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Tennant: Election laws need attention

Precincts
Nov. 14, 2012 @ 11:20 PM

HUNTINGTON — West Virginia's secretary of state said Wednesday that confusion over when to release precinct-by-precinct election totals is one of several election law conflicts that need to be addressed.

If you live in Cabell County and want to know how your precinct voted for president or any other race in last week's general election, you had to wait longer than usual.

County Clerk Karen Cole and many other county clerks across the state refused to release precinct-by-precinct results until after their county commissions certified the elections, even though state law requires precinct results be made public immediately upon completion of the unofficial vote count on election night.

However, other clerks did release the returns.

A check of six counties Wednesday revealed three -- Kanawha, Lincoln and Wayne -- make unofficial precinct results available to the public before the election is canvassed. Cabell, Mason and Putnam counties did not.

Cabell County commissioners met Tuesday to start canvassing more than 800 provisional ballots. They finished Wednesday afternoon. The canvassing process did not change the outcome of any races, Commissioner Bob Bailey said. Copies of the official precinct returns were to be made available today, Nov. 15.

The decision to withhold the unofficial tallies in individual precincts originated with a recommendation from former Secretary of State Betty Ireland that was sent to all 55 county clerks during the 2008 election cycle. The recommendation advised county clerks to ignore the law so they could abide by another: protecting the privacy of a voter's ballot. The state constitution also speaks to the public having the right to vote by open, sealed or secret ballots.

Current Secretary of State Natalie Tennant did not issue a wide-sweeping directive to county clerks before this year's election cycle, although her office has issued the same recommendation as Ireland's to counties -- such as Cabell and Mason -- that have sought advice on the issue.

Tennant said county clerks who release precinct returns before an election is certified run the risk of exposing how a small number of people have voted.

If a precinct only has one provisional ballot and that ballot is counted, then there would be a clear difference between the pre- and post-canvassed results, she said. And since a provisional voter's identity is made known during Board of Canvassers meetings, which are open to the public, it can destroy the privacy of the voter's ballot.

"I understand that media, members of the public and candidates want to get their hands on this information as soon as possible so they can dissect it. I believe I'm the most transparent state officeholder in West Virginia," Tennant said. "But I also believe one person's vote is worth protecting at all costs."

Tennant said she didn't issue a statewide recommendation to all county clerks like Ireland did four years ago because some county clerks may feel secure in releasing unofficial precinct-by-precinct results if all of their precincts have more than one provisional voter.

Tennant said she does intend to push for the Legislature to address the issue when it convenes in February.

"Yes, I'm aware there's a conflict. And yes, I believe it needs to be addressed," she said. "We've wanted to form a blue-ribbon committee to clean up all of the conflicting election laws in state code, but we've been dealing with some unprecedented circumstances during the past four years."

Keith Biggs, a Point Pleasant resident who has done election demographic work for political campaigns in West Virginia for more than 20 years, said not releasing precinct-by-precinct results on election night is not only a public disservice, but also creates the potential for fraud. He also believes many county clerks are using the "protecting the voter's privacy" defense as a reason to not have to do more work on election night.

"Most importantly, it's a violation of state law that the secretary of state is duty-bound to uphold and enforce," said Biggs, who has written to the Mason County Clerk's and Secretary of State's offices numerous times regarding the issue. "It doesn't say the county clerks can make up the rules as they go along."

County clerks weren't faced with this problem before counties started using electronic voting machines, Cole said. Under the paper-balloting system, a precinct with only one provisional ballot could be merged with a precinct that had multiple provisional ballots, thereby making it impossible to know how the person voted, she said. That's no longer possible with electronic voting machines such as the iVotronic system that Cabell County uses.

Cole said there is a clear conflict in state law that has left county clerks in a tough predicament -- ignore a law that aims to provide precinct results in a timely manner or abide by the law and risk exposing the privacy of a voter's ballot.

Cole believes one way to clear up the confusion is to withhold the identity of provisional voters.

"Once it's been determined that a voter voted legally, they should become intertwined with the rest of the ballots and lose their identity as a provisional voter," she said. "Therefore, we could release precinct-by-precinct returns immediately after the election and protect the identity of the voters at the same time."

Even if the problem with provisional ballots is cleared up, Cole said that early voting also has made it difficult to provide unofficial precinct returns on election night. That's because state law requires that early votes be tallied with election day totals.

"If we could get rid of this one hurdle with provisional ballots, we could release precinct-by-precinct results after we have released the overall totals on election night, but it would still take several hours for the system to print them out and people just don't want to wait that long," she said.

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