Gripes about county clerks opening absentee ballots before election day has Secretary of State Ben Ysursa looking to change some laws.
On Oct. 27, Ysursa gave permission to counties to remove ballots from envelopes before Nov. 2; some clerks had asked to open ballots early wanting to reduce the election-day workload and to have time to flatten the folded ballots before running them through finicky optical scanners. The ballots are inside two envelopes.
If it weren't allowed, "we might still be counting," he said.
Ysursa also allowed early opening in 2008, but apparently no one noticed or cared.
This time around, Wayne Hoffman, executive director of the Idaho Freedom Foundation, took note and petitioned the Idaho Supreme Court on Nov. 1 to put a halt to ballot opening and to have justices declare that the action violated state statute 34-1008 governing the handling of absentee ballots. The code reads, in part, "The ballot envelope shall not be opened until the ballots are counted." Chief Justice Daniel T. Eismann dismissed Hoffman's complaint, saying the court handled appeals of lower court rulings and could not consider it. Larry Spencer, a designated GOP poll watcher in Bonner County, also tried to stop the pre-election day opening with a petition to the district court there — the complaint was dismissed.
Hoffman said he has no problem with ballots being opened before election day, as long as it's lawful and not policy created unilaterally for the sake of convenience.
"The major issue was doing something the Legislature said they weren't supposed to do," he said, adding that the secretary's e-mailed directive, which gave instructions for keeping opened ballots secure, did not go far enough to guard against tampering by, say, ordering that ballots be numbered.
"It creates the opportunity for mischief," Hoffman said.
Spencer told the Bonner County Daily Bee, "It’s very much about following the rules. Complacency in elections is a recipe for disaster."
Ysursa said the statutes cited by Hoffman and Spencer (34-1007 and 34-2423, in addition to 34-2008) don't apply to handling absentee ballots counted at a central location, but rather to handling them at the polls. He said the codes are antiquated.
"That was written for the days of old paper ballots," he said.
And anyway, Ysursa said the law, specifically statute 34-202 grants him authority to let clerks open absentee ballots before election day. The statute says the secretary of state can issue directives to county clerks based on election law and does not address creation of policy.
Still, he said he will seek to "fine tune" code next legislative session. He said state code should directly address the legality of, and process governing, opening absentee ballots before election day.
"I would feel more comfortable," he said. "Let's put it in the code and spell it out."
Note: IdahoReporter.com is a product of the Idaho Freedom Foundation.
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