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Opening of ballots early could be skirting state law

by Jay Patrick
| October 31, 2010 9:00 PM

County clerks across the state are opening absentee ballots early despite state law that apparently bars doing so.

On Wednesday, Deputy Secretary of State Tim Hurst told clerks they could open ballots early; clerks wanting to cut the election-day workload and to have time to flatten the folded papers before running them through optical scanners on Tuesday had asked for permission. Creased ballots pass through scanners slower and can jam the machines, said Ada County Election Supervisor Jo Spencer.

Hurst advised clerks, in an e-mail, to figure how long opening ballots would take and begin opening that period of time before Tuesday.

Spencer said opening started Thursday in Ada County, which as of Friday afternoon had received 16,171 ballots. Ballot opening is also under way in Canyon County, said Terry Warwick, the election supervisor there; they've received 4,095 ballots so far. Both officials said counting won't happen until Tuesday.

State law says county clerks can store ballots until Election Day but that "the ballot envelope shall not be opened until the ballots are counted, and that "absent electors ballot to be opened only at the polls."

Hurst said state law neither expressly allows or prohibits opening ballots early, but he said the law allows the Secretary of State to issue directives to see that elections run smoothly. The statute cited, however, stipulates that directives be based on election laws.

This is the second time the Secretary of State's office has allowed early opening - the other occasion was in 2008 when some counties switched to optical vote-tabulating scanners. However, Spencer, the Ada County election supervisor said punch-card ballots, pre-optical scanner, were also opened early so workers could complete counting on election day. She called it "standard procedure."

Hurst said he was aware of, but knew nothing more about, the county's early opening of punch-card ballots.

Addressing the necessity for opening ballots early, Hurst said, "The problem we've got, up until four years ago there was very little absentee voting taking place ... It takes time to open ballots." Officials expect close to 100,000 absentee ballots statewide this year.

Hurst ordered clerks to:

• Keep opened ballots in a secure location with limited access.

• Have at least two people present when ballots are accessed.

• Arrange to have a law enforcement officer or private security firm regularly check the ballot-storage site during non-office hours.

• Inform observers approved by a candidate or party of when ballots are being opened and invite them to be present.

Spencer said Ada County ballots are being kept in a locked storage room. In Canyon County, ballots are in locked cabinets, the keys to which are in a safe, Warwick said.

Despite the claim that the Secretary of State can unilaterally allow early opening, Hurst said the office will likely push legislation spelling out its legality next session.