How could Kentucky officials test an electronic voting machine during a recanvass if its counter could not be reset?

Plain-English summary

A Kentucky election recanvass statute called for resetting candidate counters and operating them at least 100 times. A questioner said an approved electronic voting machine could not be tested that way. The AG concluded that election officials should instead run the machine manufacturer's self-diagnostic routine. In the opinion's view, that method addressed the statute's aim of checking whether the machine had recorded votes properly, while accommodating a machine the state had approved for use.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Election officials conducting a recanvass

The opinion dealt with an electronic machine whose counter could not be reset and exercised as KRS 117.305(1) described. Because Kentucky had authorized approval of such systems, the AG read the testing requirement in light of its purpose and identified the manufacturer's self-diagnostic routine as the suitable method for that machine.

Candidates requesting a recanvass

For an electronic machine that could not undergo the specified counter test, the AG said officials should run its self-diagnostic routine to check whether it had recorded votes properly on election day.

Common questions

Did Kentucky's recanvass law require officials to reset every machine counter 100 times?

The statute described a reset and at least 100 operations of the candidate and opponent counters. The AG said that literal method could not be used on some approved electronic machines and treated their self-diagnostic routine as fulfilling the test's purpose.

What test did the AG recommend for an electronic machine that could not be reset?

It identified the self-diagnostic routine supplied by that machine's manufacturer.

Why could officials use a different test during the recanvass?

The AG reasoned that the legislature authorized the state board to approve electronic systems without requiring that they support the older counter-reset procedure. The AG described the recanvass test's obvious purpose as checking whether the machine had recorded votes properly.

Background and statutory framework

KRS 117.305(1) set out the counter-reset test for recanvasses. KRS 117.375 to 117.393 authorized the state board of elections to approve electronic systems, and KRS 117.381 stated approval requirements without demanding a resettable counter. The AG reconciled the provisions for an approved machine that could not undergo the test described in the recanvass provision.

Citations and references

• KRS 117.305(1): recanvass counter test discussed in the request.
• KRS 117.375 to 117.393 and KRS 117.381: authority and requirements for approving electronic voting systems.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-020.htm

Original opinion text

OAG 93-20

February 25, 1993

Charles D. Williams

Williams & Williams

P.O. Box 157

Munfordville, Kentucky 42765

Dear Mr. Williams:

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.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General