Call to Order and Roll Call
The1st meeting of the Task Force on Elections, Constitutional Amendments, and Intergovernmental Affairs of the Interim Joint Committee on State Government was held on Tuesday, August 24, 2010, at 1:00 PM, in Room 171 of the Capitol Annex. Senator Damon Thayer, Chair, called the meeting to order, and the secretary called the roll.
Members:Senator Damon Thayer, Co-Chair; Representative Darryl T. Owens, Co-Chair; Senators Walter Blevins Jr., Julian M. Carroll, Ernie Harris, Jimmy Higdon, Alice Forgy Kerr, Mike Reynolds, John Schickel, Elizabeth Tori, Johnny Ray Turner, and Robin L. Webb; Representatives Kevin D. Bratcher, Mike Cherry, Larry Clark, James R. Comer Jr., Mike Harmon, Melvin B. Henley, and Mary Lou Marzian.
Guests: Trey Grayson, Secretary of State; Sarah Ball Johnson, Executive Director of the State Board of Elections, and Katie Gabhart, General Counsel of the State Board of Elections.
Report on the May 2010 Primary
Trey Grayson, Secretary of State, and Sarah Ball Johnson, Executive Director of the State Board of Elections, first gave a report on the May 2010 primary. Secretary Grayson testified that approximately 32% of registered voters turned out to vote in the primary – about the average for “off-year” primaries, with numbers up a little more than normal in a few urban areas and down a little more than normal in a few rural areas. He also testified that severe spring flooding caused some equipment damage and destroyed one precinct polling location, but that the equipment was replaced and a new polling location was found prior to the primary. Secretary Grayson and Ms. Johnson both reported that voting in the primary was conducted fairly smoothly overall, with only a few glitches common to an “off-year” election cycle.
Help America Vote Act (HAVA) Update – Current Voting Equipment Used / Implementation of New Machines
Secretary Grayson and Ms. Johnson updated the Task Force on the expenditure of Help America Vote Act (HAVA) monies and gave a breakdown of the election machines being used in the counties. Secretary Grayson testified that machine selection is a local issue, and that, consequently, Kentucky counties currently use six (6) different combinations of traditional and voter accessible machine types. He did make particular note of the continued trend of counties moving away from older lever type machines and toward paper ballot / electronic scanner machines.
In response to questions by Senator Blevins and Senator Schickel, Secretary Grayson stated that seventy-six (76) counties currently use paper ballot, paper trail capable machines, with the majority of the larger population counties – except for Fayette County – included in that number. To illustrate the scope of the transition to paper trail capable machines, Secretary Grayson testified that over the last four years $28 million has been spent on buying new systems, with 80% of those new systems being machines that provide a paper trail of voting results.
In response to a question from Representative Harmon about post-election recanvass versus recount procedures, Secretary Grayson said that a recanvass is free and consists of only a check of machine records, whereas a recount is conducted at the expense of the requesting party and is a full or partial recount of cast votes. Secretary Grayson suggested that the General Assembly might want to look at improvements to the current recanvass, recount, and auditing procedures, particularly to provide for review procedures in close, minimally funded contests.
In response to a question from Senator Thayer, Secretary Grayson said that a recount with an electronic machine can now be conducted by printing ballot images, a requirement under HAVA, whereas prior to HAVA there was only a recanvass option with electronic machines because there was no ballot record and thus no capability to conduct a recount.
Overseas Balloting – Military and Overseas Voter Empowerment (MOVE) Act Requirements
Secretary Grayson and Ms. Johnson provided the Task Force with an overview of the Military and Overseas Voter Empowerment (MOVE) Act and SBE’s regulations to implement the act. Secretary Grayson noted that prior Kentucky law already implemented many of the provisions of the act, and that the General Assembly wisely gave SBE the authority to make the few needed changes by regulation in a 1991 act. He stated that military or overseas voters can request an absentee ballot by email, and that ballots are now transmitted to the voter by facsimile or electronic mail, with the voter returning the ballot by traditional mail in a sealed envelope. Secretary Grayson testified that 118 counties are fully compliant, and that the remaining two (2) counties will be compliant very soon. He also noted that Kentucky achieved an almost 96% return rate of ballots sent to military and overseas voters for the 2008 general election – an incredibly high rate of return relative to all absentee ballots.
In response to questions from Senator Thayer about ballot verification, Ms. Johnson said that the returned ballot can be verified by checking the requesting voter’s federal post card application, with a signature on file, and comparing it to the voter’s registration and / or absentee ballot. Ms. Johnson also testified that the absentee ballot must be mailed to the county clerk and received by 6:00 p.m. on the day of the primary or election.
Voter Identification – Current Requirements and Issues
Secretary Grayson and Katie Gabhart, General Counsel of SBE, discussed Kentucky’s current voter identification requirements, as well as the trend in some states to move to a more stringent photo identification requirement. After Senator Thayer introduced the issue and gave an overview of KRS 117.227, Secretary Grayson said that Kentucky has had a voter identification law since 1998, which was amended in 2002. Secretary Grayson stated that the current law requires precinct workers to confirm a voter’s identity by personal acquaintance or a document, such as a motor vehicle operator’s license, social security card, or credit card. He then gave statistics on the methods used in the 2010 primary, noting that personal acquaintance and motor vehicle license were nearly equal in number and that together these methods accounted for approximately 845,000 out of 900,000 total recorded voters.
Ms. Gabhart gave an overview of an Indiana law that requires all voters to present a government issued photo identification card prior to voting and the Supreme Court ruling upholding that law against a constitutional challenge. She said that Indiana’s law includes a backup procedure consisting of a full provisional ballot, with affidavit, in case a voter has any issue with having photo identification, and she noted that this seemed to be an important factor in the Court’s decision. Secretary Grayson followed up on this point by stating that Kentucky’s provisional ballot is not mandated to be a full ballot, and he noted that this could be an issue for consideration if the General Assembly looked to amend Kentucky’s voter verification procedures to include a stricter photo identification requirement.
Senator Webb expressed concerns about moving to a photo identification requirement absent evidence that there is currently an identification fraud issue in Kentucky’s elections. In response to her question about fraud, Secretary Grayson noted that he and SBE were not aware of any current identification fraud problems in Kentucky, but that evidence was presented in the Indiana case that it was present in other states. He also pointed out that a photo identification requirement was one recommendation of a non-partisan election commission headed by former President Jimmie Carter and former Secretary of State James Baker. However, Secretary Grayson also noted the high number of personal acquaintance verifications in Kentucky, especially in rural counties, and remarked that other means – such as requiring a voter to be verified by acquaintance with multiple precinct workers – might accommodate a desire for stricter standards while not creating an impediment to voting for some voters.
County Board of Elections – Member Recusal
The members of the Task Force then had a brief discussion on the requirements of members of County Boards of Elections stepping down from the board in a year when the member or a family member of the member is on the ballot. Some members of the Task Force expressed concern that certain members of county boards, such as the sheriff, are required to step down, whereas other members, such as the county clerk, are not. Secretary Grayson noted that one distinction is that the conduct of elections is a traditional, and somewhat full-time, role of the county clerk, but that it only constitutes a minor portion of a sheriff’s duties, and that if the county clerk were to step down it would possibly leave a greater void of elections knowledge on the county board.
Business concluded, and the meeting was adjourned at 2:30 p.m.