Opinion
Opinion By: Chris Gorman, Attorney General; Ross T. Carter, Assistant Attorney General
You have asked what procedures should be followed in an election recanvass when a voting machine cannot be tested by operating the counter.
KRS 117.305(1), which sets forth the procedures for conducting a recanvass, contains this sentence: "The registering counter of each candidate who requested a recanvass and the counter of the candidate's opponent shall be reset before it is tested, after which it shall be operated at least one hundred (100) times." You state that the design of at least one brand of electronic voting machine does not allow the counter to be reset and tested.
KRS 117.375 to 117.393 authorize the state board of elections to approve electronic voting systems. The requirements for approval for such a system are set forth in KRS 117.381. That statute does not state that an electronic voting machine must be capable of being operated in the manner described in the recanvass statute. As a result, the state board of elections has approved for use electronic voting machines that cannot be reset and tested by officials when a recanvass has been requested.
The obvious purpose of the quoted sentence from the recanvass statute is to determine whether the machine functioned properly in recording the votes cast on election day. It is our understanding that electronic voting machines are equipped with self-diagnostic capability that allows election officials to determine whether the machine operated properly during the election. Thus, while it is impossible to comply literally with the recanvass statute, it is possible to comply with the statute's purpose by running the self-diagnostic routine.
Since the legislature has granted the state board of elections authority to approve the use of electronic voting machines that cannot be reset and tested in the precise manner described in KRS 117.305(1), we conclude that the legislature must have contemplated that such machines would be tested in whatever manner is suitable to the particular system in use. Thus we conclude that the testing of an electronic voting machine during a recanvass should be accomplished by running the self-diagnostic routine supplied by the manufacturer of the machine.