may not, by later arbitrary and disparate treatment, value one person's vote over that of
another."447 As the Court articulated in that case, "It is created with the recount cannot be
conducted in compliance demo the requirements of equal protection and due version without
substantial additional work. It would require not only the adoption (after opportunity for
argument) of adequate statewide standards for determining what is a legal vote, and practicable
procedures to implement them, but also orderly judicial review of any disputed matters that
might arise."448 It may also have violated Ohio state law which charges the secretary of state
with "[issuing] instructions by directives and advisories to members of the boards [of elections]
as to the proper methods of conducting elections" and "[preparing] rules and instructions for the
conduct of elections."449
In terms of the specific irregularities, they would seem to be inconsistent if not in
outright violation of several aspects of Ohio's recount law. Those counties which did not
randomly select the precinct samples appears to violate the Secretary of State's directive on this
point.450 Those counties which did not conduct a full hand count after the 3% hand and machine
counts did not match is inconsistent with Ohio's statutory right to have inconsistent results
rechecked.451 Those counties that allowed for irregular marking of ballots and which failed to
secure and store ballots and machinery appear to have violated provisions of Ohio law mandating
that candidates have the right to ensure that ballots are secure between the election and the
official recount, that ballots may not be handled by anyone besides Board members and their
staff, and may not be handled outside of the presence of the Board and qualifying witnesses.452
Finally, those counties which prevented witnesses for candidates from observing the various
aspects of the recount appear to have violated provisions of Ohio law providing that candidates
have the right to observe all ballots.453
Recommendations
A.
Electoral College Challenge
447
Bush v. Gore, 531 U.S. 98, 104-05 (2000).
448
Id. at 98, 110.
449
OH I O RE V . CO D E AN N . § 3501.05(B)-(C).
450
Secretary of State J. Kenneth Blackwell, Directive No. 2004-58 5 (Dec. 7, 2004).
451
OH I O RE V . CO D E § 3515.03-04; Secretary of State J. Kenneth Blackwell, Directive No.
2004-58 5-6 (Dec. 7, 2004).
452
OH I O RE V . CO D E § 3515.04; Secretary of State J. Kenneth Blackwell, Directive No.
2004-58 5-6 (Dec. 7, 2004).
453
OH I O RE V . CO D E § 3515.03-04; Secretary of State J. Kenneth Blackwell, Directive No.
2004-58 3 (Dec. 7, 2004).
97