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Judge rejects Gray's request to extend D.C. voting

By Mike DeBonis
Washington Post Staff Writer
Wednesday, September 15, 2010; B08

District elections officials began counting ballots for races that included a hotly contested mayoral election Tuesday evening, minutes after a Superior Court judge rejected a request by candidate Vincent C. Gray to extend Election Day voting hours past 8 p.m. But the counting extended well into the night, delayed by slow-moving elections officials who expressed a surfeit of caution after faulty results fouled tallies two years ago.

Gray's petition came after a day of balloting marked with problems that, depending on whom you spoke to, were either alarmingly widespread or the normal "hiccups" to be expected in the debut of voting equipment.

Judge Joan Zeldon issued her ruling after a 45-minute emergency hearing, calling the Democratic mayoral challenger's petition an "eleventh hour" request based on a "thin reed" of evidence.

Andrew Sandler, an attorney for Gray, argued that the elections were conducted in a "wholly inadequate way" that deprived city residents of the right to vote. But attorneys for the D.C. Board of Elections and Ethics and Mayor Adrian M. Fenty (D) said Gray's concerns were overstated and poorly documented. Zeldon agreed.

Tuesday's primary marked the debut of two voting devices -- a new touch-screen electronic voting system and new optical-scan paper-ballot readers -- mandated by the D.C. Council after irregularities in the city's 2008 elections. Also, workers were dealing for the first time with electronic poll book equipment, which resembles a laptop computer and is used to enter information for unregistered voters who wish to cast provisional ballots.

The innovations -- coupled with the introduction of same-day registration, also mandated by the council -- placed new burdens on elections executives and poll workers.

Early Tuesday, it showed.

When polls opened, some workers encountered confusion regarding the "seals" placed on voting machines -- wires bound in plastic that prevent equipment tampering before the polls opened. Each ballot-scanning unit was sent to polling places with two seals, but documentation provided to employees indicated that each machine should have three intact seals.

At Precinct 151, in the Harris Education Center in Ward 7's Marshall Heights neighborhood, the seal-caused delays were compounded by the fact that poll workers couldn't get into the building upon arrival. Polls did not open for about 30 minutes.

By midday, Gray and his campaign had become highly critical of the elections board.

Spokeswoman Traci Hughes said the campaign had identified 15 precincts with various issues, including late openings, inoperable machines and unsecured ballots. "To have those types of irregularities is unconscionable," she said.

But Rokey W. Suleman II, executive director of the Board of Elections and Ethics, said some mishaps are inevitable when technology is debuted.

"Look at any jurisdiction across the country that has implemented new voting equipment, and you will see problems like we are experiencing today," he said. "We've had some machine issues. We've had some training issues. These are the hiccups I said would occur. The great majority of the city seems to be running smoothly."

After 8 p.m., the focus turned to the ballot count. The biggest question mark surrounded the new same-day registration law and the surge it was expected to cause in the number of provisional ballots, which are subject to review by the elections board.

In the 2006 city primary, provisional ballots accounted for less than 1 percent of the vote. But because the same-day registration law mandates that all new registrants cast provisional ballots, that percentage is expected to rise dramatically, to perhaps 10 percent of Democratic ballots cast.

The board will not rule on the provisional ballots until Sept. 22. Over the intervening days, elections staff will review and categorize each of the special ballots under the close watch of campaign attorneys, making a preliminary determination of whether they should be counted. The process was to begin early Wednesday, when voter cards will be mailed to each new voter who registered after the Aug. 16 deadline. If a card is returned by the U.S. Postal Service, it will trigger further investigation by elections board staff. Starting Tuesday, voters who cast provisional ballots can visit http://www.dcboee.org to check whether their vote will be counted.

Under District law, all ballots must be counted within 10 days of the election. The final three days of that period are reserved by law for the review of provisional ballots.

The final say on the provisional ballots belongs to the three-member elections board, which is operating with only two members after the qualifications of several of Fenty's appointments were questioned by D.C. Council members.

Not all of the provisional ballots have been cast by same-day registrants. Most commonly, a voter will have changed addresses within the District but not updated his or her voter registration. Such "same-day" changes of address have long been allowed. And under federal law, residents who think they should be able to cast a vote must be allowed to. Those not on the rolls are given provisional ballots, also referred to in District law as "special ballots."

It is unclear which mayoral candidate the uncounted votes might favor.

The Fenty campaign had planned to leverage its significant fundraising and organizational advantage into a heavy early-voting push, one that took full advantage of the same-day registration opportunity. But Gray had the support of a hefty union get-out-the-vote push.

A review of voter counts at the various early polling sites indicated heavier turnout in areas thought to be Fenty strongholds, though any city voter was free to vote at any of the five sites. A Gray campaign representative last week conceded that Fenty held a lead among early voters.

Once the absentee and provisional votes are tallied, the elections board will vote to certify the election. If, after certification, any candidate's margin of victory is less than 1 percent of the number of votes cast in the race, the board conducts an automatic recount. If the margin is greater than 1 percent, a candidate may still request a recount, with the caveat that if it does not change the outcome, the recount's expense is charged to the losing campaign. The D.C. Court of Appeals is also empowered to order a recount if so petitioned by a voter.

Tuesday's balloting was the culmination of a crash 10-month program to prepare the city for a host of new voting procedures.

After the 2008 voting season was marred by mishaps -- insufficient paper ballots for the February presidential primary, a malfunctioning voting machine cartridge in the September local primary and mismailed absentee ballots in the general election -- the D.C. Council mandated a sweeping revision to voting equipment and procedures last November.

The new law also introduced two major changes to city elections. The District joined about 30 states that allow early voting without having to provide an excuse. In prior elections, voters were required to attest that they would not be able to visit their precinct on Election Day for one of several reasons. This time, voters could cast ballots starting Aug. 30 at five sites scattered throughout the city. Some 22,000 voters took advantage of the opportunity.

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