On Oct. 27, Ysursa gave permission to counties to remove ballots from envelopes before Nov. 2; some clerks had asked to open ballots early wanting to reduce the election-day workload and to have time to flatten the folded ballots before running them through finicky optical scanners. The ballots are inside two envelopes.

If it weren’t allowed, “we might still be counting,” he said.

Ysursa also allowed early opening in 2008, but apparently no one noticed or cared.

This time around, Wayne Hoffman, executive director of the Idaho Freedom Foundation, took note and petitioned the Idaho Supreme Court on Nov. 1 to put a halt to ballot opening and to have justices declare that the action violated state statute 34-1008 governing the handling of absentee ballots. The code reads, in part,  “The ballot envelope shall not be opened until the ballots are counted.” Chief Justice Daniel T. Eismann dismissed Hoffman’s complaint, saying the court handled appeals of lower court rulings and could not consider it. Larry Spencer, a designated GOP poll watcher in Bonner County, also tried to stop the pre-election day opening with a petition to the district court there — the complaint was dismissed.

Hoffman said he has no problem with ballots being opened before election day, as long as it’s lawful and not policy created unilaterally for the sake of convenience.

“The major issue was doing something the Legislature said they weren’t supposed to do,” he said, adding that the secretary’s e-mailed directive, which gave instructions for keeping opened ballots secure, did not go far enough to guard against tampering by, say, ordering that ballots be numbered.

“It creates the opportunity for mischief,” Hoffman said.

Spencer told the Bonner County Daily Bee, “It’s very much about following the rules. Complacency in elections is a recipe for disaster.”

Ysursa said the statutes cited by Hoffman and Spencer (34-1007 and 34-2423, in addition to 34-2008) don’t apply to handling absentee ballots counted at a central location, but rather to handling them at the polls. He said the codes are antiquated.

“That was written for the days of old paper ballots,” he said.

And anyway, Ysursa said the law, specifically statute 34-202 grants him authority to let clerks open absentee ballots before election day. The statute says the secretary of state can issue directives to county clerks based on election law and does not address creation of policy.

Still,  he said he will seek to “fine tune” code next legislative session. He said state code should directly address the legality of, and process governing, opening absentee ballots before election day.

“I would feel more comfortable,” he said. “Let’s put it in the code and spell it out.”

Note: IdahoReporter.com is a product of the Idaho Freedom Foundation.

On Wednesday, Deputy Secretary of State Tim Hurst told clerks they could open ballots early; clerks wanting to cut the election-day workload and to have time to flatten the folded papers before running them through optical scanners on Tuesday had asked for permission. Creased ballots pass through scanners slower and can jam the machines, said Ada County Election Supervisor Jo Spencer.

Hurst advised clerks, in an e-mail, to figure how long opening ballots would take and begin opening that period of time before Tuesday.

Spencer said opening started Thursday in Ada County, which as of Friday afternoon had received 16,171 ballots. Ballot opening is also underway in Canyon County, said Terry Warwick, the election supervisor there; they’ve received 4,095 ballots so far. Both officials said counting won’t happen until Tuesday.

State law says county clerks can store ballots until election day but that “the ballot envelope shall not be opened until the ballots are counted, and that “absent electors’ ballot to be opened only at the polls.”

Hurst said state law neither expressly allows or prohibits opening ballots early, but he said the law allows the Secretary of State to issue directives to see that elections run smoothly. The statute cited, however, stipulates that directives be based on election laws.

This is the second time the Secretary of State’s office has allowed early opening — the other occasion was in 2008 when some counties switched to optical vote-tabulating scanners. However, Spencer, the Ada County election supervisor said punch-card ballots, pre-optical scanner, were also opened early so workers could complete counting on election day. She called it “standard procedure.”

Hurst said he was aware of, but knew nothing more about, the county’s early opening of punch-card ballots.

Addressing the necessity for opening ballots early, Hurst said, “The problem we’ve got, up until four years ago there was very little absentee voting taking place…It takes time to open ballots.” Officials expect close to 100,000 absentee ballots statewide this year.

Kootenai County Clerk Dan English in an e-mail noted that ballots are inside two envelopes.

“So if we ended up with 12,000 plus absentee ballots, that’s over 24,000 envelopes to be opened and then the ballots unfolded and checked to make sure they weren’t damaged,” he said. “That just plain takes a lot of time and a lot of people to accomplish.

“The other option is to wait on everything until Election Day but realizing that in large counties it would likely delay final results for multiple days.”

Hurst ordered clerks to:
• Keep opened ballots in a secure location with limited access.
• Have at least two people present when ballots are accessed.
• Arrange to have a law enforcement officer  or private security firm regularly check the ballot-storage site  during non-office hours.
• Inform observers approved by a candidate or party of when ballots are being opened and invite them to be present.

Spencer said Ada County ballots are being kept in a locked storage room. In Canyon County, ballots are in locked cabinets, the keys  to which are in a safe, Warwick said.

Despite the claim that the Secretary of State can unilaterally allow early opening, Hurst said the office will likely push legislation spelling out its legality next session.

Election officials in two of Idaho’s largest counties, Ada County in southwest Idaho and Kootenai County in north Idaho, expect turnout to match Ysursa’s prediction.  Canyon County officials expect a larger proportion of voters.  “We estimate it a little bit higher than that,” said Brad Jackson, Canyon County chief deputy clerk.  “You don’t want to run out of ballots.”  Jackson said the number of ballots is a practical concern, because new optical scan ballots can only be used for one election and cost 27 cents each.  “There are financial consequences, and that’s why we’re very careful.”

Other counties are expecting turnout below the secretary of state’s prediction.  “I don’t think it would be that high of a vote,” said Bannock County Clerk Dale Hatch, who said he expects turnout of 20 percent.

Bonneville County’s election supervisor, Bobbie Jockumsen, said she also expects turnout below a quarter of the population.  “It would be nice if we got that many but I’d be surprised,” she said.

“I would say tomorrow would be about normal for a primary election,” said Larry Haycock, elections supervisor for Twin Falls County.  “I don’t think it would go higher than 25 percent.”

County election officials said early voting totals, including mailed-in absentee ballots and in-person voting in clerks’ offices, are on pace with expectations.  “We’re right about where we usually are for a primary,” said Carrie Phillips, Kootenai County’s election supervisor.  In-person voting ended on Monday, though absentee ballots can be sent in on Tuesday.  Starting with the November general election, early voting at clerks’ offices will finish on the Friday before Election Day, thanks to a law approved by state lawmakers earlier this year.

Sen. Curt McKenzie, R-Nampa, said the changes would make it easier for people to vote absentee. He also said that the Friday cutoff for voting absentee in person at county clerks’ offices is designed to lower the chances of double voting. “That is something that is favored by the clerks so they can make sure their polling books are correct and up to date,” he said. “They want to make sure that the polling books sent out to the precincts on Tuesday are as accurate as possible.”

Senate Minority Leader Kate Kelly, D-Boise, voted against the proposal because she said changing the deadline for early voting would suppress voter turnout. “I don’t think that’s a good idea,” she said. She said voting early is one way to get more people to vote. “I think that’s an option that we should continue to give Idahoans. We should be taking actions to encourage voting, not discourage it.”

The final vote for the changes was 29-5, which sends the measure onto the House. Read IdahoReporter.com’s story on Senate approval of the changes to absentee balloting here. The text of the legislation is available here.

“We need to make sure that our military and overseas citizens are able to get their ballot and vote absentee more expeditiously,” said Tim Hurst, the secretary of state’s chief deputy. He said the changes to state law include that ballots be mailed 45 days before an election. People could apply to vote later than the 45-day cutoff. They could get the needed registration forms and ballots online, but would need to mail them in for their votes to be valid.

Lt. Col. David Dahle with the Idaho Army National Guard said Idahoans serving in the military support the change. “This is really trying to bring us into sync with the law the federal government passed,” Dahle said. “Idaho is likely to engage in a major deployment over the coming year, and this could affect hundreds of citizens.” There are tentative plans for about 2,000 Guard members to deploy to Iraq this fall, according to Dahle.

Hurst said that absentee voters would be exempt from the proposed requirement to show ID when voting that has been approved by the Idaho House.

The legislation would also end early voting in Idaho elections on the Friday before Election Day, rather than Monday, the day before Election Day. Early voting varies from county to county. Hurst said ending early voting a few days earlier would help county clerks check the list of early voters to ensure that no one votes twice in an election.

The Senate State Affairs Committee voted Wednesday to hold a full hearing on the voting legislation.