"We need procedures, and they need to be uniform for all the counties," Swensen said Wednesday, "including if and when the paper trail becomes something we refer to for the purposes of a recount."
A University of Utah elections expert was astonished at the state's lack of uniform recount standards, saying it's an invitation for lawsuits.
This theoretical discussion could become a sticky reality in the next few days for at least three Utah counties. In the Salt Lake County, Jim Bird edged out incumbent Rep. Peggy Wallace by just 24 votes. At a canvass on Tuesday, officials will count absentee and provisional ballots and certify the election results. Unless the margin expands, Wallace has the right to ask for a recount. Wallace is on vacation and could not be reached immediately for comment.
Piute and Wayne counties had squeaker county-commissioner races that also might require recounts.
Swensen has been asking for guidance on ballot recounts from the state since August. A week before the primary, Swensen exchanged e-mails with the lieutenant governor's office.
"It is extremely important that the state set forth guidelines for conducting recounts in advance of the election so all the counties can uniformly respond and prepare in case the need for a recount occurs," she wrote June 20 to Herbert and his deputy Mike Cragun. "On election day, if there are close races, we will be asked about our process. We need to be prepared to respond."
Cragun's response answered few questions.
He said a recount would consist of reconciling the polling place records, "re-accumulating the memory cards" and recounting the absentee ballots. "The permanent paper record comes into play only in an extreme situation," he said.
Swensen said Wednesday that Cragun's guidance is unsatisfying, "I don't know exactly what 'extreme' means." State law also is ambiguous on the matter, she said. It says only that the paper backup will be "available" for a recount. "It's unclear when and how and if the paper record will come into a recount," she said.
Cragun was out of the office Wednesday, but Herbert's chief of staff, Joe Demma, explained that each county would decide how to handle recounts. "It would be up to the clerk to make the decision." Demma later called back to clarify that the state would likely develop guidelines before the general election in November. "We are working through all that," Demma said. "We didn't have a magic wand to wave at all the issues." But he reiterated that Swensen "should implement a recount as she sees fit."
Without a statewide policy, Swensen said she likely would follow Cragun's suggestion and simply reconcile the electronic memory cards. Piute County Clerk Valeen Brown said she is not sure how she would go about a recount with the new machines. "I'll call the lieutenant's office and ask them for guidance," she said.
Thad Hall, a University of Utah assistant political science professor who was the principal investigator of the federal Election Assistance Commission Vote Count and Recount Project, said the state could find itself in a legal tangle with the federal government.
"The Help America Vote Act requires that all states have uniform standards of what constitutes a vote," Hall said. "The state should be providing uniform standards - that is their job, and that is what HAVA is about. If counties get to choose how it is done, the state is very likely going to get sued."
The state should have had uniform standards in place on Jan. 1. "Putting in guidelines [after the fact] is very problematic," Hall said. "It's not like nobody has done this before. They could have looked at how other states did it."
As for Cragun's suggestion that paper ballot can be ignored except in extreme situations, "The [Utah state] law suggests the paper ballot is the official ballot," Hall said. "This issue may have to be litigated to determine the answer."
Other states have procedures for recounts in place.
Michael Vu is director of Cuyahoga County Board of Elections in Ohio, which uses the same machines as Utah, down to the paper backup. "We have directives from the secretary of state's office on how to do a recount," he said. Ohio counties recount 3 percent of all the paper ballots cast in the race. Then, they check the paper summaries from the voting machines on the other 97 percent of the ballots and compare it to the electronic results.
"We have to use the paper record here. The secretary of state said, 'This is how elections are going to be recounted,' " said Vu, who was Salt Lake County's election manager until 2003.
The problem in brief: The new voting machines that seemed to work well during last week's primary election could generate big problems in races close enough for a recount because of a lack of uniform procedure.
What the law says: State law suggests that paper records of electronic votes come into play in recounts. It requires new voting machines to produce a permanent paper record that "shall be available as an official record for any recount or election contest."
What's at stake: State election law allows candidates to request a recount, at government expense, whenever the margin of victory is equal to or less than one vote per precinct. At least three races could be subject to recounts if the vote count holds in official canvasses next week.
- Sources: County Clerks, State Elections Office, Utah State Code
Three elections qualify for vote recounts
County races that face possible recounts include:
Salt Lake County:
State House Dist. 42
Jim Bird 981
Peggy Wallace (inc.) 957
Difference: 24 votes
Travas Blood 236
Bill Sudweeks 233
Difference: 3 votes
Derae Fillmore 291
Newell Harward 286
Difference: 5 votes