11. Thanks for raising the topic, Ray. I have a lot of concerns about Cranston, as a micro unit of the US economy, and as a city that has a large population of middle class people who could be driven out by tax increases, particularly the elderly. It seems to me that useful efforts at this point could go toward communicating our needs to Reed, Whitehouse, Langevin and Kennedy. Those needs, as I see them:

    1) funding for education, so that our stellar schools systems can be maintained, the physical buildings can be repaired and kept environmentally healthy, and our employees can be well-compensated. This funding needs to come from the state and national level. If it continues to burden our local property tax, many homeowners on fixed incomes will be in trouble.

    2) funding for economic development. Buddy Cianci did it in the 80’s and 90’s and we can do it now: build Cranston’s reputation as a great home for locating environmentally friendly business.

    3) I am not very up on the roads issue — I don’t drive around Cranston all that much and the roads I drive on seem mostly okay, but I guess there is concern about some of our roads.

    It is easy to say that money needs to come from the state and federal level — it’s another thing to go through and find ways to make it happen.

  12. Kiersten:

    On all of these topics, the recent change in Cranston’s elected offices should help. Laffey deserves criticism for failing to rally our General Assembly delegation to get more state aid — it’s also very difficult to justify more state aid when you can just make huge tax increases. This goes back to Laffey’s overall handling of the fiscal crisis, and it’s something Cranston is going to have to live with.

    In any case, we have a strong group of GA delegates now, who should be able to level the playing field a bit better for Cranston.

    On the economic development topic, Cranston has no shortage of businesses who want to move here. The key is, as Mr. Napolitano has indicated, getting those businesses through the city’s permitting process quickly and efficiently (and I’m not talking about concrete plants here). This is another area where Steve Laffey left Cranston reeling, after trying to downgrade the economic development director’s post to a manager’s job and hiring an unqualified candidate to fill the position. In this area, Cranston has the people and the tools to succeed; it will take strong leadership from the Mayor’s office to capitalize on it.

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